judgement:
Civil Appeal No. 661 of 1971.
653 From the Judgment and order dated 28.10.1969 of the Orissa High Court in O.J.C. No. 165 of 1966.
S.P. Pandey for the Appellant.
G.S. Chatterjee for Respondent No. 1.
R.K. Garg and J.R. Dass for Respondent No. 2.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
With effect from 1.1.1948 a number of princely States which were situated within the territories of the present State of Orissa were merged with the Province of Orissa as it then existed.
On such merger the High Schools within the said princely States also came under the jurisdiction of the Province of Orissa.
The said High Schools belonged to two categories namely 'A ' type schools which were full fledged High Schools which were actually sending candidates for the matriculation examination and 'B ' type schools which were incomplete schools not sending candidates for the matriculation examination.
On the said High Schools being taken over by the Province of Orissa, the teachers serving in the said High Schools came under the control of the Government of Orissa.
It then became necessary to make an order to regulate the services of the said teachers.
The Government of Orissa in the Education Department issued a letter dated 5.1.1949 to the Director of Public Instruction on the subject.
The relevant pertion thereof is extracted below: "In the States the High Schools other than those at District Headquarters mentioned above will be of two types.
The complete High Schools will be 'A ' type High Schools and the incomplete High Schools 'B ' type High Schools.
The 'A ' type schools will be similar to Government High Schools other than those at District Headquarters.
The services of the staff of such High Schools will be pensionable and transferable and the teachers will get pay and dearness allowances at the rates prescribed for Government servants.
Government will bear the whole of the recurring and non recurring costs. 'B ' type High Schools will be Government managed.
654 The staff will get pay and allowances at rates prescribed for Government servants.
The Headmasters of those schools will be in the upper division of the S.E.S. The services of those teachers will not be pensionable.
They will have the benefits of the Contributory Provident Fund to which Government will contribute at the rate of Re. 1 in the rupee of the salary.
As regards recurring expenses of those schools Government will meet the difference between the standard cost and income from fees and other local subscriptions.
As regards non recurring expenditure Government will meet two thirds of the cost.
The standard cost for the 'B ' type Government managed High Schools will consist of the following items: (a). . . . . . . (b) The total contribution on Provident Fund deposited at the rate of Re. / 1/ in the rupee, and (c). . . . . . .
The Inspector of Schools will be the managing agent on behalf of the Government and the Headmaster will be the correspondent of a 'B ' type Government managed High School.
The appellant was appointed as an Assistant Teacher on a pay of Rs.70 per month in the pay scale of Rs.70 140 plus admissible dearness allowance in one of the 'B ' type High Schools by the Inspector of Schools on 15.6.1953 after the commencement of the Constitution of India.
He continued to work as an Assistant Teacher in one or the other of the 'B ' type High Schools to which he was transferred until August 1, 1964 when the State Government published a rationalisation scheme for integrating the services of the teachers in different types of High Schools in the State of Orissa, namely, Zilla Schools, 'A ' type Government High Schools, 'B ' type High Schools, Ex District Board High Schools and Ex Anchal High Schools hereinafter collectively referred to as integrated High Schools.
The relevant part of the scheme reads thus: "No.
18027 E Government of Orissa Education Department Resolution 1st Aug., 1964 Sub: Rationalisation of High Schools in the State.
655 Government have under their own management quite a few types of High Schools in which conditions of service of the employees vary category to category.
This ununiformity in the patterns and in the conditions of service has not only evoked public criticism but also created certain administrative difficulties and tends to lowering of standards in the institutions.
It is for these reasons that Government had for some time past under their consideration the question of rationalisation of the following different types of High Schools in the State whose number is noted against each.
Zilla Schools 18 2. 'A ' type Govt.
High School.
52 3. 'B ' type High Schools 22 4.
Ex District Board High Schools.
Ex Anchal High Schools.
6 After careful consideration Government have now decided that the five types of High Schools mentioned above should be converted into a single type of Govt.
School with effect from 1st June, 1964.
Since the employees of the 'B ' type High Schools are in receipt of pay and allowances on the scales applicable to Government servants the question of fixation of their pay and allowances does not arise.
They will continue to draw their salary that they are drawing on the date of conversion.
In respect of the incumbents of 'B ' type High Schools who are governed by the contributory provident fund rules, their subscriptions, if any, in the fund together with the Government contribution on the date of conversion may either be refunded to them or be credited to the General Provident Fund account to be opened afresh according to their option and all the employees may be brought under the Orissa General Provident Fund Rules.
After conversion Government shall not contribute anything towards the Employees ' Contributory Provident Fund.
All the employees of 'B ' type High Schools will be brought over to pensionable service from the date of conversion of the schools into Government Schools.
. . . . . . . . . 656 The seniority of the 'B ' type, Ex District Board and Ex Anchal Schools as among themselves will be determined by their length of continuous service in their respective cadres in the old Schools.
But for the purpose of reckoning their seniority in Government service, their services will be counted from the date of conversion of the Schools into Government school. . " (Underlining by us) Aggrieved by the terms of the rationalisation scheme referred to above relating to (i) the Contributory Provident Fund and (ii) the seniority of teachers who were working in 'B ' type High Schools, the appellant filed a writ petition in the High Court of Orissa questioning the discriminatory treatment meted out to him and other teachers in 'B ' type High Schools.
The appellants contended that even though he had been appointed in a 'B ' type High School he should be treated as having entered the service under the State Government on 15.6.1953 when he was appointed as an Assistant Teacher in a 'B ' type High School, that the clause in the scheme of 1964 which provided that for the purpose of reckoning seniority in Government service the services of teachers in 'B ' type High Schools would be counted from the date of conversion of the schools into Government schools which had the effect of wiping of the previous service put in by them in the said schools was discriminatory and that the terms relating to the Contributory Provident Fund were invalid.
The petition was resisted by the State Government pleading inter alia that the decision of the Government dated 5.1.1949 being an 'act of State ' its effect could not be challenged by the appellant even though he had entered service in the year 1953.
The High Court upheld the validity of the scheme and dismissed the writ petition.
It, however, recommended to the Government to modify the terms relating to the Provident Fund scheme applicable to the teachers of 'B ' type High Schools.
Aggrieved by the judgment of the High Court, the appellant has filed this appeal by special It is urged on behalf of the appellant that the State Government was wrong in treating him as having entered the service under the State Government only from June 1, 1964 although he had been appointed by the Inspector of Schools in the year 1953.
It is argued that merely because the appellant was appointed in a 'B ' type High School which once belonged to a princely State he could not be denied the benefits available to all other teachers in Government service.
It is further submitted that the case of the Government that the Government was 657 running 'B ' schools as merely agents was wholly untenable.
It is no doubt true that the 'B ' type High Schools were formerly in the princely States and that on the merger of the States the then Government of the Province of Orissa passed an order on 5.1.1949 stating that the 'B ' type High Schools would be governed and managed by the Inspector of Schools on behalf of the Government and the Headmasters would be the correspondents of 'B ' type Government managed High Schools.
It is also true that till the commencement of the Constitution of India the position of 'B ' type High Schools and the teachers working in them were being regulated in accordance with the terms contained in the order dated 5.1.1949.
But on the commencement of the Constitution of India all the territories which immediately before the commencement of the Constitution were either comprised in the Province of Orissa or were being administered as if they formed part of that Province became and constituted the State of Orissa (vide Entry No. 10 in the First Schedule to the Constitution of India.) The State Government was under an obligation to discharge its executive functions with respect to education by virtue of Entry 11 of the Seventh Schedule to the Constitution as it then existed in respect of all the schools including 'B ' type schools.
A High School which once belonged to the princely states became a Government High School with effect from the commencement of the Constitution and it could not be anything else.
The Inspector of Schools could no longer function as the managing agent on behalf of the State Government and the 'B ' type High School could no longer be a 'Government managed High School '.
The teachers working therein became teachers holding posts under the Government since there was no other authority which owned the 'B ' type High Schools after January 26, 1950 because there were no territories within the State of Orissa which could be considered as territories administered by the Government as if they formed a part of the State which was the case until January 26, 1950.
Though the princely States were subject to the paramountcy of the British Crown, they were considered to be foreign States by the British Indian Provinces.
Any action taken in respect of them or their subjects by the British Indian Provinces was an act of State but its effect could not be extended beyond January 26, 1950 because after that date there was no longer any foreign Government.
The princely States had gone out of existence.
It is well settled that the doctrine of an 'act of State ' cannot be pleaded by a State as a defence against its own citizens.
An 'act of State ' is an act done in relation to a foreigner by the sovereign power of a country or its agent either previously authorised or subsequently ratified.
Such an act cannot be questioned or made the subject of legal 658 proceedings in any Court of law.
But such a situation would not arise A between the State Government and a citizen like the appellant who joined service after the commencement of the Constitution.
It is appropriate to refer here to the decision of the House of Lords in Johnstone vs Pedlar, ; in which the nature of an 'act of State ' arose for consideration.
Lord Atkinson observed at pages 278 279 thus: "The best definition, I think, of an act of State, as well as the descriptions of the consequences flowing from it, is that given in the judgment of Lord Kingsdown in the case of Secretary of State for India vs Kamachee Boye Sahaba.
; In that case, the Rajah of Tanjore, a native independent sovereign, who was, by virtue of certain treaties, under the protection of the East India Company, in exercise of their sovereign power and in trust for the British Government, seized the Raj of Tanjore and the whole property of the deceased Rajah as an escheat, on the ground that the dignity of the Raj was extinct for want of a male heir, and that this property lapsed to the British Government.
It was held first, as it was held in Buron vs Denman (2Ex. 167), that an act done by an agent of the Government, though in excess of his authority, on being ratified and adopted by the Government, was of the same authority as if it had originally been directed by the Government, that the effect of the ratification is, in the language of Parke B.
In Buron vs Denman (Ibid.
188 9), this, that it only leaves a remedy against the Crown (such as it is), and exempts from all liability the person who commits the trespass, and, second, that the seizure made by the British Government acting as a sovereign power through its delegate, the East India Company, was an act of State to inquire into the propriety of which a municipal Court had no jurisdiction.
Lord Kingsdown, in delivering the judgement of the Privy Council said (13 Moo.
P.C. 77, 86); "Acts done in the execution of these sovereign powers were not subject to the control of the municipal courts, either of India or Great Britain.
" In the same decision Lord Phillimore said at page 295 thus; "The defence set up in the present case is sometimes 659 called the defence of an act of State.
As regards this way of looking at it, I cannot put the matter better or more tersely than as I found it put in one of the reasons given by the successful plaintiffs in their case as respondents before the Privy Council, in Walker vs Baird, [1892 A.C. 491, 494): "Because between Her Majesty and one of her subjects there can be no such thing as an act of State." And this proposition was finally accepted in the case of Walker vs Baird, [ , 494)" The High Court was, therefore, in error in upholding the plea that the order dated section 1.1949 could not be questioned by the appellant who had joined service after the commencement of the Constitution.
There is also no rational basis for refusing to give the benefit of the service rendered by a teacher working in a 'B ' type High School after January 26, 1950 either for purposes of seniority or for purposes of computing the retirement benefits.
It may be open to the State Government while integrating the services of teachers working in different kinds of institutions to introduce a scheme of rationalisation which may have the effect of modifying the conditions of service of different groups of Government servants.
It cannot, however, by a stroke of pen deny the benefit of the entire past service rendered by one group of such Government servants.
The effect of the Government scheme was that while for purposes of inter se seniority amongst the teachers of 'B ' type High Schools, Ex District Board High Schools and Ex Anchal High Schools, that is, integrated High schools the length of continuous service in their respective cadres in their old schools was to be counted, for purposes of reckoning seniority vis a vis teachers in Government schools their service was to be counted, only from the date of conversion of those High Schools to Government Schools, i.e., from June 1, 1964.
Consequently all teachers who had been in Government Schools immediately prior to June 1, 1964 became seniors to the teachers working in 'B ' type High Schools, Ex District Board High Schools and Ex Anchal High Schools.
The scheme put forward by the Government appears to us to be an irrational one.
We may at this stage mention that when this case was heard earlier by a bench of three learned Judges of this Court consisting of V.R. Krishna Iyer, R.S. Pathak (as he then was) and o. Chinnappa Reddy, JJ.
it was observed by the learned Judges on January 3 1, 1980 thus: "We have been taken through the judgment of the High 660 Court and the relevant facts by Shri Sikri and we are satisfied that the reasons given by the High Court are far from satisfactory.
On the other hand, no serious consideration of the ground of discrimination in ignoring the past service of the teachers has been given by the High Court.
" After making the above order the learned Judges granted time to the State Government to evolve a fresh scheme for integration of the services of the teachers in the schools referred in the scheme of 1964 with the teachers employed in the High Schools which were Government Schools all along.
It is reported to us that the Government was not willing either to modify the existing scheme or to formulate a new scheme in a reasonable way.
We respectfully agree with the above observations made by the three learned Judges.
We are of the view that the High Court was in error in upholding the terms of the scheme insofar as the question of seniority was concerned.
We are, therefore, constrained to reverse the judgment of the High Court insofar as the question relating to the validity of the terms of the scheme pertaining to the seniority of the teachers working in the schools referred to in it is concerned.
We hold that the clause in the scheme which reads: "But for the purpose of reckoning their seniority in Government service, their services will be counted from the date of conversion of the schools into Government schools" is void.
We direct the State Government to treat on and after January 26, 1950 the service of the teachers of 'B ' type High Schools, Ex District Board High Schools and Ex Anchal High Schools as the service under the State Government.
It is open for the State Government to evolve a reasonable formula for integrating the cadres of these teachers with the cadres of teachers in High Schools which have been under the Government all along.
Before bringing about such integration, the Government may formulate reasonable principles for equating the posts in the Government High Schools with the posts in the 'B ' type High Schools, Ex District Board High Schools and Ex Anchal High Schools having regard to the minimum qualification for the posts, pay, responsibilities etc.
In the light of the said principles, the Government shall prepare a seniority list.
Thereafter.
it shall proceed to make promotions of teachers to higher cadres.
We may at this stage state that the learned counsel for the appellant and other teachers working in 'B ' type High Schools, Ex District Board High Schools and Ex Anchal High Schools has submitted that these teachers do not insist upon promotions being given to them with retrospective effect even if it is found that they are entitled to it but they only pray that they may be promoted to the vacancies which may occur in the higher cadres hereafter.
We express our 661 appreciation of the stand taken by the learned counsel in this regard.
The State Government shall, therefore, promote these teachers to higher posts as and when vacancies arise hereafter on the basis of their rank in the seniority list if they are found fit for such promotion.
The learned counsel has further submitted that if the State Government finds it difficult to integrate the teachers belonging to 'B ' type High Schools and teachers of other integrated schools with the teachers working in Government High Schools, the State Government may at least consider the question of treating the two groups of teachers as belonging to separate cadres and reserve certain percentage of posts for being filled up only by the teachers of 'B ' type High Schools, Ex District Board High Schools and Ex Anchal High Schools as was the case in State of Punjab vs Joginder Singh, [ 1963] Supp. 2 S.C.R. 169.
The Government is at liberty to do so if it finds it to be convenient.
The order of the High Court is, therefore, modified to the above extent and the State Government shall prepare seniority list and make promotions accordingly within six months from today in the light of the above observations.
As regards the question of the Contributory Provident Fund Scheme is concerned, we are informed that it has been satisfactorily settled by the State Government.
We, therefore, express no opinion on that question.
The appeal is disposed of accordingly.

summary:
% A number of the princely States, situated within the territories of the present State of Orissa, were merged with effect from January 1, 1948, with the Province of orissa as it then existed.
On such merger, the High Schools within the said princely States came under the juries diction of the Province of Orissa.
The Schools belonged to two categories 'A ' type schools which were full fledged High schools sending candidates for the Matriculation examination and `B ' type schools which were incomplete schools, not sending candidates for the Matriculation examination.
On the said schools being taken over by the Province of orissa the teachers of the schools came under the control of the Government of orissa.
The orissa Government issued a letter dated 5.1.1949 to the Director of Public Instruction in connection with the subject of regulation of the services of the teachers.
The appellant was an assistant teacher in one of the 'B ' type schools on June 15, 1q953, after the commencement of the Constitution of India, and continued to work as such in the 'B ' type school till August 1, 1964, when the State Government of Orissa published a rationalisation scheme for integrating the services of the teachers in the different types of High Schools in the State.
Aggrieved by the terms of the Scheme relating to (i) the seniority of the teachers working in the 'B ' type High Schools and (ii).
The contributory Provident Fund, the appellant filed a writ petition in the High Court.
The High Court upheld the validity of the Scheme and dismissed the Petition, while recommending, however, to the Government to modify the terms relating to the Provident Fund Scheme applicable to the teachers of 'B ' type High Schools.
The appellant then moved this Court by special leave against the decision of the High Court.
Disposing of the appeal, the Court, 651 ^ HELD: It is true that till the commencement of the Constitution of India, the position of the 'B ' type High Schools and the teachers working in them was being regulated in accordance with the terms contained in the order dated 5.1.1949.
But on the commencement of the Constitution of India, all the territories which immediately before the commencement of the Constitution were either comprised in the Province of Orissa or were being administrated as if they formed part of that Province, became and constituted the State of Orissa.
The State Government was under obligation to discharge its executive functions with respect to education in respect of all the schools including 'B ' type High Schools.
A High school which once belonged to a princely state became a Government High School with effect from the commencement of the Constitution and it could not be anything else and the teachers working therein became teachers holding posts under the Government.
It is well settled that the doctrine of an "act of State" cannot be pleaded by a State as a defence against its own citizens.
An 'act of State ' is an act done in relation to a foreigner by a Sovereign power of a country.
Such an act cannot be questioned in any court of law, but such a situation would not arise between the State Government and a citizen like the appellant who joined service after the commencement of the Constitution.
The High Court was in error in upholding the plea that the order dated 5.1.1949 could not be questioned by the appellant who had joined service after the commencement of the institution.
[657A E. GH; 658A] There is also no rational basis for refusing to give the benefit of the service rendered by a teacher working in a 'B ' type High school after January 26, 1950, either for purposes of seniority or for purposes of computing the retirement benefits.
It may be open to the State Government, while integrating the services of teachers working in different kinds of institutions, to introduce a scheme of rationalisation which may have the effect of modifying the conditions of service of different groups of government servants.
But the Government cannot by a stroke of pendeny the benefit of the entire past service rendered by one group of such government servants.
The effect of the government scheme was that all the teachers who had been in Government Schools immediately prior to June 1 1964 the date of coversion of the High Schools to government schools became senior to the teachers working in the 'B ' type High Schools, Ex District Board High Schools and Ex Anchal High Schools.
The scheme appears to be an irrational one.
The High Court was in error in upholding the terms of the scheme in so far as the question of the seniority was concerned.
The judgment of the High Court.
in so far as the validity of the terms of the scheme, pertaining to 652 seniority of the teachers in the schools referred to in it, is concerned, is reversed.
the clause in the scheme which reads: "But for the purpose of reckoning their seniority in Government service their services will be counted from the date of conversion of the schools into Government schools" is void.
The State government is directed to treat, on and after January, 26, 1950, the service of the teachers of the 'B ' type High schools, ex District Board High Schools and ex Anchal High Schools as the service under the State Government.
It is open to the State Government to evolve a reasonable formula for integrating the cadres of these teachers with the cadres of the teachers in the High Schools which have been under the Government all along.
Before bringing about such an integration, the government may formulate reasonable principles for equating the posts in the Government High Schools with the posts in the 'B ' type High Schools, ex District Board High Schools and ex Anchal High Schools having regard to the minimum qualification for the posts, pay, responsibilities, etc.
In the light of the said principles, the government shall prepare a seniority list, whereafter it shall proceed to make promotions of the teachers to the higher cadre.
In view of the stand taken by counsel for the appellant and other teachers in 'B ' type High schools, ex District Board High Schools and the ex Anchal High schools, regarding their not insisting upon promotions with retrospective effect, etc., the State government shall promote these teachers to the higher posts as and when the vacancies arise hereafter, on the basis of their rank in the seniority list, if they are found fit for such promotion.
The government is at liberty, if it finds it convenient, to treat, as submitted by the teachers ' counsel, the two groups of teachers as belonging to separate cadres and reserve certain percentage of posts for being filled up only by the teachers of 'B ' type High Schools, ex District Board High Schools and ex Anchal High schools, as was the case in State of Punjab vs Joginder Singh, [1963 (Supp. 2) SCR 169].
The order of the High Court is modified to the above extent and the State Government shall prepare the seniority list and make promotions accordingly within six months in the light of the above observations.
[659C G; 660C H; 661A D] No opinion is expressed on the question of Contributory Provident Fund Scheme, the same having been satisfactorily settled by the state.
[661D E] Johnstone vs Pedlar, ; , referred to.


judgement:
ION: Criminal Appeal No. 60 of 1955.
Appeal from the judgment and order dated the 2nd February, 1955, of the Calcutta High Court in Criminal Revision No. 1113 of 1954, against the judgment and order dated the 14th November, 1953, of the Court of the Sessions Judge, Howrah in Criminal Appeal No. 185 of 1953, arising out of the judgment and order dated the 8th September, 1953, of the Municipal Magistrate, Second Class, Howrah, in Case No. 1407C/1952.
Sukumar Ghose, for the appellant.
B. Sen and P. K. Ghosh (for P. K. Bose), for the respondent 1957.
October 29.
The following Judgment of the Court was delivered by SINHA J.
This appeal on a certificate of fitness granted by the Calcutta High Court under article 134 (1) (c) of the Constitution, is directed against the judgment and order of a Single Judge of that Court in its criminal revisional jurisdiction, convicting the appellant under section 488/300 of the Calcutta Municipal Act, 1923 (which will hereinafter be referred to as the Act), and sentencing him to a fine of Rs. 50, in substitution of the order of conviction under section 488/299 of the Act, of a fine of Rs. 75, passed by the lower courts.
The facts found by the courts below which are necessary to be stated for the purpose of this appeal, are as follows: The appellant who is the owner of the premises No. 10/3, Swarnamoyee Road, Howrah, encroached upon an area of 57 ' x 3 ' of the road side land of the Howrah Municipality to which the 776 provisions of the Act have been extended.
A notice, the terms of which we shall set out hereinafter, was served on the appellant to remove the encroachment aforesaid, and as he failed to carry out the terms of the notice within the specified time, the prosecution leading up to this appeal, was instituted before the magistrate who, under section 531, is called 'Municipal Magistrate '.
The Municipal Magistrate who tried the appellant in the first instance, convicted him, but on appeal, the learned Sessions Judge acquitted him on the ground that the prosecution had been launched beyond three months which was the prescribed period of limitation under section 534 of the Act.
The Municipality moved the High Court of Calcutta in its revisional jurisdiction and a Division Bench of that Court (J. P. Mitter and section K. Sen JJ.), set aside the order of acquittal and directed the appeal to be re heard, after giving the Municipality an opportunity of formally bringing on record certain official documents showing the date of the institution of the complaint.
The relevant documents were proved and exhibited on behalf of the prosecution in the Sessions Court and the learned Additional Sessions Judge confirmed the conviction and the sentence, and dismissed the appeal.
Thereupon, the appellant moved the High Court in its revisional jurisdiction.
His application in revision was heard and disposed of by P.N. Mukherjee J. by his order dated February 2, 1955, which is the subject matter of this appeal.
Before him, the appellant as petitioner, urged at the forefront of the arguments, the question of limitation, and the learned Judge took the view that the matter was now concluded in view of what had taken place in the High Court and in the court of Session in pursuance of the order of remand passed by the High Court.
The learned Judge agreed with the appellate court that the complaint was not barred.
The High Court also agreed with the lower courts on their findings on the merits, that is to say, it affirmed the finding that the appellant had encroached upon the road side land of the Municipality.
The High Court accepted the argument raised on behalf of the appellant that on the facts found, namely, that the 777 offending structure was a compound wall and not something which was a part and parcel of the main building, the offence if any, would come under section 300, and not section 299, read with section 488 of the Act.
The High Court further took the view that as the accused was fully aware of the nature of the accusation against him, it would not cause any prejudice to him if the conviction and the sentence were altered into those under section 300, read with section 488 of the Act, the sentence being reduced to the statutory limit of 50 rupees.
The appellant moved the High Court and obtained the necessary certificate from the Bench presided over by the learned Chief Justice who observed, while granting the certificate: "It seems to me to be arguable and arguable with some force that such alteration of the conviction could not possibly be correct in law. .
It would therefore be arguable that a notice under section 299 to remove a compound wall unattached to any building could not be a notice 'lawfully given ' or a requisition 'lawfully made ' within the meaning of section 488(1)(c) of the Calcutta Municipal Act, 1923.
It appears to me that the alteration of the conviction by this Court does raise a question of law which makes the case a fit case for further appeal to the Supreme Court.
" In this Court, the learned counsel for the appellant has placed at the forefront of his arugments the points suggested in the portion of the learned Chief Justice 's order quoted above, but in our opinion, there is absolutely no substance in those contentions.
The alteration of the conviction from section 299 to section 300, read with section 488 of the Act, was no alteration in the substance of the accusation but only in the section more properly applicable to the facts found.
A similar question was raised before their Lordships of the Judicial Committee of the Privy Council in the case of Begu vs The King Emperor (1).
It was argued before their Lordships that the conviction of the appellants before the Judicial Committee under section 201, Indian Penal Code, without a charge under that section, was a serious departure from the procedure laid down in the Code of Criminal Procedure.
In that 778 case the initial conviction was for murder under section 302 of the Indian Penal Code, but the High Court had set aside that conviction and substituted a conviction under the lesser section 201.
After discussing the provisions of sections 236 and 237 of the Code of Criminal Procedure, their Lordships made the following observations which fully cover the present controversy " A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made.
" It will be noticed that in the case before the Privy Council, the alteration was not only in respect of the section but also of the substance of the accusation, but as the lesser offence under section 201, had been made out by the evidence led on behalf of the prosecution which was primarily for an offence of murder, their Lordships ruled that sections 236 and 237 of the Code of Criminal Procedure authorize the Court to alter the conviction and the sentence to be passed in respect of the offence made out in the evidence.
In the case in hand, it is manifest that the facts sought to be proved and found by the courts below remained the same even after the alteration of the conviction from section 299 to section 300, read with section 488 of the Act.
There was, therefore, no illegality in the alteration of the conviction under one section to the other.
It was next argued that the notice served upon the appellant was not lawful within the meaning of section 488(1)(c) of the Act, which runs as follows: 488(1) Whoever commits any offence by (a). . . . . . . . . . (b). . . . . . . . . . (c) failing to comply with any direction lawfully given to him or any requisition lawfully made upon him under any of the said sections, sub sections, clauses, provisos or rules, shall be punished. . . . . . ." The substantive portion of the notice is in these terms: "Take notice that you are hereby required by the Municipal Commissioners of Howrah, within 779 thirty days from the date of service of this notice to remove the encroachment caused by a compound wall measuring 57 ' 0" x 3 ' 0" upon Swarnamoyee Road attached to premises No. 10/3 and that in default, the provisions of the above Act will be enforced.
" This notice is headed as under section 299 of the Act.
It is no more in controversy, as found by the courts below, that the offending part of the structure comes under section 300 which refers to a wall, etc., not being a portion of a building or fixture, as contemplated in section 299.
The contention now has narrowed down to this that the notice having been headed as under section 299 of the Act, the conviction under section 300 is illegal, because, it is further argued, the requisition had not been 'lawfully made '.
According to this argument, the requisition would have been 'lawfully made ', if the notice had been headed as under section 300.
Hence, the label given to the notice makes all the difference between a requisition 'lawfully made ' and a requisition not so made.
In our opinion, this argument has only to be stated to be rejected.
It is the substance and not the form of the notice that has to be regarded.
The effective part of the notice quoted above, leaves no doubt in the mind of the parties concerned that the requisition is to remove the encroachment caused by the compound wall.
As it has not been contended that the appellant had not received the notice, and it is common ground that the appellant had not carried out the terms of the notice, there cannot be the least doubt that the appellant has incurred the penalty under section 488(1)(c), read with section 300.
It must, therefore, be held that notwithstanding the label given to the notice, the requisition bad been lawfully made in the sense that the appellant had made the encroachment complained of, and that the Municipality was entitled to call upon him to remove the encroachment.
The appellant was bound to carry out the terms of the requisition, and as he admittedly failed therein, he had incurred the penalty of the law.
It was next sought to be contended that there was substantial prejudice to the appellant inasmuch as if 99 780 the conviction were under section 299 and not section 300, read with section 488, he may have been entitled to claim compensation.
There are several answers to this contention.
In the first instance, he himself invited the High Court to interfere with the order of conviction passed by the lower courts.
If the High Court has set right the technical defect, as it was bound to do when the matter had been brought to its notice, the appellant has no just grievance, keeping in view the fact that the amount of fine has been reduced as a result of the alteration in the section.
Secondly, if he has any rights to claim compensation in a civil court the judgment and order of the criminal court is wholly irrelevant; and thirdly, the prejudice must have reference to any irregularity in the trial of the case.
It has not been shown that the appellant had, in any way, been prejudiced in the trial of the case as a result of the alteration in the section, that is to say, that he was deprived of some opportunity to make a proper defence to the prosecution if the right section had been named in the notice or in the charge, if any.
Nor has he been able to show that he was misled as a result of any such technical error.
Lastly, it was sought to be made out that the prosecution itself was beyond time.
This contention was attempted to be made good with reference to the additional evidence adduced at the appellate stage as a result of the direction of the High Court when the case came before it on the first occasion, as mentioned above.
In our opinion, there is no substance in this contention because as pointed out by the learned Additional Sessions Judge, the additional evidence placed before the Court puts the matter beyond all reasonable doubt that the complaint had been lodged in time before the relevant authority.
In view of these considerations, it must be held that there is no merit in this appeal.
It is, accordingly, dismissed.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant was convicted by the Municipal Magistrate under section 488, read with section 299, of the Calcutta Municipal Act, 1923, and sentenced to pay a fine of Rs. 75, for failure to carry out within the specified time the terms of a notice served on him under section 299 of the Act to remove the encroachment caused by a compound wall upon the road side land of the Municipality.
Since the offending structure was a compound wall and not something which was part and parcel of the main building, the offence comes under section 300 and not section 299, read with section 488 Of the Act.
The High Court, in revision, found that the accused was fully aware of the nature of the accusation against him and that there was no prejudice caused to him by the wrong mention of section 299 in the notice in place Of section 300.
It accordingly altered the conviction into one under section 488, read with section 300, and reduced the amount of fine to Rs. 5o as required by the section.
On appeal to the Supreme Court it was contended for the appellant that the conviction was bad because (1) the notice having been headed as under section 299 of the Act, the conviction under section 300 was illegal, (2) the requisition had not been lawfully made within the meaning Of section 488(1)(c), and (3) there was substantial prejudice to the appellant inasmuch as if the conviction were under section 299 and 775 not section 300, read with section 488, he might have been entitled to claim compensation : Held, that the effective part of the notice made it clear that the requisition, which was to remove the encroachment caused by the compound wall, was lawfully made, that the alteration of the conviction under section 299 to one under section 300 would not make it illegal and that, on the facts, there was no prejudice.
Begu vs The King Emperor, L.R. 52 I.A. 191, relied on.


judgement:
Civil Appeal No. 1018 of 1987.
From the Judgment and order dated 3.1.1985 of the Rajasthan 682 High Court in D.B. Civil Special Appeal No. 20 of 1975.
Badri Das Sharma and B.N. Purohit for the Appellants.
Avadh Behari Rohtagi, S.N. Kumar and N.N. Sharma for the Respondents.
The Judgment of the Court was delivered by JAGANNATHA SHETTY,J.
In the town of Bikaner there is a Math known as 'Juna Math '.
The first appellant is the present Mahant of the Math.
The second appellant is the presiding deity of the Math.
For convenience and brevity we will refer to them collectively as 'the Math ' The primary question raised in this appeal, by special leave, relates to maintainability of the cross objection filed by the Math before the Division Bench of the High Court of Rajasthan (Jodhpur V Bench) in Civil Appeal No. 20 of 1975.
The Division Bench has dismissed the cross objection as not maintainable.
The background facts are these: One Lalgiri Maharaj was a previous Mahant of the Math.
He had several vices.
He mismanaged the Math and recklessly disposed of its properties.
On August 19, 1963 Lalgiri gave on lease the land measuring 2211 Sq. yards in favour of Madan Mohan.
The lease was for 99 years with monthly rent of Rs. 30.
Again on March 22, 1968 Lalgiri sold 446 sq.
yards of land to Madan Mohan.
It was out of the land which was already leased to Madan Mohan.
The sale was for Rs.4,000 Madan Mohan constructed some shops on a portion of the land purchased.
He first, rented the shops to Jankidas and Mohan Lal and later sold the same to them for Rs. 15,000.
Madan Mohan is the first respondent, Jankidas and Mohanlal are respondents 2 and 3 before us.
There was yet another transaction between the same parties.
On April 8, 1969 Madan Mohan sold a piece of land measuring 124 sq.
yards to respondents 2 and 3 for Rs. 1,500.
This piece of land forms part of the land which Madan Mohan purchased from Lalgiri.
In the meantime, there was change of guard in the Math.
Lalgiri was said to have abdicated Mahantship in favour of the first appellant.
683 The Math thereafter filed Suit No. 28 of 1971 challenging the alienations made by Lalgiri.
The suit was for declaration that the alienations were without authority and not binding on the Math.
It was also for possession of the property from respondents 1 to 3.
The trial court decreed the suit in part.
The trial court gave only a declaration that the lease deed dated August 19, 1963 was null and void.
But the relief for possession of the land demised was rejected.
The suit for recovery of possession of the land sold by Lalgiri was also dismissed.
Against the judgment and decree of the trial court, there were two appeals, before the High Court, one by the Math and another by Madan Mohan.
Both the appeals came for disposal before the learned single judge.
By a common judgment dated July 14, 1975 learned judge allowed the appeal of the Math in part.
He gave a simple declaration that the sale was void.
He, however, did not give a decree for possession of the land sold.
The learned judge also allowed the appeal of Madan Mohan.
There he gave him complete relief He held that the suit as to the lease was barred by time.
The result was that the Math could not get back even an inch of land.
D Against the judgment of learned single judge there was no appeal from the Math or Madan Mohan.
There was only one appeal by respondents 2 and 3 being the Appeal No 20 of 1975.
Madan Mohan was impleaded as the third respondent in that appeal.
The Math was impleaded as the first respondent.
The Math preferred cross objection.
Madan Mohan did not do anything.
He was perhaps completely satisfied with the judgment of learned single judge.
The Division Bench by judgment dated January 3, 1985 dismissed the appeal on the merits.
The Division Bench also dismissed the cross objection but on the ground of maintainability.
The correctness of the dismissal of the cross objection has been called into question in this appeal.
F The High Court gave two reasons for rejecting the cross objection.
The first reason relates to the absence of appeal from Madan Mohan or by the Math against the judgment of learned single Judge.
The High Court observed: "Thus the lease is good.
If Madan Mohan had filed an appeal, then the cross objection would be competent.
The cross objection filed by the plaintiffs are not competent, wherein it has been prayed that the lease deed may be declared invalid and ineffective against the rights of the plaintiffs.
" The second reason given by the High Court relates to 0.41 R. 33 CPC for giving relief to the Math.
The High Court said: "That having regard to the facts of the case 0.41 R. 33 CPC cannot be called into aid.
That provision H 684 should be applied with care and caution.
The Court should not lose sight of the other provisions in the Code of Civil Procedure.
It should not also forget the law limitation and the Court Fees Act.
" Before us, Mr. B.D. Sharma, learned counsel for the appellant pursued both the reasons given by the High Court.
Counsel asserted that the cross objection was maintainable not only against the appellants but also against Madan Mohan.
The counsel also urged that in any event, the cross objection ought to have been considered if not under 0.41 R. 22 but under 0.41 R. 33 of the CPC.
Mr. Rohtagi, learned counsel for the respondents, advanced an interesting submission.
He urged that the land sold was a part of the land already leased to Madan Mohan.
Even if the sale goes as invalid, the lease of the entire land revives and remains So long as the lease remains binding between the parties, Madan Mohan would be entitled to retain possession of the entire land demised.
The counsel urged that it would be, therefore, futile for the Math to seek possession of the property from the appellants in the cross objection.
The assumption of Mr. Rohtagi though logical if not legal should be subject to the decision in the cross objection.
We must, therefore, examine the validity of the cross objection and the contentions raised therein.
It will be seen that the cross objection filed by the Math was to the entire judgment of learned single judge.
Therein, the Math raised two principal grounds.
The first related to the denial of decree for possession of property which was the subject matter of sale.
It was contended that the Math would be entitled to possession of that property when the sale was declared as null and void.
The second ground was in regard to validity of the lease and the dismissal of the suit in respect thereof.
It was contended that the suit in regard to the lease was not barred by limitation.
Different considerations, however, apply to the different points raised in the cross objection.
We will first consider the right of the Math to file cross objection against the appellants.
The learned single judge has invalidated the sale of property to Madan Mohan while denying a decree for possession.
The appellants before the Division Bench wanted to get rid of the finding as to invalidity of the sale.
The Math in turn, wanted to recover possession of that property from the appellants and Madan Mohan.
The Math instead of filing an appeal for that relief could as well take the cross objection.
That would be clear from the provisions of R. 22 of O. 41 CPC.
That is as plain as plain can be.
The High Court was clearly in error in holding to the contrary.
685 The next question for consideration is whether the cross objection was maintainable against Madan Mohan, the co respondent, and if not, whether the Court could call into aid 0 41 R. 33 CPC.
For appreciating the contention it will be useful to set out hereunder R. 22 and R. 33 of order 41: "R. 22 Upon hearing, respondent may object to decree as if he had preferred separate appeal.
(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree (but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour, and may also take any cross objection) to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
XXX XXX XXX XXX XXX R. 33 Power of Court of Appeal.
The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further other decree or order as the case may require, and this order may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decree.
xxx xxx xxx xxx xxx xxx Generally, the cross objection could be urged against the appellant.
It is only by way of exception to this general rule that one respondent may urge objection as against the other respondent.
The type of H 686 such exceptional cases are also very much limited.
We may just think of one or two such cases.
For instance, when the appeal by some of the parties cannot effectively be disposed of without opening of the matter as between the respondents interse.
Or in a case where the objections are common as against the appellant and co respondent.
The Court in such cases would entertain cross objection against the co respondent.
The law in this regard has been laid down by this Court as far back in 1964 in Panna Lal vs State of Bombay, ; at 991.
After reviewing all the decisions of different High Courts, there this Court observed .
"In our opinion, the view that has now been accepted by all the High Courts that order 41, r. 22 permits as a general rule, a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being re opened between the objecting respondent and other respondents, that an objection under 0.41 R. 22 can be directed against the other respondents, is correct.
Whatever may have been the position under the old S 561 the use of the word "cross objection" in 0.41 R. 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant.
As Rajamannar C.J said in Venkataswaralu vs Ramanna: "The legislature by describing the objection which could be taken by the respondent as a "cross objection" must have deliberately adopted the view of the other High Courts.
One cannot treat an objection by a respondent in which the appellant has no interest as a cross objection.
The appeal is by the appellant against a respondent, the cross objection must be an objection by a respondent against the appellant.
" We think, with respect, that these observations put the matter clearly and correctly.
That the legislature also wanted to give effect to the views held by the different High Courts that in exceptional cases as mentioned above an objection can be preferred by a respondent against a co respondent is indicated by the substitution of the word "appellant" in the third paragraph by the words "the party who may be affected by such objection. " 687 This view has been there as a guide for a little over two decades.
We should not add anything further at this stage.
The law should be A clear and certain as a guide to human behaviour.
No attempt should be made to unsettle the law unless there is compelling reason.
We do not find any such compelling reason and we, therefore, reiterate the above principles.
Basically, the first question raised in the cross objection relates to the right of Madan Mohan to retain the property under the sale deed.
The appellants are the second purchasers.
The Math, therefore, could urge the objection that the appellants and Madan Mohan have no right to retain the property after the sale deed was declared null and void.
But then the considerations as to the lease deed is quite different.
The validity of the lease deed and the possession of the land thereof has to be determined only against Madan Mohan.
It is not intermixed with the right of the appellants.
It has no relevance to the question raised in the appeal.
The High Court was, therefore, right in holding that the cross objection as to the lease was not maintainable against Madan Mohan.
D But that does not mean, that the Math should be left without remedy against the judgment of learned single judge.
If the cross objection filed under R. 22 of 0.41 CPC was not maintainable against the co respondent, the Court could consider it under R. 33 of 0.41 CPC.
R. 22 and R. 33 are not mutually exclusive They are closely related with each other.
If objection cannot be urged under R. 22 against co respondent, R. 33 could take over and come to the rescue of the objector.
The appellate court could exercise the power under R. 33 even if the appeal is only against a part of the decree of the lower court.
The appellate court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any appeal or objection.
The sweep of the power under R. 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co respondents.
The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case.
The appellate court could also pass such other decree or order as the case may require.
The words "as the case may require" used in R. 33 of O. 41 have been put in wide terms to enable the appellate court to pass any order or decree to meet the ends of justice.
What then should be the constraint? We do not find many.
We are not giving any liberal interpretation.
The rule itself is liberal enough.
The only constraint that we could see, may be these: That the parties before the lower court should be therebefore 688 the appellate court.
The question raised must properly arise out of the judgment of the lower court.
If these two requirements are there, the appellate Court could consider any objection against any part of the judgment or decree of the lower court.
It may be urged by any party to the appeal.
It is true that the power of the appellate court under R. 33 is discretionary.
But it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties.
The Court should not refuse to exercise that discretion on mere technicalities.
In the result, we allow the appeal and reverse the judgment and decree of Division Bench of the High Court.
The Division Bench shall now restore the appeal and cross objection of the parties and dispose of the same in accordance with law and in the light of observations made The appellants shall get the cost of this appeal.
S.L. Appeal allowed.

summary:
% There is a Math known as Juna Math in Bikaner.
The first appellant is the present Mahant of the Math and the second appellant is the presiding deity of the Math, both referred to collectively as 'the Math ', herein.
Previously, one Lalgiri Maharaj was the Mahant of the Math.
He mismanaged the Math and disposed of its properties.
On August 19, 1963, he gave on lease for 99 years land measuring 2211 sq.
yards in favour of Madan Mohan, the respondent No. 1.
On March 22, 1968, he sold to Madan Mohan 446 sq.
yards of land out of the land leased to him.
Madan Mohan constructed shops on the land purchased and sold them to Jankidas and Mohan Lal, who are respondents Nos. 2 and 3.
Then Madan Mohan sold another piece of land purchased from Lalgiri to the respondents Nos. 2 and 3.
Later, the first appellant became the Mahant of the Math, and the Math filed a suit, challenging the alienations made by Lalgiri, and for a declaration that the said alienations were without authority and not binding on the Math and for possession of the property from the respondents 1 to 3.
The trial Court decreed the suit in part only, as it gave a declaration that the lease deed dated August 19, 1963, was null and void, but the relief regarding possession of the land demised was rejected.
The suit for recovery of possession of the land sold by Lalgiri was also dismissed.
Against the judgment of the Trial Court, two appeals one by the Math and the other, by Madan Mohan were filed before the High Court.
By a common judgment in the two appeals, a single Judge of the High Court (i) allowed the appeal of the Math in part, giving a simple declaration that the sale of the land was void, but declining to pass a decree for possession of the land sold, and (ii) allowed the appeal of 680 Madan Mohan, giving him complete relief, while holding that the suit as to the lease was barred by time.
Against the judgment of the Single Judge, no appeal was filed either by the Math or by Madan Mohan.
There was only an appeal filed by respondents 2 and 3, who impleaded the Math as the first respondent and Madan Mohan, as the third respondent.
The Math Preferred cross objection.
Madan Mohan did not do any thing.
The Division Bench of High Court dismissed the appeal on the merits.
It also dismissed the cross objection on the ground of maintainability.
Aggrieved by the dismissal of the cross objection, the Math appealed to this Court for relief by special leave.
Allowing the appeal, the Court, ^ HELD: The Single Judge invalidated the sale of the property to Madan Mohan, while denying a decree for possession.
The appellants before the Division Bench wanted to get rid of the finding as to the invalidity of the sale.
The Math wanted to recover possession of the property from the appellants before the Division Bench, and Madan Mohan.
The Math instead of filing an appeal for that relief, could as well file the cross objection.
That is clear from the provisions of R. 22 of 0.41, C.P.C.
The High Court was clearly in error in holding to the contrary.
[684G H] The next question for consideration was whether the cross objection was maintainable against Madan Mohan, a co respondent, and if not, whether the Court could call into aid R. 33, 0.41 C.P.C. Generally, the cross objection could be urged against the appellant.
It is only by way of exception to this general rule that one respondent may urge objection as against the other respondent.
The type of such exceptional cases are very much limited when an appeal cannot be effectively disposed of without opening the matter as between the respondents inter se, or when there is a case where the objections are common as against the appellants and the co respondent.
This law has been laid down by this Court in Panna Lal vs State of Bombay, ; at 991.
This view has been accepted as a guide for more than two decades.
No attempt should be made to unsettle the law unless there is a compelling reason.
The Court does not find any such compellmg reason in the case.
[685A, H; 686A B; 687A B] The Math could urge the objection that the appellants before the Division Bench and Madan Mohan had no right to retain the property 681 after the sale deed had been declared null and void.
The validity of the lease deed and the possession of the land in pursuance thereof, has to be determined only against Madan Mohan.
It is not intermixed with the right of the appellants above said.
It has no relevance to the question raised in the appeal.
The High Court was right in holding that the cross objection as to the lease was not maintainable against Madan Mohan.
But that does not mean that the Math should be left without a remedy against the judgment of the Single Judge.
If the cross objection filed under R. 22 of 0.41, C.P.C. was not maintainable against the co respondent, the Court could consider it under R. 33, 0.41, C.P.C. R. 22 and R. 33 are not mutually exclusive.
They are closely related with each other.
If objection cannot be urged under R. 22 against corespondent, R. 33 could take over and help the objector.
The appellate Court could exercise that power in favour of all or any of the respondents even though such a respondent may not have filed any appeal or objection.
The sweep of the power under R. 33 is wide enough to determine any question not only between the appellant and the respondent but also between a respondent and co respondents.
The appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case.
The appellate Court could also pass such other decree or order as the case may require.
The words "as the case may require" used in R. 33 of 0.41, have been put in wide terms to enable the appellate Court to pass any order or decree to meet the ends of justice.
This Court is not giving any liberal interpretation.
The rule itself is liberal enough.
The only constraint that could be seen, may be: that the parties before the lower Court should be there before the appellate Court, the question raised must properly arise out of the judgment of the lower Court; it may be urged by any party to the appeal.
It is true that the power of the appellate Court under R. 33 is discretionary, but it is a proper exercise of judicial discretion to determine all the questions urged in order to render complete justice between the parties.
The Court should not refuse to exercise that discretion on mere technicalities.
[687B H; 688A B] Appeal allowed.
The judgment and decree of the Division Bench of the High Court reversed.
The Division Bench to restore the appeal and cross objection of the parties and dispose of the same in accordance with law and in the light of the observations made.
[688C]


judgement:
Civil Appeal No. 2190 of 1987.
From the Judgment and Order dated 29th August, 1986 of the Calcutta High Court in Appeal No. 204 of 1986.
Amal Dutta, D.K. Sinha and J.R. Das for the Appellant.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special leave granted.
This is an appeal challenging the decision of the High Court of Calcutta upholding the decision of the learned Single Judge of that Court whereby the award of the arbitrator was set aside and new arbitrator was appointed.
In order to appreciate the position it is necessary to state that in the year 1964 the Executive Engineer had invited competitive sealed tenders in respect of "Silt Clearance of River Peali from Utterbhag Canning Road Bridge upto Hobon Sluice".
Shri D.P. Chatterjee entered upon the reference soon thereafter and the award was made in November, 1966.
It appears that thereafter the respondent asked for the award amount in full and final settlement which the Executive Engineer turned down.
The respondent herein was paid by the appellant a sum of Rs.32,525.62 in terms of the award and which sum was received and acknowledged by the respondent No. 1.
Then the true copy of the award was forwarded to the Court by the Chief Executive Engineer and the application was 71 filed by the respondent No. 1 in 1981 in the High Court of Calcutta under Sections 14, 15, 16 & 30 of the for setting aside the award dated the 19th November, 1966.
The High Court after hearing the parties dismissed that application on 10th May, 1982.
The High Court was thereafter pleased to pass judgment in terms of the award.
The respondent herein preferred an appeal against the judgment dated 10.5.82.
The Division Bench allowed the appeal of the appellant.
The appellant 's advocate did not notice that the matter appeared in the daily list dated 26th April, 1985 of the learned Single Judge for judgment and as such he did not know the result of the judgment.
Thereafter the matter again appeared in the list of the learned Single Judge and the respondent had made an application before the learned Single Judge for setting aside the previous order.
The learned Single Judge on 18th March, 1986 rejected the application of the appellant and allowed the application of the respondent herein under Section S, 11 and 12 of the and appointed a retired Judge of the High Court as the arbitrator and thereafter revoked the authority of the said arbitrator from acting as the arbitrator and appointed a lawyer of the High Court as the arbitrator.
The appellant preferred an appeal against the said order dated the 3rd December, 1985 before the Division Bench of the High Court of Calcutta.
Two points were raised before the learned Single Judge, firstly that the award was beyond time and secondly, the learned arbitrator had not signed the award.
The Division Bench found that as there was an extension of time in making the award and the award having been filed within the extended time, expressed the view that there was no force in the first point.
The Division Bench, however, was unable to accept unsigned award being made the rule of the Court.
It is true that an unsigned award cannot be made the rule of the Court.
But it is only a formal defect.
It appears that the award was handed over to the parties and a letter was sent to the parties concerned and award bore no signature of the arbitrator.
The parties had acted upon the award.
It is true that under the law the mandatory rule is that the award should be signed by the arbitrator.
But law must subserve justice and endeavour to serve the purpose of law.
The Court can in such circumstances extend time for making the award and direct curing of the formal defect in the award.
So much time and effort should not be allowed to go waste.
In the situation of this nature the proper order in the interest of H 72 justice would be to remit the award under Section 16 of the for enabling the arbitrator named therein for signing the award and for that purpose if it is necessary under Section 28 of the , the Court has the power to extend the time to the arbitrator for making the award final.
We did so.
We extend the time by four months from today and direct the award be remitted to the arbitrator for signature.
The appeal is disposed of accordingly.
N.P.V. Appeal disposed of.

summary:
There was a dispute between the first respondent and the appellant in respect of Silt Clearance of River Peali from Uttarbhag Canning Road Bridge up to Hobon Sluice.
The matter was referred to the Arbitrator, who made his award.
The respondent was paid a sum of Rs.32,525.62 in terms of the award, and a true copy of the award was forwarded to the Court.
The first respondent filed an application under Sections 14, 15, 16 and 30 of the , for setting aside the award.
A Single Judge of the High Court dismissed the application and passsed a judgment in terms of the award.
The Division Bench having allowed the appeal of the respondent, the matter again came up before the Single Judge, who allowed the application of the respondent under Section 5, 11 and 12 of the Act and appointed a retire Judge of the High Court as arbitrator and later revoked the authority of the said arbitrator and appointed a lawyer of the High Court as arbitrator.
The appellant filed an appeal against the said decision to the Division Bench, which held that as there was an extension of time in making the award and the award having been filed within the extended time, the award was not beyond time.
However, it held that an unsigned award could not be made a rule of the Court.
Disposing of the appeal by special leave, this Court, ^ HELD: Under law, the mandatory rule is that the award should be signed by the Arbitrator.
No doubt an unsigned award cannot be made a rule of the Court.
But it is only a formal defect.
The Court, in such circumstances, can extend time for making the award and direct 70 curing of the formal defect in the award.
So much time and effort should not be allowed to go waste.
Law must subserve justice and endeavour to serve the purpose of law.
[71 F G] In the instant case, the award was handed over to the parties and a letter was sent to the parties concerned and award bore no signature of the Arbitrator.
The parties acted upon the award.
In a situation of this nature, the proper order in the interest of justice would be to remit the award, under Section 16 of the , for enabling the Arbitrator named therein for signing the award and for that purpose if it is necessary under Section 28 of the , the Court has the power to extend the time to the Arbitrator for making the award final.[71F. H; 72A B] Accordingly, the time is extended by four months and the award remitted to the Arbitrator for signature.


judgement:
Civil Appeal Nos 1032 1036 of 1973.
From the Judgment and order dated 16.2.1973 of the Gauhati High Court in Civil Rule Nos. 1142 to 1146 of 1971 S.T. Desai, R.P Agarwala, Mrs Kum Kum Sen, Praveen Kumar, D.N. Mukherjee, Ranjan Mukherjee and N.R. Choudhary for the Appellants.
Dr. V. Gauri Shanker and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by DUIT, J.
The appellants, who are all registered firms within the meaning of section 2(39) of the Income Tax Act, 1961, hereinafter referred to as 'the Act ', have preferred these appeals against the judgments of the Gauhati High Court overruling the challenge of the appellants as to the legality of the interest charged by the Income tax officer for the delayed filing of returns and also as to the constitutional validity of sub section (4) of section 139 of the Act, as it stood before April 1, 197 l The relevant provisions of section 139, as it stood prior to April 1. 1971, are as follows: "section 139(1).
Every person, if his total income . . during the previous year exceeded the maximum amount which is not chargeable to Income tax, shall furnish a return of his income . . . . (a) in the case of every person . before the expiry of six months from the end of the previous 692 year . , or before the 30th day of June of the assessment year, whichever is later; (b) in the case of every other person, before the 30th day of June of the assessment year: Provided that, on an application made in the pre scribed manner, the Income tax officer may, in his discretion, extend the date for furnishing the return (i) in the case of any person whose total income includes any income from business or profession the previous year in respect of which expired on or before the 31st day of December of the year immediately preceding the assessment year, and in the case of any person referred to in clause (b), up to a period not extending beyond the 30th day of September of the assessment year without charging any interest; (ii) in the case of any person whose total income includes any income from business or profession the previous year in respect of which expired after the 31st day of December of the year immediately preceding the assessment year, up to the 31st day of December of the assessment year without charging any interest; and (iii)up to any period falling beyond the dates mentioned in clauses (i) and (ii), in which case, interest at nine per cent per annum shall be pay able from the 1st day of October or the 1st day of January, as the case may be, of the assessment year to the date of the furnishing of the return (a) in the case of a registered firm or an unregistered firm which has been assessed under clause (b) of section 183, on the amount of tax which would have been payable if the firm had been assessed as an unregistered firm and (b) in any other case, on the amount of tax payable on the total income.
693 reduced by the advance tax, if any, paid or by any tax deducted at source, as the case may be.
In the case of any person, who in the Income tax officer 's opinion, is assessable under this Act, whether on his own total income or on the total income of any other person during the previous year, the Income tax officer may, before the end of the relevant assessment year, serve a notice upon him requiring him to furnish, within thirty days from the date of service of the notice, a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner setting forthwith such other particulars as may be prescribed; Provided that on an application in the prescribed manner the Income tax officer may, in his discretion, extend the date for the furnishing of the return, and when the date for furnishing the return, whether fixed originally or on extension, falls beyond the 30th day of September or, as the case may be, the 31st day of December of the assessment year, the provisions of sub clause (iii) of the proviso to sub section ( 1) shall apply.
Any person who has not furnished a return within the time allowed to him under sub section (1) or sub section (2) may before the assessment is made furnish the return for any previous year at any time before the end of four assessment years from the end of the assessment year to which the return relates, and the provisions of sub clause (iii) of the proviso to sub section (1) shall apply in every such case.
" In all these cases, it is not disputed that no application for extension of time to file returns was made by the appellants for the relevant assessment years.
The returns were submitted before the assessment was made and also before the end of the four assessment years as mentioned in sub section (4) of section 139 of the Act.
The Income tax officer assessed the appellants under section 143(3) of the Act and determined the total incomes of the appellants and the amounts of tax payable by them.
In view of sub section (4) of section 139, the Income tax officer also added to the amount of tax interest calculated at the rate of six per cent per annum on the amount of tax which would have H 694 been payable if the firms had been assessed as unregistered firms.
A Being aggrieved by the charging of interest under sub section (4) read with clause (iii)(a) of the proviso to sub section ( I) of section 139 of the Act, the appellants filed writ petitions before the Gauhati High Court, challenging the charging of interest and the validity of subsection (4) read with clause (iii)(a) of the proviso to sub section ( 1) of section 139 of the Act as violative of Article 14 of the Constitution The Gauhati High Court, as stated already, overruled the challenge and dismissed the writ petitions except that some writ petitions were allowed in part only as the High Court directed the Income tax officers to take into account the advance tax paid by the assessees before calculating the interest.
Hence these appeals.
The first contention made on behalf of the appellants is that it is clear from the provisos to sub sections ( 1) and (2) of section 139 of the Act that unless an application is made for extension of the date for furnishing the return, the question of charging any interest on the amount of tax does not at all arise.
A similar contention was made before the High Court by the appellants, but the High Court overruled the same.
Much reliance has been placed on behalf of the appellants on an observation of this Court in Commissioner of Income tax, A.P. vs M. Chandra Sekhar, ; In that case, this Court has observed that it is only where the Income tax officer extends the time for furnishing the return beyond September 30, or December 31, as the case may be, the interest becomes payable The said observation has been made by this Court relating to clause (iii) of the proviso to sub section ( 1) of section 139 of the Act while considering the question whether charging of interest indicated that the Income tax officer was satisfied that there was sufficient cause for the delay in filing the return of income and whether the cancellation of the penalties levied under section 27(1)(a) of the Act was justified.
Nothing has, however, been said by this Court in respect of sub section (4) of section 139 of the Act.
Sub section (4) is a substantive provision and it does not provide for making an application to the Income tax officer for the purpose of extension of the date for the furnishing of the return.
What is provided in sub section (4) is that even though a person does not furnish the return within the time allowed to him under sub section (I) or subsection (2), yet he may furnish the same before the end of the four assessment years concerned.
695 The substantive provision of sub sections (l) and (2) of section 139 specify the time within which the return has to be filed The provisos to sub sections (1) and (2) confer power on the Income tax officer to extend the date for filing the return on an application in that regard made by the assessee.
So, it is clear that the expression 'time allowed ' in sub section (4) of section 139 is not confined only to the extension of time granted by the Income tax officer, but also to the time originally fixed for the filing of returns under sub sections ( 1) and (2) of section 139 of the Act.
There may be two types of cases for the late filing of returns, namely ( 1) the assessee after getting the date extended by the Income tax officer under sub section ( 1) or sub section (2) of section 139 of the Act, does not file the return within the extended date, but files the same before the end of four assessment years concerned and (2) the assessee without filing any application for extension of time, files the return beyond the period mentioned in sub section ( 1) or sub section (2) but before the end of four assessment years in question.
In either case, the provision of clause (iii) of the proviso to sub section (l) of section 139 will apply.
In other words, the Income tax officer will be entitled to charge interest on the amount of tax in accordance with the provision of clause (iii) of the proviso to sub section ( 1) of section 139.
Thus, where time has been extended by the Income tax officer on an application made in that regard by the assessee and the assessee does not file the return within the time allowed and where no such application has been made by the assessee, but the return is filed by him beyond the time allowed, but before the end of the four assessment years concerned, in either case, the Income tax officer will be entitled to charge interest in accordance with the provision of clause (iii) of the proviso to sub section (1) of section 139 of the Act.
There is, therefore, no substance in the contention of the appellants that as the appellants had not made any application praying for the extension of time for the filing of returns, the Income tax officer had no authority to charge interest under the provision of clause (iii) of the proviso to sub section ( I) of section 139 of the Act The next question that requires consideration relates to the validity of sub section (4) read with clause (iii)(a) of the proviso to subsection (I) of section 139.
It is submitted by the learned Counsel appearing on behalf of the appellants that as, in view of the late filing of the returns, there is postponement of the payment of tax and the Revenue suffers loss on account of delayed payment of tax, the interest when levied takes the character of penalty This contention 696 need not detain us long, for it has already been decided by this Court in Central Provinces Manganese ore Co. Ltd. vs Commissioner of Income tax, [ that interest is levied by way of compensation and not by way of penalty.
In Chandra Sekhar 's case (supra? this Court also has taken a similar view.
The High Court, however, has taken the view that the interest charged partakes also of a penal character.
In expressing that view, the High Court has placed reliance upon a decision of this Court in Jain Brothers and others vs Union of India and others, [ In that case, this Court was mainly considering a challenge to section 271(2) of the Act, which is a penal provision, on the ground of contravention of Article 14 of the Constitution.
The question whether charging of interest under the proviso to section 139(1) of the Act was in the nature of penalty or not, was not considered by this Court.
Indeed, the subject matter was different from that with which we are concerned.
In view of the decisions of this Court in Chandra Sekhar 's case (supra) and in the case of Central Provinces Manganese ore Co. Ltd. (supra), we hold that the charging of interest did not become transformed to penalty.
It is urged on behalf of the appellants that all the assessees who are charged with interest for the late filing of returns, should be classified in one and the same category inasmuch as they are similarly situated, but sub section (4) read with clause (iii) of the proviso to sub section ( I) of section 139 of the Act has without any reasonable justification placed the registered firms in a separate category inasmuch as for the late filing of returns by such firms they are saddled with interest to be calculated on the amount of tax payable by them as unregistered firms.
It is submitted that such separate classification of the registered firms for the purpose of payment of interest under section 139, does not bear any nexus to the object sought to be achieved by the section and, accordingly, the provision of sub section (4) read with clause (iii)(a) of the proviso to sub section (1) of section 139 of the Act is discriminatory and violative of the provision of Article 14 of the Constitution and, as such, is void.
In support of the contention, the appellants have placed much reliance upon a decision of the Karnataka High Court in M. Nagappa vs Income tax officer, Central Circle 1, Bangalore, [ In that case, a learned Single Judge of the Karnataka High Court has struck down as void the provision of sub section (4) read with clause (iii)(a) of the proviso to sub section ( 1) of section 139 The reason that weighed with the learned Judge is that the loss suffered by the Government which is sought to be compensated by the legislative measure 697 should be the same in all cases, irrespective of the fact that the assessee who is responsible for it is a registered firm or.
any other kind of assessee.
If that is the case, then the amount claimed by way of interest should be directly correlated to the amount of tax withheld by the assessee without reference to the kind of assessee concerned in a given case.
It is observed that the object of levy of interest being just reimbursement of what the Government would lose by delayed payment of tax resulting from the delayed filing of the return, it is clear that the levy of interest in the case of a registered firm on the tax which would have been payable if the firm had been assessed as an unregistered firm, is outside the said object.
Accordingly, it has been held that section 139(4) to the extent it required a registered firm to pay interest at the specified rate on the tax assessed as if it were an unregistered firm, whenever the registered firm did not file the return within the specified time, was violative of Article 14 of the Constitution and is, therefore, void.
That decision of the learned Single Judge has been upheld by a Division Bench of the Karnataka High Court and is since reported in [ The Karnataka High Court, before holding that provision of sub section (4) of section 139 read with clause (iii)(a) of the proviso to sub section ( 1) of section 139 of the Act as violative of Article 14 of the Constitution, has not considered the reason why, when a registered firm submits a return beyond time, it is charged with interest calculated on the amount of tax which would have been payable if the firm had been assessed as an unregistered firm.
It is because of certain privileges which have been conferred on a registered firm.
One of the privileges is that the firm is considered as an assessable unit and is taxed at a reduced rate and the partners are assessed on their respective shares in the income of the firm.
This privilege which has been conferred on a registered firm by the Act, is not available to an unregistered firm.
The Legislature is, however, competent to withhold any of the privileges conferred on a registered firm if it violates any of the provisions of the Act.
A registered firm is required to file its return within the time as prescribed by the Act.
Clause (iii)(a) of the proviso to section 139(1) read with sub section (4) of section 139 in effect only provides for the withdrawal of the privilege of the registered firm to be assessed at a reduced rate because of its non compliance with the provisions of sub sections (1) and (2) of section 139 of the Act.
In other words, the registered firm is treated as an unregistered firm for purposes of quantification of interest.
The contention of the appellants that by treating the registered 698 firms as unregistered firms for the charging of interest, the Legislature has placed the registered firms in a separate category is not at all comprehensible.
On the other hand, by treating the registered firms as unregistered firms, the Legislature has avoided the discrimination that would have been there if the registered firms were not so treated for the purpose of charging of interest.
In other words, if the registered firms had been charged with interest on the amount of tax assessed at a reduced rate for the late filing of the returns, there would have been discrimination between registered firm and unregistered firms.
When a registered firm and an unregistered firm commit the same default in filing returns beyond the time allowed under sub sections ( 1) and (2) of section 139 of the Act, it would be unreasonable and unjust to charge two different rates of interest one at a reduced rate for the registered firm and the other at a higher rate for the unregistered firm.
So, in our opinion, section 139(4) read with clause (iii)(a) to the proviso of section 139(1) of the Act, as it stood prior to April 1, 1971, has placed the registered firms and the unregistered firms on the same footing as, for the purpose of interest, they are similarly situated.
Dr. Gouri Shankar, learned Counsel appearing for the Revenue, has pointed out to us that except the Karnataka High Court, other High Courts, namely, Madras High Court, Gujarat High Court, Madhya Pradesh High Court, Punjab & Haryana High Court and the Calcutta High Court in Mahendrakumar Ishwarlal & Co. vs Union of India, , since affirmed on an appeal reported in ; Chhotalal & Co. vs Income tax officer, ; Jiwanmal Hospital vs Income tax officer, ; Hindustan Steel Forges vs Commissioner of Income tax, [ and Mohanlal Soni vs Union of India, [ respectively have taken the view that treating of registered firms as unregistered firms for the purpose of charging of interest for the late filing of returns cannot be said to be arbitrary and violative of Article 14 of the Constitution.
The view expressed in these decisions, in our opinion, is correct.
As has been noticed already, the Karnataka High Court did not consider the question of withholding of the privileges conferred on the registered firm on their default in filing returns within the time allowed under sub sections (1) and (2) of section 139 of the Act, so that they may be treated on equal footing with unregistered firms making the same default.
In the circumstances, no discrimination has been made between a registered firm and an unregistered firm and, accordingly, the provision of sub section (4) of section 139 read with clause (iii)(a) of the proviso to sub section (1) of section 139 of the Act is not violative of Article 14 of the Constitution and is quite 699 legal and valid.
The decision of the Karnataka High Court in Nagappa 's case (supra), as affirmed on appeal by the Division Bench of that High Court, in so far as it declares the said provision as ultra vires Article 14 of the Constitution, is erroneous.
Before we part with these appeals, we think we should clarify one situation, namely, where the advance tax duly paid covers the entire amount of tax assessed, there is no question of charging the registered firm with interest even though the return is filed by it beyond the time allowed, regard being had to the fact that payment of interest is only compensatory in nature.
As the entire amount of tax is paid by way of advance tax, the question of payment of any compensation does not arise.
In C.A. No. 1035 of 1973, it appears that total tax for the assessment year 1968 69 was assessed at RS. 16,288.
The assessee paid advance tax amounting to Rs.39,018 in three instalments on 25.9.1967, 24.1.1968 and 2.3.1968.
It is apparent that the amount of advance tax paid by the assessee fully covered the amount of tax payable by it.
In spite of that, the Income tax officer charged the assessee for the said assessment year a sum of Rs. 14,233 as interest under section 139 of the Act for the delayed filing of the return.
As has been observed earlier, when the amount of tax and already been paid in the shape of advance tax, the question of payment of compensation by way of interest does not arise and the Income tax officer was not, therefore, justified in charging interest.
The assessee is, therefore, entitled to get refund of the amount paid by way of interest for the said assessment year.
The Income tax officer is directed to refund to the assessee the amount paid on account of interest.
In the result, C.A. No. 1035 of 1973 is allowed and the remaining appeals are dismissed.
There will, however, be no order as to costs in any of these appeals.
S.L. Appeal No. 1035/73 allowed and others dismissed.

summary:
% The appellants, registered firms under the Income Tax Act, 1961, filed delayed returns.
The Income Tax officer assessed the appellants under section 143(3) of the Act and determined the total incomes of the appellants and the amounts of the tax payable by them.
The Income Tax officer also determined and added, under sub section (4) of section 139 of the Act, the amounts of interest on the amounts of tax payable by the appellants.
The appellants challenged the charging of interest in the High Court by writ petitions.
The High Court dismissed all but some writ petitions which were allowed in part to the extent that the Income tax officer was directed to take into account the advance tax paid by the assessees while calculating the interest.
The appellants have filed Civil Appeals Nos.
1032 1036 of 1973, 1927 1933 of 1978 and 1288 and 1289 of 1980 against the decision of the High Court.
Allowing Civil Appeal No. 1035 of 1973 and dismissing all the other appeals, the Court, ^ HELD: Sub section (4) of section 139 of the Income Tax Act is a substantive provision, which does not provide for the making of an application to the Income Tax officer for extention of the date for furnishing return.
The sub section provides that even though a person does not furnish the return within the time allowed under sub section (1) or (2) of section 139, yet he may furnish the same before the end of four assessment years concerned.
The substantive provisions of subsections (1) and (2) specify the time within which the return has to be filed.
The provisos to the sub sections confer power on the Income tax officer to extend the date for filing the return on an application.
The expression "time allowed" in sub section (4) is not confined only to the extension of time granted by the Income tax officer but also to the time originally fixed for 690 filing the returns under sub section(1) and (2).
[694G H;695A D] The Income Tax officer is entitled to charge interest in accordance with the provisions of clause (iii) of the proviso to sub section (1) of section 139 in a case where time has been extended by the Income Tax officer to file returns on application made by the assessee and the return is not filed within the time allowed, and in a case where no such application has been made by the assessee, and the return is filed beyond the time allowed but before the end of the four assessment years concerned.
[695D F] Secondly, as decided by this Court in Central Provinces Manganese Ore Co. Ltd. vs Commissioner of Income Tax, ; , and Commissioner of Income Tax A.P. vs Chandra Sekhar, ; , the interest is levied by way of compensation, and not by way of penalty as contended by the appellants.
[696A] The contention of the appellants that the provisions of Sub Section (4) of section 139, read with clause (iii) (a) of the proviso to Sub Section (1) of section 139 is discriminatory and violative of Article 14 of the Constitution because Sub Section (4) has placed the registered firms in a separate category inasmuch as they have to pay interest calculated on the amount of tax payable by them as unregistered firms, and a registered firm is treated as an unregistered firm, for purposes of qualification of interest, is not comprehensible, Section 139 (4) read with clause (iii)(a) of the proviso to section 139(1), as it stood prior to April 1, 1971, has placed the registered firms and the unregistered firms on the same footing and is not violative of Article 14 of the Constitution and is quite legal and valid.
[697H; 698A D] Where advance tax duly covers the entire amount of the tax assessed, there is no question of charging a registered firm with interest if the return is filed beyond the time allowed, regard being given to the fact that payment of interest is only compensatory in nature.
As the entire amount of the tax is paid by way of advance tax, the question of payment of any compensation does not arise, and accordingly, in the facts and circumstances of the case in the C.A. No. 1035 of 1973, the Income Tax of officer was not justifed in charging interest, and the assessee in that case is entitled to refund of the amount paid by way of interest.
[699B C, E] Commissioner of Income Tax, A .
P. vs M. Chandra Sekhar, ; , Central Provinces Manganese ore Co. Ltd. vs Commissioner of Income Tax, [1986] 160 I.T.R. 961; Jain Brothers 691 and others vs Union of India and others, ; M. Nagappa vs Income Tax officer, Central Circle I, Bangalore, ; Mahendra Kumar Ishwarlal and Co. v, Union of India, and ; Chhotalal & Co. vs Income Tax officer; ; Jiwanmal Hospital vs Income Tax officer, ; Hindustan Steel Forges vs Commissioner of Income Tax, and Mohanlal Soni vs Union of India, , referred to.