judgement:
Appeal No. 2069 of 1982.
From the Judgment and Order dated 23 4 1982 of the Andhra Pradesh Administration Tribunal in Representation Petition No 508 of 1982.
Mrs. C. Markandeya for the Appellants.
PG NO 807 B. Kanta Rao and G.N. Rao for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
This appeal by special leave is filed against the Judgment dated 23.4.1982 of the Andhra Pradesh Administrative Tribunal in Representation Petition No 508 of 1982 issuing a direction to the State Government to refrain from making any direct recruitment against temporary vacancies in the cadre of Assistant Engineers under the Andhra Pradesh Panchayat Raj Engineering Service (Special) Rules (hereinafter referred to as 'the Special Rules ') as amended by G.O. Ms. No. 227 dated 28.4.1980 and issuing certain other ancillary directions.
The facts of the case are as follows.
Recruitment to the Andhra Pradesh State and Subordinate Services was governed by the Andhra Pradesh State and Subordinate Services Rules, 1962 (hereinafter referred to as 'the General Rules ').
Rule 6 of the General Rules which dealt with the method of recruitment provided that where the normal method of recruitment to any service, class or category was neither solely by direct recruitment nor solely by transfer but was both by direct recruitment and by transfer, the proportion or order in which the special rules concerned may require vacancies to be filled by persons recruited direct or by those recruited by transfer shall be applicable only to substantive vacancies in the permanent cadre.
In those Rules the expression special rules meant the rules in Part III of the General Rules applicable to each service or class of service and included ad hoc rules applicable to temporary posts.
On 23.3.1963 the Governor of Andhra Pradesh promulgated in exercise of his powers conferred by proviso to Article 3()9 of the Constitution of India the Special Rules providing for the constitution of and the method of recruitment to the Andhra Pradesh Panchayati Raj Engineering Service and the Special Rules were given retrospective effect from November 1, 1960 Under the Special Rules the Andhra Pradesh Panchayati Raj Engineering Service was to consist of four categories of officers, namely, Chief Engineer, Superintending Engineer, Executive Engineer and Assistant Engineer.
The post of Assistant Engineer was required to be filled up as follows: "4 Assistant (1) By direct recruitment.
Engineer or (2) By transfer from among (a) Junior Engineer ;or PG NO 808 (b)Supervisors of the Andhra Pradesh Panchayati Raj Engineering Subordinate Service . . . . . . . . . (c) Out of every 8 vacancies among Assistant Engineers, 3 shall be filled up or reserved to be filled up by direct recruits on the results of the competitive examinations and the remaining 5 by transferees.
Note: Rules 6, 8(a)(i) and 29(b) of the General Rules for the Andhra Pradesh State and Subordinate Services shall not apply to the appointment of Assistant Engineers by direct recruitment in the Andhra Pradesh Panchayati Raj Engineering Service . . . . . . . . .
By Notification bearing G.O.Ms.
No 125 dated 28.5.1973 Explanation (c) in the Special Rules relating to the method of recruitment of Assistant Engineers was substituted by a new explanation which read as follows: "(c) Out of every 8 vacancies among Assistant Engineers the 2nd, 5th and 8th vacancies shall he filled in by direct recruits on the results of the competitive examination and the rest of the vacancies by transfer " Thus by the year 1978 the posts of Assistant Engineers (now designated as Deputy Executive Engineers) were be filled up either by direct recruitment or by transfer from among Junior Engineers or Supervisors or Draftsmen Ist Grade of Andhra Pradesh Panchayati Raj Subordinate Service and if no qualified or suitable candidates were available for recruitment as stated above by transfer from any other service or on tenure basis.
Out of every eight vacancies in posts of Assistant Engineers the 2nd, 5th and 8th vacancy had to be filled in by direct recruits on the result of the competitive examination and the rest of the vacancies by transfer The Special Rules further provided that rules 6, 8(a)(i) and 29(b) of the General Rule would not apply to the appointment of Assistant Engineers by direct recruitment in the Andhra Pradesh Panchayati Raj Engineering Service and thereby it became permissible to the State Government to PG NO 809 take into consideration the number of temporary vacancies also in addition to the subqs vacancies in any year for purposes of recruitment.
Three out of eight vacancies (which included both substantive and temporary vacancies) could be filled up by direct recruitment.
In other words 37 1/2 per cent of the total number of vacancies (both substantive and temporary vacancies) in the cadre of Assistant Engineers could be filled by direct recruitment.
The Chief Engineer of the Andhra Pradesh Panchayati Raj Engineering Service reported to the State Government in his letter dated 25.11.1979 that the total number of posts of Assistant Engineers (Permanent and Temporary) excluding the cyclone posts available were 203 by the end of May, 1979.
Out of the said 203 posts the number of posts available for direct recruitment was 75 (203 x 3/8) and that out of them 38 vacancies of Assistant Engineers had either been filled in by direct recruitment or notified to the Public Service Commission for selection and that the balance number of vacancies available for direct recruitment were 37 for the years 1978 and 1979.
Out of these 37 remaining vacancies, as 23 posts had been filled by Assistant Engineers selected in direct recruitment, an estimate of 15 vacancies of Assistant Engineers was furnished to the Public Service Commission on 3.6.1978.
For the recruitment years 1978 and 1979 the estimate of vacancies were due with the Public Service Commission in the first week of May, 1978 and of May, 1979.
In accordance with the above rule then in force the State Government took the decision in February, 1980 to notify 18 vacancies for the recruitment year 1978 and 18 vacancies for the recruitment year 1979.
The Chief Engineer was informed of the decision of the State Govern ment to recruit the above said 18 plus 18, i.e., 36 vacancies in addition to the 15 vacancies already notified to the Public Service Commission and was asked to sent the zone wise break up of vacancies keeping in view the rules of special representation for Scheduled Castes, Scheduled Tribes, Backward Classes etc.
After the receipt of the proposals from the Chief Engineer on 6.8.1981 the estimate of vacancies for the years 1978 and 1979 was also sent to the Public Service Commission for recruitment of Assistant Engineers.
In the meanwhile the Public Service Commission had published an advertisement in or about September, 1980 inviting applications for recruitment of Assistant Engineers directly specifying 8.1.1981 as the last date for submitting the applications.
In that notification the Public Service Commission had intimated that 15 vacancies were available for recruitment as per the first communication received by it from the State Government.
When the process of recruitment was in progress some of the officer.
who were working as In charge Assistant Engineers or Junior Engineers PG NO 810 in the Panchayati Raj Department Engineering Service made representations to the State Government raising objection to the proposed direct recruitment of 51 Assistant Engineers on the basis of the total number of substantive and temporary vacancies which had arisen in the years 1978 and 1979 relying upon an amendment which had been made to the Special Rules by G.O.Ms.
No. 227 dated 28.4.1980 by which Explanation (c) and the proviso thereunder in the Special Rules had been substituted by the following explanation and proviso: "37 1/2 of the substantive vacancies arising in the category of Assistant Engineers shall be filled by direct recruitment on the results of the competitive examination and the remaining 62 l/2 by promotion or transfer as indicated under explanation (d) below . " Their contention was that the 51 vacancies which had been notified to the Public Service Commission for direct recruitment could not be filled up any longer by direct recruitment as according to them after the amendment of the Rules on 28.4.1980 only 37 1/2 per cent of the substantive vacancies could be filled up by direct recruitment They contended that the 5 1 vacancies which had been notified to the Public Service Commission had been arrived at by taking into consideration temporary vacancies also and that was not permissible after the amendment.
They further urged that under the Special Rules, as amended on 28.4.1980, only 8 vacancies could be filled up by direct recruitment When the above representation made by them did not elicit any positive reply from the State Government, they instituted Representation Petition No. 508 of 1982 on the file of the Andhra Pradesh Administrative Tribunal for injunction restraining the State Government and the Public Service Commission from recruiting 51 persons as direct recruits to the cadre of Assistant Engineers The petition was opposed by the State Government It pleaded that the amendment made on 28.4 1980 to the Special Rules was only prospective in effect and had no effect on the vacancies which had arisen prior to the date on which the amendment was made and, therefore, it was open to the State Government to fill by direct recruitment 37 1/2 per cent of the total number of vacancies (substantive as well as temporary) in the cadre of Assistant Engineers which had arisen before the amendment.
The Tribunal rejected the contention of the State Government and held that it was not permissible for the State Government to make recruitment to the 51 vacancies after the Special Rules were amended on 28.4.1980 irrespective of the fact that the vacancies in question had arisen prior to the PG NO 811 date of the amendment.
Accordingly the Tribunal directed the State Government and the Public Service Commission to refrain from making any direct recruitment against the temporary vacancies in the Andhra Pradesh Panchayati Raj Engineering Service contrary to the Special Rules as they stood amended from 28.4.1980.
Aggrieved by the decision of the Tribunal some of the candidates, who had been selected by the Public Service Commission as Assistant Engineers, filed a special leave petition in this Court under Article 136 of the Constitution of India requesting this Court to grant special leave to appeal against the judgment of the Tribunal.
On 4.6.1982 this Court granted special leave to appeal against the judgment of the Tribunal and also stayed the operation of the judgment of the Tribunal.
Thereafter the State Government issued a notification bearing G.O.Ms.
No. 525 dated 30.10.1982 appointing the appellants, respondent No. 4 and 48 others as Assistant Engineers (now called Deputy Executive Engineers) on temporary basis under rule 10(a)(i)(1) of the General Rules.
44 of the 51 candidates so appointed joined service as Deputy Executive Engineers.
All those who joined the service accordingly have continued to be in the service of the State of Andhra Pradesh till now.
It is not necessary for purposes of this judgment to decide all the contentions which had been raised by the petitioners who had filed the representation petition before the Andhra Pradesh Administrative Tribunal since the Tribunal has allowed the petition only on one ground, namely, that the recruitment in question was governed by the Special Rules as amended on 28.4.1980 and not by the rules which were in force when the vacancies in question arose.
It is clear from the Special Rules as they were in force prior to the amendment on 28.4.1980 that it was open to the State Government to fill 37 1/2 per cent of the vacancies (both substantive and temporary) in the cadre of Assistant Engineers by direct recruitment It is also not in dispute that during the years 1978 and 1979 the position of the vacancies was such that it was permissible for the State Government to appoint 51 Assistant Engineers by direct recruitment.
The only question which has now to be considered is whether the amendment made on 28.4.1980 to the Special Rules applied only to the vacancies that arose after the date on which the amendment came into force or whether it applied to the vacancies which had arisen before the said date also.
The crucial words in the Explanation which was introduced by way of amendment in the Special Rules on 28.4.1980 were "37 1/2 per cent of the substantive vacancies arising in the category of Assistant Engineers shall be PG NO 812 filled by the direct recruitment".
If the above clause had read "37 1/2 per cent of the substantive vacancies in the category of Assistant Engineers shall be filled by the direct recruitment" perhaps there would not have been much room for discussion.
The said clause then would have applied even to the vacancies which had arisen prior to the date of the amendment but which had not been filled up before that date.
We feel that there is much force in the submission made on behalf of the appellants and the State Government that the introduction of the word 'arising ' in the above clause made it applicable only to those vacancies which came into existence subsequent to the date of amendment.
In Eramma vs Verrupanna & Ors., the words "the property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter" in section 8 of the came up for consideration.
In that case this Court held that the words "the property of a male Hindu dying intestate shall devolve" occurring in section 8 made it very clear that the property whose devolution was provided for by that section must be the property of a person who had died after the commencement of the and it could not be the property which belonged to a Hindu male who had died before the said Act came into force The effect of the use of the word `arising ' in the Special Rules qualifying the word `vacancies ' is also the same.
The clause which was introduced in the Special Rules by the amendment made on 28.4.1980 cannot, therefore, be interpreted as having any effect on the vacancies which had arisen prior to the date of the amendment.
We do not find any indication in the amendment that was made on 28 4 1980 that it would be applicable to the vacancies which had arisen prior to the date of the amendment even by necessary implication In the instant case the State Government had taken the decision even before the amendment came into force to fill up the vacancies by direct recruitment according to the law prevailing then.
Had it been the intention of the State Government, while promulgating the amendment that the amendment should be applicable to the vacancies which had arisen prior to the date of the amendment simultaneously the State Government would have addressed a letter to the Public Service Commission to make recruitment in accordance with the Special Rules as amended on 28 4.1980 No such action was taken by the State Government in this case.
We may at this stage refer to another decision of this Court in Y. V. Rangaiah and Others etc.
vs J. Sreenivasa Rao and Others, [ 1983] H 3 S.C.C. 264 in which in a similar situation this Court has observed in Paragraph 9 at page 289 thus: PG NO 813 "The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules.
It is admitted by counsel for both the parties that henceforth promotion to the post of Sub Registrar Grade II will be according to the new rules on the zonal basis and not on the State wide basis and, therefore, there was no question of challenging the new rules But the question is of filling the vacancies that occurred prior to the amended rules.
We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules " The facts of the case before us are in no way different from the facts involved in the above decision In view of the foregoing we are of the view that the observations made by the Tribunal to the following effect, namely: "In this case the rules for recruitment have been changed on 28.4.1980.
Hence, prima facie it would not be legal to make direct recruitment against temporary vacancies, even if the vacancies were at an earlier date ear marked for direct recruits . .
In these circumstances, there is, in my opinion, no scope for direct recruitment against temporary vacancies after 28.4.1980, i.e., the date on which the rules were amended as stated above." are unsustainable.
We hold that the amendment made on 28 4 1980) does not apply to the vacancies which had arisen prior to the date of the amendment We accordingly set aside the judgment of the Tribunal and remand the case to it again to decide in the light of the above observations the other contentions which had been raised by the persons who had filed the Representation Petition before the Tribunal and to dispose of the case on the basis of the findings to be recorded by it on those contentions The appeal is accordingly disposed of.
There is no order as to costs.
R.S.S. Appeal disposed of.

summary:
The Public Service Commission invited applications for direct recruitment against 51 vacancies of Assistant Engineers in the Andhra Pradesh Panchayat Raj Engineering Service.
The number of vacancies was arrived at under the provisions of the Andhra Pradesh Panchayat Raj Engineering Service (Special) Rules 1963, on the basis of the total number of substantive as well as temporary vacancies which had arisen in the years 1978 and 1979.
Explanation (c) in the special Rules relating to the method of recruitment of Assistant Engineers, prior to its amendment on 28.4.1980.
provided that "out of every 8 vacancies among Assistant Engineers, the 2nd, 5th and 8th vacancies shall be filled in by direct recruitment . ".
The amended Explanation (c) provided that "37 1/2 of the substantive vacancies arising in the category of Assistant Engineers shall be filled by direct recruitment . " Some of the officers who were working as In charge Assistant Engineers or Junior Engineers in the Panchayat Raj Department Engineering Service made representations to the state Government raising objection to the number of vacancies notified for direct recruitment, contending that the 51 vacancies notified could not be filled up any longer by direct recruitment as, according tn them, after the amendment of the Rules on 2X.4.1980, 37 l/2 per cent of only substantive vacancies could be filled up by direct recruitment.
while the vacancies notified had taken into consideration temporary vacancies also When their representation failed to elicit any positive reply from the State Government, they instituted a petition before the Andhra Pradesh Administrative Tribunal.
Before the Tribunal the State Government pleaded that the amendment made on 28.4.1980 to the Special Rules was only prospective in effect and had no effect on the PG NO 805 PG NO 806 vacancies which had arisen prior to that date.
The Tribunal rejected the contention of the State Government.
Setting aside the judgment of the Tribunal and remanding the case to it again, this Court, HELD: (1) It is clear from the Special Rules as they were in force prior to the amendment on 28.4.1980 that it was open to the State Government to fill 37 1/2 per cent of the vacancies (both substantive and temporary) in the cadre of Assistant Engineers by direct recruitment.
[811F] (2) The crucial words in the Explanation which was introduced by way of amendment in the Special Rules on 28.4.1980 were "37 1/2 per cent of the substantive vacancies arising in the category of Assistant Engineers shall be filled by direct recruitment.
" The introduction of the word 'arising ' in the above clause made it applicable only to those vacancies which came into existence subsequent to the date of amendment.
[811H;812A B] (3) This Court does not find any indication in the amendment that was made on 28.4.1980 that it would be applicable to the vacancies which had arisen prior to the date of the amendment even by necessary implication.[812E F] (4) The amendment made on 28.4.1980 therefore does not apply to the vacancies which had arisen prior to the date of the amendment.
[813F] Eramma vs Verrupanna & Ors., and Y.V. Rangaiah and Others vs J. Sreenivasa Rao & Ors., 11983] 3 SCC 264, referred to.


judgement:
Appeal No. 231 of 1954.
Appeal by special leave from the judgment and order dated August 17, 1953, of the Railway Rates Tribunal at Madras in Complaint Case No. 5 of 1952.
section C. Isaacs and R. C. Prasad, for the appellant.
H. N. Sanyal, Additional Solicitor General of India, H. J. Umrigar and R. H. Dhebar, for the respondents.
March 24.
The Judgment of the Court was delivered by GAJENDRAGADKAR J.
This is an appeal by special( leave against the order passed by the Railway Rates Tribunal, hereinafter called the tribunal, at Madras dismissing the appellant 's complaint under section 41 of the Indian Railways Act (9 of 1890), to be described hereinafter as the Act.
The appellant, Raigarh Jute Mills Ltd., is a limited company owning jute mills which are ,situated in Raigarh in Madhya Pradesh.
For the production of jute goods, the appellant has to bring raw material, viz., jute from many railway booking stations outside the State of Madhya Pradesh and there is no other means of transport except by rail both for bringing jute to the mills and for carrying the finished products to ports for export to foreign countries.
In its complaint, the appellant has alleged that the railway administration had contravened the provisions of section 28 of the Act and also that the charges levied by the railway administration for the freight of the appellant 's goods were unreasonable and excessive.
According to the appellant, the Assam Railway (now North Eastern Railway) offered special rates for jute from certain stations in its zone to Kanpur and the basis of these rates was cheaper than that of the rates charged between Raigarh and some other stations on the East Indian Railway and the Bengal Nagpur Railway (now the Eastern Railway).
Both the Eastern Railway and the 238 North Eastern Railway are State Railways and as such it was not open to either of them to mete out differential treatment.
The appellant further contended that the other jute ' mills in West Bengal and Madras had facilities for direct shipment of their goods without carriage by rail to the ports, whereas, in the case of the appellant, the railways charged freight up and down in respect of the entire traffic of the appellant ; inevitably the prices of the products of the.
appellant could not be brought down to the competitive level for the purposes of export out of, or sale in, India.
The appellant annexed to its complaint table,, of goods rates of the two railways and urged that the unusual increase in the rates charged to the appellant was telling very heavily on the appellant as compared to other mills.
According to the appellant, ' the freight rates should be on the basis prevailing in the year 1949 as the market had gone down to the level existing in that year.
The appellant 's complaint therefore prayed that, since the prevailing rates were unreasonable and excessive, the tribunal should issue directions for the introduction of fair and reasonable rates.
When the complaint was first filed, both the East Indian Railway with its headquarters at Calcutta and the Bengal Nagpur Railway with its headquarters at Kidderpore were impleaded as respondents.
Subsequently, the railways were reorganized and the complaint was then suitably amended with the result that the Eastern Railway with its headquarters at Calcutta was substituted for both the original respondents.
Later on, the Union of India was impleaded as respondent 2 to the complaint.
Both the respondents denied.
the allegations made in the complaint.
It was alleged on their behalf that the existing tariff rates for the movement of jute were reasonable and not excessive.
It was also alleged by the respondents that, beyond drawing attention to special rates which applied to traffic from certain stations on the Assam Railway section of the NorthEastern Railway to Kanpur, the appellant had not submitted concrete evidence, facts or figures to make out even a prima facie case that the prevailing tariff 239 rates for jute were unreasonable.
The respondents ' case was that the fact that the appellant 's mill was situated far away from the port and as such had to incur additional cost had, no relevance or bearing on the case made out in the complaint and the same cannot be treated as a ground for consideration of any special rates.
The Union of India has specifically ' raised the additional plea that even after reorganization the two railways in question were separate entities and were working in the different regions having more or less divergent local conditions, and so they did not constitute one railway administration within the meaning of the Act and section 28 was therefore inapplicable.
On these contentions four principal issues were framed by the tribunal.
All the three members of the tribunal found that the freight rates for the transport of jute to Kanpur from certain stations in the Katihar section of the North Eastern Railway were lower than those for its transport to Raigarh.
In fact this position was conceded before the tribunal.
On the question as to whether the disparity in the said rates amounted to " undue " preference under section 28 of the Act, the members of the tribunal took different views.
The President Mr. Lokur and Mr. Roy, member, were of the opinion that the two railways constituted one railway administration.
They thought that it was just and equitable to hold that, although a railway administration may mean a manager, yet in this case it also meant the Government.
They were, however, not satisfied that the disparity in the rates justified the appellant 's complaint about " undue " preference.
That is why they rejected the appellant 's grievance that the railway administration had contravened the provisions of section 28 of the Act.
Mr. Subbarao, the third member of the tribunal, was inclined to take the view that, though the final control of both the railways may be with the Government or its representative, viz., the Railway Board, the actual management of the different zones was with the respective managers, and so the two railways in question cannot be said to constitute one railway administration.
Proceeding to deal 240 with the appellant 's complaint on this basis, Mr. Subbarao rejected its argument of " undue " preference on the ground that section 28 was inapplicable in the present case.
In the result, the issue about " undue " preference was held against the appellant by all the.
members of the tribunal.
In regard to the appellant 's case that the increase in the freight for the transport of jute to Raigarh was unreasonable and excessive, the President Mr. Lokur and Mr. Sabbarao found that the plea had not been proved by any evidence.
On the other hand, Mr. Roy made a finding in favour of the appellant and held that the rates in question were shown to be unreasonable and excessive.
Since the majority decision, however, was against the appellant on this point, the appellant 's complaint was dismissed.
It is against this order of the tribunal dismissing its complaint that the appellant has come to this Court in appeal by special leave.
Before dealing with the merits of the contentions raised by the appellant, it would be convenient to refer briefly to the provisions of the Act in regard to the constitution of the tribunal as they were in operation at the material time.
Section 26 bars jurisdiction of ordinary courts in regard to acts or omissions of the railway administration specified in the section.
Section 34 deals with the constitution of the Railway Rates Tribunal.
According to this section, the tribunial consists of a President and two other members appointed by the Central Government.
The tribunal had to decide the complaint filed before it with the aid of a panel of assessors as prescribed under section 35 of the Act.
Section 46 lays down that the decision of the tribunal shall be by the majority of the members sitting and shall be final.
It is obvious that this provision about the finality of the tribunal 's decision cannot affect this Court 's jurisd iction under article 136 of the Constitution.
Let us now set out the material provisions of the Act on which the appellant 's complaint is founded.
Section 28 provides: " A railway administration shall not make or give any undue or unreasonable preference or advantage to, 241 or in favour of, any particular person or railway administration, or any particular description of traffic, in any respect whatsoever, or subject any particular person or railway administration or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever." A breach of the provisions of section 28 by the railway ' administration may give rise to a complaint under section 41 (1) (a).
This section provides for complaints against a railway administration on five different grounds enumerated in cls.
(a) to (e) and it requires that the tribunal to which such complaints may be made shall hear and decide them in accordance with the provisions of ch.
In the present case, we are concerned with cls.
(a), (b) and (c) of section 41, sub section
Clause (a) covers cases of alleged contravention of the provisions of section 28; el.
(b) deals with cases where it is alleged that the administration is charging station to station rates or wagon load rates which are unreasonable; and cl.
(c) deals with cases where the railway administration is levying charges which are unreasonable.
Then section 41, sub section
(2) (i) lays down that, as soon as it is shown that the railway administration charges one trader or class of traders or the traders of any local area lower rates for the same or similar goods than it charges to other traders or class of traders or to the traders in another local area, the burden of proving that such lower charge does not amount to " undue" preference shall lie on the railway administration; and section 41 (2) (ii) lays down that, in deciding the question of " undue " preference, the tribunal may, in addition to any other considerations affecting the case, take into consideration whether such lower charge is necessary in the interest of the public.
The decision of the questions raised by the appellant before us will depend upon the scope and the effect of the provisions contained in sections 28 and 41 of the Act.
Section 28 is obviously based on the principle that the power derived from the monopoly of railway carriage must be used in a fair and just manner in respect of all persons and all descriptions of traffic 31 242 passing over the railway area.
In other words, equal charges should normally be levied against persons or goods of the same or similar kinds passing over the same or similar area of the railway lines and under the same or similar circumstances; but this rule does not mean that, if the railway administration charges unequal rates in respect of the same or similar class of goods traveling over the same or similar areas, the inequality of rates necessarily attracts the provisions of section 28.
All cases of unequal rates cannot necessarily be treated as cases of preference because the very concept of preference postulates competition between the person or traffic receiving preference and the person or traffic suffering prejudice in consequence.
It is only as between competitors in the same trade that a complaint of preference can be made by one in reference to the other.
If there is no such competition then no complaint of preference can be made even though the charges levied against similar goods may not be equal.
It may be possible to assume that there is competition between similar commodities put on the market in the same area for domestic consumption; but no such competition can be assumed between traffic of goods for export and traffic of similar goods for home consumption.
It is only when goods or persons can be said to be _pari passu that a question of preference arises and so it is where the competition between two persons or classes of goods is either admitted or proved that the question of the application of section 28 would ever arise.
Then again, even as between competing goods or persons, it would not be enough to prove mere preference to attract the provisions of section 28, for theoretically every case of preference may not necessarily be a case of " undue " preference.
It is only when the tribunal is satisfied that the railway administration has shown " undue " preference in favour of a particular class of goods that a complaint can be successfully entertained under section 41 (1) (a).
The position under section 28 thus appears to be clear.
Whoever complains against the railway administration that the provisions of section 28 have been contravened must establish that 243 there has been preference between himself and his goods on the one hand and his competitor and his goods on the other; and where it appears to the tribunal that such preference is " undue " preference, the complainant would be entitled to adequate relief under section 41 (1) (a) of the Act.
It is true that, while enquiring into the complaint ' made under section 41, as soon as the complainant shows inequality of rates and proves that the competing goods are charged less than his own, the onus shifts on to the railway administration to prove that such lower charge does not amount to " undue " preference.
The initial burden to prove preference is on the complainant; but when the said burden is discharged by the proof of unequal rates as between the complainant and his competitor, it is for the railway administration to prove that the preference is not " undue ".
In the absence of satisfactory evidence adduced by the railway administration in justification of unequal rates, the tribunal may hold that the unequal rates complained against by the complainant amounts to " undue " preference.
If, on the other hand, the railway administration leads evidence to show justification for the inequality of the rates, then notwithstanding the existence of unequal rates, the tribunal need not necessarily find that the administration has contravened the provisions of section 28, because it is only where " undue " preference by the administration is shown that it can be said to have contravened the said section.
In considering the question as to whether the alleged preference amounts to " undue " preference or not, the tribunal may also be entitled to consider whether the lower charge levied by the administration in respect of the competing class of goods was necessary in the interest of the public.
That is the result of the provisions of section 41, sub section
(2)(i) and (ii).
In this connection we may refer to some of the English decisions to which our attention was invited.
In Lever Brothers, Limited vs Midland Railway Company (1), it was held that the railway was not called upon to justify the disparity of rates on which the (1) (1909) XIII Railway and Canal Traffic Cases, 301.
244 complaint by Lever Brothers, Limited, was based because the applicants had failed to establish that Messrs. J. W. & Sons, Limited, in respect of whom the lower rate was charged, were the competitors of the applicants.
Referring to the fact that the rates charged to the two respective companies were different, Vaughan Williams L. J. observed that he did not think that the difference in rates itself constituted any undue preference by the Midland Railway Company of Watsons as competitors of Levers.
One of the reasons why the complaint made by Lever Brothers, Limited, failed was that it was not shown that Messrs. J. W. & Sons, Limited, were competitors of Lever Brothers ' Limited, and that eliminated the application of section 27 (1) of the Railway and Canal Traffic Act of 1888.
Similarly in Lancashire Patent Fuel Company Limited vs London and North Western Railway Company (1), it was held that no competition existed between coal carried for shipment, and that carried for the trader and so the application made on the ground of undue preference was incompetent.
It was proved in this case that the applicant 's slack was carried by the railway companies at a higher rate than that for slack carried for shipment; but the complaint based on this unequal charges was rejected on the ground that " it cannot be said that the slack carried by the railway companies for the applicants ever comes into competition with the slack which is carried by the railway companies for ordinary shipment ".
On the other hand, in The Nitshill and Lesmahagow Coal Company vs The Caledonian Railway Company (2), it was held that the railway administration had shown undue preference because it was proved that the goods unequally charged were commercially and substantially of the same description and there was competition between them.
Whether or not the goods were commercially and substantially of the same description was the point in issue between the parties; but the complainant 's case was accepted and it was found that, on the whole, the two articles (1) (1904) XII Railway and Canal Traffic Cases, 77, 79.
(2) (1874) 11 Railway and Canal Traffic Cases, 39, 45.
245 were substantially of the same description " and cannot but be regarded as competitive and that there ought not to be any difference in the rates at which they are carried ".
This decision shows that if unequal rates are charged for the carriage of similar or same goods travelling over similar or same areas, then the, inference as to " undue " preference can be drawn unless the preference alleged is otherwise shown to be justified by valid reasons.
In Denaby Main Colliery Company vs Manchester, Sheffield, and Lincolnshire Railway Company (1), the Earl of Selborne, in his speech, observed that he did not think it possible to hold (looking at the context in which the material words stand) that " the mere fact of inequality in the rate of charge when unequal distances are traversed can constitute a preference inconsistent with them ".
It may be pointed out incidentally that the provisions of section 2 of the Railway and Canal Traffic Act, 1854 (17 & 18 Vict. c. 31) are substantially similar to the provisions of section 28 in our Act.
Thus it is clear on these authorities that a complaint made under section 41(1)(a) can succeed only if it is shown that preference has been shown by the railway administration to the complainant 's competitor and the administration has failed to adduce evidence in justification of the said preference.
It will now be necessary to consider the merits of the appellant 's case in the light of this legal position.
The application made by the appellant does not in terms allege any "undue" preference at all.
Mr. Isaacs, for the appellant, conceded that the application had not been happily worded; but his comment was that the pleadings of both the parties are far from satisfactory.
That no doubt is true; but if the appellant wanted to make out a case against the railway administration under section 41(1)(a), it was necessary that he should have set up a specific case of "undue" preference.
The application does allege that the mills at Kanpur are able to carry raw jute at a lower rate but there is no allegation that between the goods of the Kanpur mills and the goods (1) ,114.
246 of the appellant there is any competition in the market.
On the other hand, the application refers to the advantage enjoyed by the jute mills in West Bengal and ' Madras over the appellant.
Reading the complaint filed by the appellant as a whole, it would .appear that the complaint by necessary implication refers to the competition between the goods of West Bengal and Madras mills on the one hand and the ap pellant 's goods on the other.
The appellant no doubt also avers that the rate charged for the transport of the goods are unreasonable and excessive but that is another part of the complaint which we will consider separately.
It would, therefore, be difficult to accept Mr. Isaaes argument that the appellant 's complaint should be read as including an allegation about competition between the appellant and the Kanpur mills.
If no such allegation has been made by the appellant in his complaint, it would not be fair to criticise the respondents for not denying the existence, of any such competition.
But apart from this technical difficulty, the appellant cannot even refer to any evidence on which it would be possible to base a conclusion as to the competition between the goods produced by the Kanpur mills and the appellant 's goods.
Mr. Isaacs has taken us through the evidence of Amritlal Bannerjee, Mustafi and Paul; but we have not been able to see any statement made by any of these witnesses which would show that there was a competition between the two sets of goods.
On the other hand, such meagre evidence as is available on the record would seem to suggest that the goods produced by the Kanpur mills are sent to local markets for domestic consumption and do not enter the field of competition with the appellant 's goods at all.
That presumably is the reason why the appellant could not allege any competition between its goods and the goods of the Kanpur mills and none of the witnesses could speak to it.
Mr. Isaacs was thus constrained to refer to the statement (R 18) filed by the respondents for the purposes of showing that the appellant 's goods travelled to some centres in India which may be covered by the goods of the Kanpur 247 mills.
In our opinion, this is an argument of desperation and it cannot help the appellant.
One of the questions which was apparently raised before the tribunal was in respect of the volume of traffic and it is in connection with this particular part of the dispute that relevant statements were prepared by the respondents and filed before the tribunal.
It would, we think, be unreasonable to make use of some of the statements contained in these documents for the purpose of deciding whether the appellant 's goods and the goods produced by the Kanpur mills enter into competition in the markets in India.
If the appellant had attempted to lead evidence on this point the respondents would naturally have had an opportunity to rebut that evidence.
It is too late now to make out a case of this alleged competition and seek to prove it by stray statements contained in the document filed by the respondents before the tribunal for a wholly different purpose.
That being the position of the evidence on the record we have no difficulty in accepting the view of the tribunal that competition between the goods of the Kanpur mills and the appellant 's goods has not been alleged or proved in the present proceedings.
If that be the true position, then the mere fact that the goods of the Kanpur mills are transported at more favourable rates would not attract the provisions of section 28 of the Act.
The next question which remains to be considered is whether the appellant has proved that the rates charged by the administration in respect of the goods transported by the appellant are per se unreasonable.
On this point the appellant has led no evidence at all.
In its complaint it has no doubt averred that there has been an undue increase in the freight charges but no allegation is made as to why and how the, actual charges are unreasonable.
It appears that the appellant is under a disadvantage because its mills are situated at Raigarh in Madhya Pradesh far away from the shipping centres of transport and the competing mills in West Bengal and Madras are very near the export centres: but the fact that by its geographical location the appellant has to incur, additional 248 expenses of transport would not be relevant in considering the reasonableness of the freight charges.
It is common ground that the freight charges are levied at the same rate by the railway administration in respect of either raw jute or jute products against all the mills.
There is no inequality of rates so far as the mills in this zone are concerned.
The appellant appears, to have argued before the tribunal that the rates of freight leviable by the railway administration should have some relation to the costs incurred by the appellant in producing the jute goods as well as the commodity prices prevailing in the market.
This argument has been rejected by the tribunal and we think rightly.
It seems to us clear that the costs incurred by the appellant which are partly due to the appellant 's geographical position can have no relevance whatever in determining the reasonableness or otherwise of the railway freight charged by the railway administration.
Nor can the railway freight move up and down with the rise and fall of the commodity prices.
In dealing with the question about the reasonableness of the railway freight, it would naturally be relevant to consider mainly the working costs of the railway administration and other material circumstances.
When a complaint is made against the railway administration under section 41(1)(b) or (c), the onus to prove the alleged unreasonableness of the freight rests on the complainant and if the complainant makes no effort to discharge this onus his plea that the rates are unreasonable must inevitably fail.
It appears that Mr. Roy, one of the members of the tribunal, was inclined to take the view that the special rates given to the Kanpur mills in Katihar area should be regarded as normal and reasonable rates; and since the rates charged to the appellant were higher than the said rates, he held that the rates charged against the appellant are unreasonable per se.
In our opinion, this view is entirely erroneous.
The rates charged to the Kanpur mills are admittedly special rates.
Whether or not these concessional or special rates should have been granted to the Kanpur mills is a matter with which the present enquiry is 249 not concerned.
There may be reasons to justify the said concessional rates; but it is plain that the special or concessional rates charged by the railway administration in another zone cannot be treated as the sole basis for determining what rates should be charged by the railway.
administration in other zones, and so we do not see how the appellant can successfully challenge the majority finding of the tribunal that the rates charged against the appellant 's goods are not shown to be unreasonable per se.
In the result we must hold that the tribunal was justified in rejecting the complaint made by the appellant.
The appeal therefore fails and must be dismissed with costs.
Before we part with this case, we would like to mention two points which were sought to be argued before us by the learned Additional Solicitor General on behalf of the respondents.
He challenged the correctness of the majority view of the tribunal that the two railways operating in two different zones in question constituted one railway administration within the meaning of section 3, sub section
Alternatively, he argued that, even if the two railways were held to constitute one railway administration and that the disparity in charges amounted to the granting of " undue " preference to the Kanpur mills, section 46 of the Act was a complete answer to the complaint under section 41(1)(a).
Since we have held in favour of the respondents on the points urged before us by Mr. Isaacs on behalf of the appellant, we do not propose to deal with the merits of these contentions.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant company owned jute mills situated in Raigarh in the State of Madhya Pradesh, and it had to bring raw material from many railway booking stations outside the State as there was no other means of transport both for bringing jute to the mills and for carrying the finished products to ports for export to foreign countries; the jute mills in West Bengal and Madras had facilities for direct shipment of their goods without carriage by rail to the ports, and so the prices of the products of the appellant could not be brought down to the competitive level for the purposes of export out of, or sale in, India.
The appellant filed a complaint before the Railway Rates Tribunal under section 41 of the Indian Railways Act, 1890, on the allegations that the Railway administration had contravened the provisions of section 28 of the Act in that it had offered special rates for certain stations in its zone to Kanpur which were cheaper than those that were charged between Raigarh and some other railway stations, and that the charges levied for the freight of the appellant 's goods were unreasonable and excessive.
The Tribunal found that competition between the goods of the Kanpur mills and the appellant 's goods had not been alleged or proved in the present case Held, that the mere fact that the goods of the Kanpur mills are transported at more favourable rates would not attract the provisions of section 28 of the Act, unless there is competition between the goods of the Kanpur mills and the appellant 's goods, and undue preference has been shown by the railway administration to the appellant 's competitor.
Nitshill and Lesmahagow Coal Company vs The Caladonian Railway Company, (1874) 11 Railway and Canal Traffic Cases, 39, Denaby Main Colliery Company vs Manchester, Sheffield and Lincolnshire Railway Company, , Lancashire Patent Fuel Company Limited vs London and North Western Railway Company, (1904) XII Railway and Canal Traffic Cases, 77 and Lever Brothers, Limited vs Midland Railway Company, (1909) XIII Railway and Canal Traffic Cases, 301, relied on.
Held, further, that in considering the question as to the reasonableness of the railway freight the relevant factors would mainly be the working costs of the railway administration and 237 other material circumstances, and neither the geographical location of the appellant on account of which it has to incur additional expenses of transport, nor the cost incurred in producing the jute goods nor the commodity prices prevailing in the market, have any relevance.


judgement:
ivil Appeal No. 3129of 1988 From the Judgment and Order dated 7.7.1987 of the Patna High Court in Civil Revision No. 128 of 1987 (R).
R.K. Jain, Rakesh K. Khanna and R.P. Singh for the Appellant.
R.N. Sachthey and Anip Sachthey for the Respondents.
The following Order of the Court was delivered: ORDER Special leave granted.
The appellant is an employee in the Balihari Colliery of the Respondent No. 1 and in 1986 was working as an electrical helper.
On the allegation that he physically assaulted a supervising officer by name S.K. Mandal, he was subjected to disciplinary proceedings as also a criminal prosecution.
Since the disciplinary proceeding as also the criminal trial were taken simultaneously, the appellant filed a civil action in the court of Munsif at Dhanbad asking for injunction against the disciplinary action PG NO 823 pending criminal trial.
On 6.12.1986, the Munsif made an order staying further proceedings in the disciplinary action till disposal of the criminal case.
The appeal of the Respondent No. 1 against the order of learned Munsif was dismissed on 31st March, 1987, by the appellate court.
Thereupon the Respondent No. 1 moved the High Court in its revisional jurisdiction.
The High Court by its order dated 7.7.1987 held: "First information report was lodged against the opposite party (appellant) and the same was pending before the competent court.
Meanwhile the petitioners (respondents) started departmental proceeding against the opposite party.
The opposite party filed a suit before the trial court for declaration that appointment of the Enquiry Officer was illegal and for restraining the petitioners permanently from continuing with the departmental proceeding during the pendency of the criminal case.
That was allowed by the trial court and confirmed by the lower court.
There is no bar for an employer to proceed with the departmental proceeding with regard to the same allegation for which a criminal case is pending.
I am, therefore, of the opinion that the courts below were wrong in granting injunction in favour of the opposite party.
In the result, this application is allowed and the order impugned is set aside.
" According to Mr. Jain for the appellant, the legal position settled by this Court supported the stand that the disciplinary action had to be stayed till the criminal case was over.
He relied upon the decisions in The Delhi Cloth and General Mills Ltd. vs Kushal Bhan, ; and Tata Oil Mills Co. Ltd. vs Its Workmen, ; He also referred in the course of his submission to the decisions of different High Courts in support of his propositions.
Two cases out of the several ones of the High Courts he relied upon are Khusi Ram vs Union of India, and Project Manager, ONGC vs Lal Chand Wazir Chand Chandna, Pathak CJ., as he then was, In the Himachal case indicated that fair play required the postponing of the criminal trial and Thakkar J. as our learned brother then was in the Gujarat case had also taken a similar view.
PG NO 824 We would like to point out that there are also authorities in support of the position that there is nothing wrong in parallel proceedings being taken one by way of the disciplinary proceeding and the other in the criminal court.
Reference may be made to decision of this Court in Jang Bahadur Singh vs Baij Nath Tiwari, [1969] I SCR 134 and some decisions of High Courts such as Rama P.C. vs Superintendent of Police, Kolar & Anr., AIR ; Ali Mohd. & Ors.
vs Chairman T.A. & C. Udhampur, ; Moulindra Singh vs The Deputy Commissioner & Ors., l564 and Shaikh Kasim vs Superintendent of Police Office, Chingletut, Mr. Jain contended that we should settle the law in a straight jacket formula as judicial opinion appeared to be conflicting.
We do not propose to hazard such a step as that would create greater hardship and individual situations may not be available to be met and thereby injustice is likely to ensue.
In the Delhi Cloth & General Mills ' case (supra), it was pointed out by this Court: "It is true that very often employers stay enquiries pending the decision of the criminal trial courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against an employee.
In Shri Bimal Kanta Mukherjee vs M/s. News man`s Printing Works, [l956l LAC 188, this was the view taken by the Labour Appellate Tribunal.
We may, however, add that if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced . " .
In Tata Oil Mills ' case (supra), Gajendragadkar, CJ, spoke for a three Judge Bench thus: "There is yet another point which remains to be considered.
The Industrial Tribunal appears to have taken the view that since criminal proceedings had been started against Raghavan, the domestic enquiry should have been stayed pending the final disposal of the said criminal PG NO 825 proceedings.
As this Court has held in the Delhi Cloth and General Mills Ltd. vs Kushal Bhan, it is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal court, the employer, should stay the domestic enquiry pending the final disposal of the criminal case . .".
In Jang Bahadur 's case (supra) this Court said: "The issue in the disciplinary proceedings is whether the employee is guilty of the charges on which it is proposed to take action against him.
The same issue may arise for decision in a civil or criminal proceeding pending in a court.
But the pendency of the court proceeding does not bar the taking of disciplinary action.
The power of taking such action is vested in the disciplinary authority.
The civil or criminal court has no such power.
The initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending court proceeding.
The employee is free to move the court for an order restraining the continuance of the disciplinary proceedings.
If he obtains a stay order, a wilful violation of the order would of course amount to contempt of court.
In the absence of a stay order the disciplinary authority is free to exercise its lawful powers.
The view expressed in the three cases of this Court seem to support the position that while there could be no legal bar for simultaneous proceedings being taken.
yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case In the latter class of cases it would be open to the delinquent employee to seek such an order of stay or injunction from the Court.
Whether in the facts and circumstances of a particular case there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether the disciplinary proceedings should be interdicted, pending criminal trial As we have already stated that it is neither possible nor advisable to evolve a hard and fast, straight jacket formula valid for all cases and of general application without regard to the particularities of the individual situation.
For the disposal of the present case, we do not think it necessary to say, anything more, particularly when we do not intend to lay down any general guideline.
PG NO 826 In the instant case, the criminal action and the disciplinary proceedings are grounded upon the same set of facts.
We are of the view that the disciplinary proceedings should have been stayed and the High Court was not right in interfering with the trial court 's order of injunction which had been affirmed in appeal.
The appeal is allowed and the order of the High Court is vacated and that of the trial court as affirmed in appeal is restored.
The appellant shall be entitled to costs.
Hearing fee is assessed at Rs.2,000.
We would like to point out that for the first time in this Court, the enquiry report in the disciplinary proceedings was produced.
We express no view about it.
M.L.A. Appeal allowed.

summary:
The appellant, an employee of Respondent No. 1, was subjected to disciplinary proceedings as also a criminal prosecution simultaneously on the allegation that he physically assaulted a supervising officer.
He filed a civil action in the trial court asking for injunction against the disciplinary action pending criminal trial.
The trial court stayed further proceedings in the disciplinary action till disposal of the criminal case.
In appeal, the appellate court affirmed the aforesaid order.
However, the High Court allowed the Revision Application of the Respondent and set aside the impugned order on the ground that there is no bar for an employer to proceed with the departmental proceeding with regard to the same allegation for which a criminal case is pending.
Allowing the appeal to this Court, HELD: l.
The order of the High Court is vacated and that of the trial court as affirmed in appeal is restored.
The criminal action and the disciplinary proceedings were grounded upon the same set of facts.
The disciplinary proceedings should have been stayed and the High Court was not right in interfering with the trial court 's order of injunction which had been affirmed in appeal.
[826A B] 2(i) While there could be no legal bar for simultaneous proceedings being taken, yet, there may be cases where it would be appropriate to defer disciplinary proceedings awaiting disposal of the criminal case.
In the latter class of cases it would be open to the delinquent employee to seek such an order of stay or injunction from the court.
[825E F] 2(ii) Whether, in the facts and circumstances of a particular case, there should or should not be such simultaneity of the proceedings would then receive judicial consideration and the Court will decide in the given circumstances of a particular case as to whether the PG NO 821 PG NO 822 disciplinary proceedings should be interdicted, pending criminal trial.
[825F G] The Delhi Cloth and General Mills Ltd. vs Kushal Bhan, ; ; Tata Oil Mills Co. Ltd. vs Its Workmen, ; and Jung Bahadur Singh vs Baij Nath Tiwari, ; , relied upon.
Rama P. C. vs Superintendent of Police, Kolar & Anr., AIR ; Ali Mohd. & Ors.
vs Chairman T.A. & C. Udhampur, ; Moulindra Singh vs The Deputy Commissioner & Ors., 1564; Shaikh Kasim vs Superintendent of Post Office, Chingletut, AIR 1965 Mad. 502; Khusi Ram vs Union of India, and Project Manager, ONGC vs Lal Chand Wazir Chand Chandna, , referred to.
It is neither possible nor advisable to evolve a hard and fast, straight jacket formula valid for all cases and of general application without regard to the particularities of the individual situation.


judgement:
ivil Appeal Nos.
3159 3170 of 1988.
From the Judgment and Order dated 30.12.1985 of the Andhra Pradesh High Court in Appeal No. 2578 to 2583 of 1985.
K. Rajendra Chowdhary and A. Subba Rao for the Appellants.
P.A. Choudhary, T.V.S.N. Chari, Mrs. Sunita Rao, Badrinath and K. Ram Kumar for the Respondent.
The Judgment of the Court was delivered by JAGANNATHA SHETTY, J.
We grant Special Leave and proceed to dispose of these appeals.
These appeals are from a judgment dated 3() December, 1985 of the High Court of Andhra Pradesh in a batch of appeals arising out of land acquisition proceedings.
The lands in question are situated in Hasanapur of Karimnagar Taluk.
The lands are acquired for the purpose of submergence under Lower Manair Dam Reservoir project.
SeCtion 4(1) notification was issued on 24 March, 1977.
The land acquisition officer by his award dated 15 July, 1978 awarded compensation ranging from Rs.1320 to 4,000 per acre depending upon the nature of the land and the crop grown PG NO 855 thereon.
The District Judge on a reference under section 18 of the Act enhanced the compensation to Rs.85,000 per acre regardless of categorisation.
The High Court by the Judgment under appeals herein has remanded the matter for fresh disposal with liberty for both parties to adduce additional evidence.
The high Court has specifically observed that the District Judge should exclude exhibit A. 4 and exhibit A. 5 from consideration.
exhibit A. 4 and exhibit A. 5 are the awards pertaining to acquisition of certain lands situated in Karimnagar.
Thereunder, compensation at the rate of Rs. 85,000 per acre under exhibit A.4 and Rs.70,000 under exhibit A.5 were given.
The High Court has observed that the lands concerned in those awards are not comparable lands.
Hence these appeals.
The first question that arises for consideration is whether exhibit A.5 should be altogether excluded or it should be kept open for being considered by the District Judge on merits.
This is the specific question on which this Court issued notice on the Special Leave petition.
If first part of the question is answered in the negative, then the second question for consideration is whether the matter should go back to District Judge for fresh disposal.
We heard counsel on both sides on the merits of the entire matter.
The claimants have alleged that the lands acquired are fit for residential houses as they are adjacent to industrial estate.
MARKFED factory, Vanaspathi complex, diary farm and Padmanagar colony.
The lands have potentiality of being used as house sites and the like of which was sold for Rs.5,000 per gunta prior to the present acquisition.
The lands are near to Karimnagar town The town is developing into a modern town in Andhra Pradesh, with a lot of industrial, commercial, educational activities.
They have claimed compensation at Rs.1,60,000 per acre for dry lands and a little more for wet lands.
The evidence in support of their claim consists of the testimony of one of the claimants (PW 1).
He has given a rosy picture of the location and value of the lands.
Another witness (PW 2) has corroborated the version of PW 1.
Besides we have the evidence of a Commissioner.
Mr. G. Santosh Reddy Advocate was appointed as Commissioner in this case.
He has filed his report exhibit A.7 and Plan.
PG NO 856 The High Court appears to have brushed aside all that evidence.
The High Court compared the combined map of karimnagar and Hasnapur village (exhibit A.3) with the sketch map (exhibit A.8) prepared by the Commissioner.
The High Court was of opinion that the lands concerned in exhibit
A.5 are abutting Karimnagar town.
They are close to MARKFED and other industrial institutions and buildings, but not the lands in question.
The High Court said: "whereas admittedly the lands in question are 3 kms from Karimnagar town".
This statement has been seriously disputed before us.
It is said that the claimants or their counsel did not admit, and indeed could not have made that admission suicidal to their case.
Be that as it may, the distance determined by the High Court whether on admission or by comparison of village maps makes little difference.
The distance from Karimnagar town should not be a ground to reject exhibit A.5.
If the lands are suitable for house sites, exhibit A.5 would still be relevant.
The location of lands will have to be borne in mind while ascertaining the market value.
As to the nature of lands we have the evidence of the Commissioner.
He is an Advocate of the local Bar.
He had gone to the spot.
He had a topographic surveying.
According to his evidence, the lands in question are similar in nature and of value as the lands covered under the Award exhibit A.5.
The lands are nearer to collectorate complex, RTC Bus stand and other housing complex.
He has stated that the lands are more suitable for house sites than for agriculture.
There is no reason to discard this evidence.
We cannot therefore, reject exhibit A.5 altogether.
The next question for consideration is whether it is now necessary to keep the remand order undisturbed.
Counsel for the claimants ' is totally against the matter being sent back to the District Judge.
He urged that the claimants are small holders and agriculturists.
they are hard pressed and unable to fight another round of litigation.
I hey are prepared to accept any compensation which this Court may think fit to award.
This plea of the counsel has an appealing simplicity.
It reflects the facts of life and problems of litigation.
We can very well appreciate the anxiety and need of claimants to get compensation here and now.
No matter what it is.
The lands were acquired as far back in 1977.
One decade has already passed.
Now the remand means another round of litigation.
There would be further delay in getting the compensation.
After all money is what money PG NO 857 buys.
What the claimants could have bought with the compensation in 1977 cannot do in 1988.
Perhaps, not even one half of it.
It is a common experience that the purchasing power of rupee is dwindling.
With rising inflation, the delayed payment may, lose all charm and utility of the compensation.
In some cases, the delay may be detrimental to the interests of claimants.
The Indian agriculturists generally have no avocation.
They totally depend upon land.
If uprooted, they will find themselves nowhere.
They are left high and dry.
They have no savings to draw.
They have nothing to fall back upon.
They know no other work.
They may even face starvation unless rehabilitated.
In all such cases, it is of utmost importance that the award should be made without delay.
The enhanced compensation must be determined with out loss of time.
The appellate power of remand, at any rate ought not to be exercised lightly.
It shall not be resorted to unless the award is wholly unintelligible.
It shall not be exercised unless there is total lack of evidence.
If remand is imperative, and if the claim for enhance I compensation is tenable, it would be proper for the appellate court to do modest best to mitigate hardships.
The appellate court may direct some interim payment to claimants subject t o adjustment in the eventual award.
Counsel for the State argued that there is no material on record for this Court to determine compensation and the remand may be useful for the claimants themselves.
He however.
reluctantly indicated his own estimate of the market value in the event of this Court giving a quietus to the litigation.
It seems to us that this is not a case ot no evidence.
This is a case of both relevant and irrelevant evidence mixed up together.
We must exclude the irrelevant and exaggerated claim.
The claimants have not justified the award generously given by the District Judge.
Rs. 85,000 per acre appears to be on the high side as against the award exhibit A.5.
In the first place, Section 4 notification concerned in that Award was dated 16 February l978.
It was almost a year after the notification in these cases.
Secondly, the lands therein were close to the town of Karimrtagar.
The situation is not similar in this case.
Here the lands are 3 kms awy from Karimnagar town.
It is in this background I we have carefully considered the rough estimates given by counsel on both sides.
We have also examined the relevant material.
A distance of 3 kms from a growing town of District headquarters should not however.
make a world of difference.
We are of opinion that the compensation at the rate of Rs.25,000 per acre regardless of categorisation would be sufficient to meet the ends of justice.
It is needless to state that the claimants are entitled to mandatory solatium PG NO 858 at 30 per cent and also statutory interest.
In the result, we allow these appeals and set aside the judgments of the High Court and District Judge.
There shall be an award in terms as indicated above.
In the circumstances of the case, we make no order as to costs.
M.L.A. Appeals allowed.

summary:
The appellants were awarded by the Land Acquisition Officer compensation ranging from Rs.1,320 to 4,000 per acre depending upon the nature of the land acquired in 1977.
The District Judge enhanced the compensation to Rs.85,000 per acre on the ground that compensation @ Rs.85,000 per acre under Award exhibit A.4 and Rs.70,000 under Award exhibit A.5 had already been awarded in respect of acquisition of certain other similar lands situated in Karimnagar.
However, the High Court, in appeal, remanded the matter for fresh disposal and also observed that the District Judge should exclude exhibit A.4 and exhibit A. 5 from consideration as the land concerned in those awards are not comparable lands.
In appeals to this Court by Special Leave, it was contended on behalf of the appellants that the matter should not be remanded to the District Judge, since the claimants being small holders and agriculturists, are hard pressed and unable to fight another round of litigation and that they are prepared to accept any compensation which this Court may think fit to award.
Allowing the appeals, HELD: (1) The Judgments of the High Court and the District Judge e are set aside.
The compensation at the rate of Rs.25,000 per acre regardless of categorisation would be sufficient to meet the ends of justice.
It is needless to state that the claimants are entitled to mandatory solatium at 30% and also statutory interest.
[857G H] 2(i) It is of utmost importance that the award should be made without delay.
The enhanced compensation must be determined without 108s of time.
[857C] PG NO 853 PG NO 854 2(ii) The appellate power of remand at any rate ought not to be exercised lightly.
It shall not be resorted to unless the award is wholly unintelligible.
It shall not be exercised unless there is total lack of evidence.
If remand is imperative, and if the claim for enhanced compensation is tenable, it would be proper for the appellate court to do modest best to mitigate hardships.
The appellate court may direct some interim payment to claimants subject to adjustment in the eventual award.
[857C D] 3.
This is not a case of no evidence.
This is a case of both relevant and irrelevant evidence mixed up together.
Therefore irrelevant and exaggerated claim must be excluded.
[857F] In the instant case, the location of lands will have to be borne in mind while ascertaining the market value.
The Commissioner has stated that the lands are more suitable for house sites than for agriculture.
There is, no reason to discard this evidence and reject exhibit A. 5 altogether.
[856C D]