judgement:
N: Criminal Appeal No. 468 of 1983.
Appeal by Special leave from the Judgment and Order dated the 2nd February, 1983 of the Gauhati High Court in Civil Rule (HC) No. 4/83.
M.M. Abdul Khader and S.K. Nandy for the Appellants.
V.M. Tarkunde and Mrs. Manik Karanjawala with him for the Respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The detaining authority under section 3 (2) read with section 3 (3) of the ( 'Act ' for short) being the District Magistrate of Nowgong and the State of Assam assail the decision of the High Court at Gauhati quashing the order of detention.
On October 20, 1982, the District Magistrate made the following order: "Whereas I am satisfied from the dossier submitted by Superintendent of Police, Nowgong that it is necessary to prevent Shri Sarat Mudoi s/o Shri Renu Mudoi, village Senchows, P.S. Nowgong from acting in any manner prejudicial to maintenance of public order and maintenance of supplies and services essential to the community, I. section Kablian, I.A.S., District Magistrate, Nowgong, hereby in exercise of powers conferred under section 3 (2) read with section 3 (3) of , direct that Shri Sarat Mudoi be detained with immediate effect until further orders".
In the grounds of detention which were supplied to the detenu within the time provided by law, six grounds were specified.
Before the High Court several contentions were raised including the one to the effect that if the detaining authority does not specify in the order of detention as to which particular supply and/or service he had in mind while making it, the order of detention is vitiated.
After hearing counsel for the parties, the High Court came to the conclusion: 959 "We are of the view that as while passing the order of detention the authority has to specify the particular prejudicial activity whose prevention he has in mind, so also he must specify the particular supply and service which according to him is being prejudicially affected by the activities of the detenu.
The notified categories of supplies and services thus really get as if implanted in the and an order of detention on this score must have reference to one or more specified supplies and services forming part of notified categories.
Any other view would also pose a possibility of abuse of power as a result of absence of full application of mind." and set aside the order of detention.
At the stage of notice on the special leave petition this Court on March 10, 1983, made the following order: "Issue notice to the respondent returnable within a week confined to the question as to whether according to the ratio laid down by this Court in A.K. Roy vs Union of India ; , it is necessary to specify in the order of detention itself the particular supplies and services essential to the community which are affected by the activities of the detenu or will it suffice if it is mentioned in the grounds for detention".
On behalf of the State this Court was told that even if the appeal was allowed, the respondent would not be detained for the unexpired portion of the period.
The short question that survives for consideration, therefore, is whether without the particulars of supplies and services specified in the order of detention, it is bad.
In A.K. Roy 's case and the connected matters this Court took the view that no person could be detained under section 3 (2) of the with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community unless by a law or notification made or published fairly in advance the supplies and services the maintenance of which is regarded as essential to the community and in respect of which the order of detention is proposed to be passed are made known properly to the public.
Accordingly, 960 by a notification on February 8,1982,16 specified supplies and services were notified as essential to the community and this notification was duly published in the Gazette of India, Extra ordinary issue of the same day.
Under the the detenu is entitled to make a representation against the order of detention.
It is manifest from the statutory scheme that his right to represent is after the grounds are served on the detenu.
It is the pronounced view of this Court that such right should be without fetters and as wide as possible.
Since the citizen is detained without trial and on the basis of satisfaction of a notified authority the right to represent assumes importance.
The detenu would be in a position to effectively represent only when specific particulars are provided to him and the grounds are intended to provide that material to him.
Mr. Tarkunde who appeared amicus curiae fairly agreed that it is not necessary that the specification should be in the order of detention and it would be adequate to enable the detenu to make an effective representation if the particulars are provided in the grounds of detention.
We are inclined to take the view that a full disclosure made in the grounds in no way prejudices the right guaranteed to the detenu to make an effective representation challenging his detention.
Therefore, non specification of the required particulars in the order of detention would not vitiate the order as long as the particulars are provided in the grounds in support of the order of detention which in quick succession of the detention order are served on the detenu.
Counsel for the appellants argued that while it would be possible for the particulars to be provided with reference to past conduct it would be difficult to specify any of the 16 items of services and supplies included in the notification in regard to future conduct of the detenu and, therefore, to require the detaining authority to so specify would be asking for the performance of something impossible.
In view of the limited question on which notice was issued, this aspect strictly does not fall for consideration.
We also do not find any merit in this stand.
It was pointed out by this Court in Debu Mahto vs State of West Bengal(1), that the basis for an order of preventive detention is the reasonable prognosis of the future behaviour of the person based upon his past conduct.
It is open to the detaining authority to take note of the past conduct of a detenu and apprehending repetition of 961 such conduct in future an order of detention can be made with a view to preventing such action.
If past conduct confined to any or all of the 16 of the items in the notification could be satisfied, the detaining authority could also on the basis of reasonable apprehension of repetition of such conduct in future make an order of detention for its prevention.
We do not propose to say anything more in view of the short question to which the notice was confined.
We are thankful to Mr. Tarkude for assisting us at the hearing as amicus curiae.
This disposes of the appeal.
H.S.K. Appeal allowed.

dataset_name: IN-Abs

summary:
The respondent challenged the order of his detention under the National Security Act on the ground that since the detaining authority did not specify in the order of detention as to which particular supplies and services he had in mind while making it, the order of detention was vitiated.
The High Court set aside the order of detention.
In appeal it was submitted that it would be impossible for the detaining authority to specify any of the 16 items of services and supplies included in the notification in regard to the future conduct of the detenu.
Allowing the appeal, ^ HELD: Under the Act the detenu is entitled to make a representation against the order of detention.
It is manifest from the statutory scheme that his right to represent is after the grounds are served on the detenu.
The right of the detenu to make a representation should be without fetters and as wide as possible.
Since the citizen is detained without trial and on the basis of satisfaction of a notified authority the right to represent assumes importance.
The detenu would be in a position to effectively represent only when specific particulars are provided to him and the grounds are intended to provide that material to him.
A full disclosure made in the grounds of detention in no way prejudices the right guaranteed to the detenu to make an effective representation challenging his detention.
Therefore, non specification of the required particulars in the order of detention would not vitiate the order as long as the particulars are provided in the grounds in support of the order of detention which in quick succession of the detention order are served on the detenu.
[960 B E] It is open to the detaining authority to take note of the past conduct of a detenu.
If past conduct confined to any or all of the 16 items in the notification could be satisfied, the detaining authority could also on the basis of reasonable apprehension of repetition of such conduct in future make an order of detention for its prevention.
[960 H; 961 A] Debu Mahto vs State of West Bengal, AIR 1974 SC 816, referred to. 958


judgement:
Civil Appeal No. 1507 of 1969 Appeal from the Judgment and order dated the 12th March, 1968 of the Punjab and Haryana High Court in Civil Writ No. 1376 of 1967.
WITH Civil Appeal Nos.
1202 20 of 1970 919 From the Judgment and Order dated the 23rd day of July, 1967 of the Punjab and Haryana High Court in Civil Writ Petition Nos.
2934 & 2955 of 1968 and L.P.A. Nos.
597 599/68, Civil Writ Nos.
242 45/69, 423, 471, 477, 783 785, 787 89 & 792 of 1969.
AND Civil Appeals Nos.
1564 67 of 1970 Appeals from the Judgment and Order dated the 20th November, 1969 of the Punjab and Haryana High Court in L.P.A. Nos.
57 59 69.
AND Civil Appeals Nos.
743 94 of 1974.
From the Judgment and Order dated the 23rd July, 1969 of the Punjab and Haryana High Court in Civil Writ Nos. 343, 334, 353, 354, 365, 379, 381, 384, 385, 421, 422, 424, 456 481, 493, 518, 519, 520, 529 of 1969, 2933, 2948, 2949, 2956, 2975 78, 3021, 3111, 3188 of 68, 254, 264, 307, 308, 715, 706, 674, 662, 661, 604, 596, 588, 554, 737, 786, 791, 798, 828, 836, 945, 839 of 1969.
R.N. Poddar for the Appellants in CA.
I.S. Goel and R.N. Poddar for the Appellants in CA.
1202 20.
M.S. Gujral and R.N. Poddar for the Appellants in CA.
743 794/74.
K.G. Bhagat, Additional Soliciter General and R.N. Poddar for the Appellants in CAs.
1564 67/70.
T.S. Munjral and H.K. Puri for Respondent in CA.
P.R. Mridul, V.S. Desai, section Rangarajan in CAs.
1204 to and in CA.
743, 762 & 770.
T.S. Munjral, K.C. Dua and Poonam Malhotra for the Respondents in CAs 1204 06, 1564 67, 743, 762, 764, 765 770.
R.C. Bhatia and P.C. Kapoor for Respondents in CAs.
1202 03, 1207 20, 744 761, 768, 766 769 & 771 794.
920 The Judgment of the Court was delivered by CHANDRACHUD, CJ.
These appeals have a long history.
Liquor vends were put to auction by the Excise Department of the Government of Haryana whereupon, the highest bidders were given the necessary licences to sell liquor.
Some of the licensees committed default in the payment of amounts due from them under the terms of the auction.
Thereupon, the vends were reauctioned except for three vends which, though published for reauction, were given by private negotiations.
The original licensees, who were called upon to pay the difference between the amount which they were liable to pay and the amount realised by resale of the vends, filed writ petitions in the High Court of Punjab and Haryana contending that the State Government had no power to demand the various amounts which they had allegedly defaulted in paying.
The High Court accepted that contention, holding that the State Government had no authority to demand the amounts for failure to pay which, the vends were put to resale.
As a necessary consequence of that finding, the fresh grants made by reauction or private treaty were held invalid.
The result of this was that the writ petitioners stood relieved of their obligation to make good the shortfall.
This is the broad history of these appeals.
We will take up Civil Appeal No. 1507 of 1969 for consideration first.
The facts of that case and the events lending to the present proceedings are mentioned in a judgment of this Court reported in State of Haryana vs Jage Ram(1).
In this case, an auction was held on March 27, 1967 for the grant of a retail vend known as Biswan Meel, Sonepat, for the year 1967 68.
The respondents Jage Ram and others offered the highest bid in that auction.
Under Condition 14 (iii) of the auction, respondents became liable to pay an amount calculated at the rate of Rs. 17.60 per litre, which came to Rs. 10,92,960.00.
They paid a security deposit for the due performance of the terms of the auction but they committed default in payment of instalments which fell due on April 10 and April 25, 1967.
On May 17, 1967 the Excise authorities cancelled the licence of the respondents and informed them that the vend will be resold on May 23, 1967 at the risk of the respondents.
In pursuance of the order dated May, 17, the Biswan Meel vend was reauctioned on May 23, the highest bid offered being in the sum of Rs. 2,46,000.00.
On July 11, respondents were called upon by a notice to pay a sum of 921 Rs. 7, 41,577.40, being the difference between the amount which they were liable to pay under the terms of the original auction and the amount fetched in the reauction.
Thereupon, respondents filed a writ petition in the High Court challenging the legality of that notice.
The High Court allowed the writ petition, quashed the order cancelling the respondents ' licence as also the notice calling upon them to make good the shortfall of seven lakh rupees and odd.
The High Court gave to the State of Punjab a certificate to appeal to this Court.
The appeal came up for hearing before a three Judge Bench which by its aforesaid Judgment dated April 21, 1980 held that the writ jurisdiction of the High Court under Article 226 cannot be used for avoiding contractual obligations.
On merits, it was held by this Court following a Constitution Bench decision in Har Shanker vs The Deputy Excise and Taxation Commissioner,(1) that since rights in regard to the manufacture and sale of intoxicants are vested in the State, it is open to the State to part with these rights, which are in the nature of a privilege, for consideration.
The Court further held that the amounts which the State Government had charged to the respondents were neither in the nature of a tax nor in the nature of an excise duty but were in the nature of a price which the State Government was entitled to charge as consideration for parting with its privilege in favour of the licensees.
After setting aside the judgment of the High Court and upholding the demand made by the State Government upon the respondents, the question naturally arose whether the respondents could be held liable for the shortfall between the bid offered by them and the amount realised in the reauction.
It was urged by the respondents that the reauction which was held on May 23, 1967 was not in accordance with the relevant Rules and therefore, they could not be called upon to pay the difference between the amount which they were originally liable to pay and the amount which was fetched in the reauction of the vend.
To be more specific, it was contended on behalf of the respondents that no notice of the intended resale was given as required by Rule 36 (3) of the Punjab Liquor Licence Rules, 1956, that no notice was published or affixed at any conspicous public place notifying the proposed resale, nor indeed was the resale announced by the beat of drums.
According to the respondents, one 922 Lal Chand went to the office of the Excise and Taxation Officer, Rohtak, and managed to have his bid accepted in the resale of the vend.
Respondents further urged that through the resale of the vend was to be effective for a period of about 10 months out of the 12 months for which the vend was originally auctioned, there was a large shortfall of over Rs. 7 lakhs on account of the fact that due publicity was not given to the resale.
By the aforesaid judgment dated April 21, 1980 this Court remanded the matter to the High Court and called for its findings on two questions: (1) Whether it was necessary according to the Rules which were in force at the relevant time to give publicity to the reauction, and (2) if so, whether such publicity was in fact given to the reauction.
The High Court has transmitted its findings to this Court, which are against the respondents.
The High Court has held by its order dated September 29, 1980 that the Rules relied upon by the respondents by which publicity is required to be given to the resale are directory and not mandatory and that these rules were substantially complied with.
These findings are assailed by the respondents who, by reason of the findings of the High Court, are virtually in the position of appellants now.
The finding of the High Court that the rules were substantially complied with is based on an affidavit filed by Shri N.S. Bedi, Deputy Excise and Taxation Commissioner, Sonepat, in which he has stated that 'all possible steps were taken in connection with the publicity done for the reauction of the vend '.
The affidavit says that telegrams were issued on May 19, 1967 by the Excise and Taxation Officer, Rohtak to the Excise and Taxation Officers of Hissar, Karnal, Gurgaon, Mohindergarh, Ambala and Jind informing them that the reauction will be held on May 23, 1967 at 10.00 a.m. and asking them to give due publicity to the reauction.
The affidavit further says that letters were also written on May 20, 1967 to the 'important licensees of the State ' informing them of the date and time of the reauction and requesting them to attend it.
The affidavit asserts that 40 bids were recorded in the reauction and the 40th bid, being the highest, was accepted.
It seems to us impossible to accept the findings of the High Court.
We will not enter into the controversy whether the rules 923 governing reauction of vends, of which respondents allege breach, are directory or mandatory in character.
Even assuming for the purpose of argument that they are directory, we are unable to hold that they have been substantially complied with.
Rule 36 (24) of the Punjab Liquor Licence Rules, 1956 as amended by the Notification dated March 31, 1967 says that when a licence is cancelled, it may be resold by public auction or by private contract in accordance with the procedure laid down in the other clauses of Rule 36.
Clause (3) of Rule 36 runs thus : "36(3) The Collector will give timely notice of the date and place of the auction: (a) the condition to which the auction will be subject; (b) the number and situation of the shops to be licensed for the sale of (country liquor); (c) the prices, if any, fixed for the retail vend of country spirit or; (d) the occasions, if any, on which the shops will be closed; and (e) any other information which may be of use to intending bidders." No notice as required by this sub rule was given to the public at all.
Neither the time nor the date of the reauction, nor the location or description of the vend which was to be put to reauction, nor the conditions of the reauction were ever published by the Excise authorities prior to the reauction.
What was done by the concerned authorities was to send telegrams to Excise Officers of five districts with a request that they should give publicity to the reauction.
The officers of those five districts seem to have sat cool over those telegrams because there is no evidence showing that they took any steps for publishing the reauction.
A curious feature of this case is that the Excise authorities claim to have sent letters to five private licensees informing them that the reauction was fixed for the 23rd of May 1967 at 10.00 a.m.
These letters are at Annexure R 8 and are dated May 20, 1967.
20th May fell on a Saturday and the reauction was fixed for 23rd May which was the following Tuesday.
924 In the normal course, these letters would have been received by the addressees on Monday, that is, a day or less prior to the date of the reauction which was to be held the next morning at 10 O 'clock.
In these circumstances, it is difficult to hold that any publicity as such was given to the reauction.
When a rule requires 'publicity ' to be given to an auction sale, what is necessarily implied is that due steps must be taken to give sufficiently advance intimation of the intended sale and its material terms to the members of the public or, at least, to that section of the public which normally engages in the kind of business which is the subject matter of the auction sale.
Even the five special invitees would have found it difficult to come prepared to take part in resale which was held on 23rd May.
They were not invited to a wedding feast.
They were invited to attend the resale of a liquor vend and it is well known that a certain amount has to be paid by the successful bidder on the fall of the hammer.
We are also unable to appreciate that the Excise authorities of the Government of Haryana should have picked and chosen some five particular persons as recipients of the notice of reauction.
How their names transpired and what is their particular status, respectability and standing in the liquor trade, are matters on which no light is thrown.
There is no material before us on which to doubt the integrity of the authorities who were connected with the reauction.
But their conduct must be above suspicion.
The bid sheet shows that only six persons offered bids in the reauction and none of the five invitees was amongst those six.
It appears that a small, closely knit group participted in the reauction, successfully keeping out others who might have of offered adequate bids in the reauction, were they to have notice thereof.
Indeed, the amount which was fetched in the reauction itself furnishes prima facie evidence that all was not well with the reauction.
The respondents had given their original bid in the sum of Rs. 10,92,960.00 which covered a period of one year from April 1, 1967 to March 31, 1968.
The reauction was held on May 23, 1967 for a licence which was to be effective for the little over 10 months.
It is surprising that the reauction should have fetched a bid of as small an amount as Rs. 2,46,000.
Since the reauction was not held in accordance with the rules, either in their letter or in their spirit, and since, especially, due publicity was not given to the reauction, it is impossible to uphold reauction and mulet the respondents in the resultant shortfall.
We 925 are of the opinion that rule 36(3) of the Rules was not even substantially complied with.
It is reasonable to assume that since due publicity was not given to the reauction, adequate bids were not received, resulting in prejudice to the respondents.
Accordingly, we set aside the finding of the High Court that the relevant rules governing reauction of vends were complied with substantially.
Since the reauction did not conform to the rules and the respondents were prejudice thereby, they cannot be held liable to make good the difference between the amount which was payable by them and the amount which was fetched at the reauction.
The result is that the appeal filed by the State of Haryana is dismissed, though for different reasons, and the respondents absolved from their liability to pay the amount which is demanded of them by the notice dated May 7, 1967 issued by the Collector and Deputy Excise and Taxation Commissioner, Haryana.
That disposes of Civil Appeal No. 1507 of 1969.
We will now take up for consideration two other groups of appeals, viz, Civil Appeals 1202 to 1220 of 1970 and Civil Appeals 743 to 794 of 1974.
No question of reauction arises in these groups of appeals except in Civil Appeals Nos.
1204, 1205 and 1206 of 1970.
We shall deal with those three appeals separately a little later.
The question which arises in the remaining appeals in these two groups, as regards the power of the State Government to charge the particular amount to the licensees is concluded by the judgments of this Court in Har Shunkar vs The Deputy Excise and Taxation Commissioner, State of Haryana vs Jage Ram (supra) and State of Punjab vs Ajudhia Nath(1).
It was held in those decisions that the State Government has the power to charge the particular amounts to the licensees.
The judgments of the High Court denying to the State Government that power must therefore be set aside and to that extent the appeals filed by the State of Haryana allowed.
The appeals which now remain for consideration are Civil Appeals 1204 to 1206 of 1970 and Civil Appeals 1564 to 1567 of 1970.
In these cases also, as in all other cases which are being disposed of by this judgment, the power of the State Government to 926 levy the particular charge must be upheld in view of the aforesaid three judgments.
The judgment of the High Court in these cases shall therefore have to be set aside to the extent to which the High Court had denied that power to the State Government.
But the further question which arises in these appeals is whether the respondents can be called upon to pay the difference between the amounts which they were liable to pay under the terms of the original auction in their favour and the amounts which were fetched in the resale of the vends.
The facts of these groups of cases are even more peculiar than the facts of Civil Appeal No. 1507 of 1969 with which we have dealt at the outset of this judgment.
In these cases, it was originally intended to reauction the vends in respect of which the respondents had committed default and some publicity, not due or adequate by any standard, was given to the reauction.
The reauctions commenced as scheduled but the Excise authorities changed their mind in midstream and decided, without any rhyme or reason, to withdraw the reauctions and to grant fresh licences by private negotiations on the spot.
We agree fully with the very careful judgment of Justice Bal Raj Tuli that due publicity was not given to the reauction.
It is stated in the affidavit filed on behalf of the State Government in the High Court that, directions were given to the Excise and Taxation Officer, Gurgaon by a circular letter that he should give wide publicity to the reauction due to be held on July 24, 1968.
The circular letter was not placed on the record, nor was the High Court a apprised as to how the Excise and Taxation Officers of the Governments of Haryana and Punjab gave publicity in their respective districts to the proposed reauctions.
It is significant that the respondents wrote letters to the Excise and Taxation Officer, Gurgaon on July 20, 1968 complaining that due publicity was not being given to the reauctions and that the Rules required such publicity to be given.
In spite of this, no steps were taken to comply with the requirement of the rules, even though the cost of publicity would have been required to be borne by the respondents themselves.
It was urged that Hindi handbills were distributed in Delhi advertising the auction.
Even those handbills do not contain the requisite information which is required to be published under rule 36(3).
Tuli, J. was therefore right in not treating the handbills as constituting due publicity to the reauctions.
927 If the reauctions cannot be upheld since due publicity was not given to them, the grant of licences by private negotiations during the course of reauctions would also have to be set aside.
Assuming that there were valid reasons for revoking the decision to hold the reauctions, like the paucity of adequate bids at the reauctions, the reauctions should have been postponed and due publicity given to the decision to grant licences by private negotiations.
By rule 36(24), power has been conferred to resell vend by public auction or by private contract.
But this latter power has to be exercised with great care and circumspection.
Public auction has to be the normal mode of selling public property.
It is open to public gaze and eschews many temptations to which private contracts are subject.
It is only when at public auction is not feasible or has failed to attract bidders after due publicity, that a private contract can be negotiated for disposing of public property or rights in such property.
Not only is no reason forthcoming why the intention to hold a public auction was abandoned after the auction had commenced but the proceedings were not adjourned even for a few days in order to publicise the intention to resell the vends by private contract.
The Excise authorities could not have abruptly decided to jettison the original intention of holding a public auction and grant licences by private negotiations on the spur of the moment, that very day and at that very hour.
The decision smacks of arbitrariness, is unfair and unreasonable, and cannot be allowed to stand.
For these reasons, respondents in Civil Appeals 1204 to 1206 of 1970 and Civil Appeals 1564 to 1567 of 1970, are not liable to pay the difference between the amounts which they were liable to pay under the original auctions and the amounts which they were liable to pay under the original auctions and the amounts which were fetched by the re grant of licences by private contracts.
The aforesaid discussion will show that the appeals filed by the State of Haryana succeed to the extent that the State Government has the power to levy the charge which it demanded of the respondents.
The finding of the High Court that the State Government has no such power is incorrect and must be set aside.
The findings called for by us from the High Court on the question whether due publicity was given to the reauctions are set aside.
We hold that due and adequate publicity was not given to the reauctions.
We also hold that the regrant of licences by private negotiations is not in conformity with the Rules and must be struck down in the circumstances of the case.
As a result of the infirmities from which the reauctions and the re grant of licences by private 928 contract suffer, respondents in whose cases fresh licences were granted either in reauctions or by private contract will not be liable to make good the shortfall.
The reauctions were necessitated on account of the default committed by the respondents, but the reason of the shortfall is the laxity and arbitrariness with which the resale of the vends was held or fresh licences granted by private contract.
There will be no order as to costs in any of these appeals.
Order accordingly.
H.L.C. Dismissing the appeals in which liquor vends was resold and allowing And appeals in which liquor vends was not resold.

summary:
The respondents in this batch of appeals had obtained licences to sell liquor by offering highest bids at auctions held far sale of liquor vends.
On their failure to make payments due under the terms of auction, the State Government resold the liquor vends in some cases, either by re auction or by private negotiations and called upon the respondents to pay the difference between the amount which they were liable to pay and the amount realised by the resale of the vends.
In other cases, the respondents were called upon to pay the amounts due under the terms of the original auction.
The respondents filed writ petitions contesting the State Government 's power to demand the various amounts which they had defaulted in paying and the High Court allowed the petitions.
In appeals filed by the State Government, this Court held that since the rights in regard to manufacture and sale of intoxicants were vested in the State as a privilege, it was open to the State to part with those rights for consideration, and remanded the matter to the High Court calling for its findings on whether in cases in which the liquor vends had been resold by re auction it was necessary to give publicity to the same; and, if so whether such publicity had in fact been given.
The High Court found that r. 36(3) of the Punjab Liquor Licence Rules, 1956, which was applicable in these cases, required publicity to be given to an auction sale and this rule had been substantially complied with in all cases in which re auction had been held.
Dismissing the appeals in which liquor vends had been resold either by re auction or by private negotiations and allowing the appeals in which liquor vends had not been resold.
^ HELD: 1.
When a rule requires 'publicity ' to be given to an auction sale, what is necessarily implied is that due steps must be taken to give sufficiently advance intimation of the intended sale and its material terms to the members of the public or, at least, to that section of the public which normally engage in the kind of business which is the subject matter of the auction sale.
[924 B] In the instant case, no notice as required by r. 36(3) was given to the public at all.
Neither the time nor the date of the re auction, nor the location 918 or description of the vend which was to be put to re auction, nor the conditions of the re auction were ever published by the Excise authorities prior to the re auction.
What was done by the concerned authorities was to send telegrams to Excise officers of five districts with a request that they should give publicity to the re auction and those officers did not take any steps to publicise the re auction.
Since the re auctions were not held in accordance with the rules, and since, especially, due publicity was not given to the re auctions, the respondents cannot be held liable to make good the difference between the amount which was payable by them and the amount which was fetched at the re auction.
[923 F H, 924 A] 2.
By r; 36(24) power has been conferred to re sell a vend by public auction or by private contract.
But this latter power has to be exercised with great care and circumspection.
Public auction has to be the normal mode of selling public property.
It is open to public gaze and eschews many temptations to which private contracts are subject.
It is only when a public auction is not feasible or has failed to attract bidders after due publicity, that a private contract can be negotiated for disposing of public property or rights in such property.
[27 B C] In cases in which re auctions though commenced as scheduled were withdrawn and licences were granted by private negotiations on the spot even if there were valid reasons were for revoking the decision to hold the re auctions, the re auctions should have been postponed and due publicity given to the decision to grant licences by private negotiations.
The Excise authorities could not have abruptly decided to jettison the original intention of holding a public auction and grant licence by private negotiations on the spur of the moment.
The decision smacks of arbitrariness, is unfair and unreasonable and cannot be allowed to stand.
[926 C D] 3.
The question whether the State has the power to charge the particular amounts to the licensees of liquor vends is concluded by judgments of this Court affirming such a power in the State Government.
Judgments of the High Court to the contrary in all those cases in which no question of re auction of liquor vends arises must therefore be set aside and to that extent the appeals filed by the State have to be allowed.
[925 F G] Har Shankar vs Deputy Excise and Taxation Commissioner, ; ; State of Haryana vs Jage Ram, ; ; & State of Punjab vs Ajudhia Nath, ; ; referred to.


summary:
The first respondent in civil appeal No. 2005 of 1982 had a parcel of land measuring 2530 sq. metres with a building constructed on a small portion of it, in an urban agglomeration falling within category specified in Schedule I of the Urban Land (Ceiling and Regulation) Act, 1976.
As the aforesaid first respondent wanted to sell some portion of the open land, he sought permission from the competent authority for that purpose.
The competent authority refused to give permission on the ground that the total area of land in his possession exceeded the cieling limit of 2000 sq. metres prescribed by the Act for that area.
In appeal the District Judge held that the first respondent was entitled to exclude 500 sq. metres in view of the bye laws prevailing in that area and another 500 sq. metres for the beneficial and convenient enjoyment of the building to satisfy the requirement of the town planning and environmental purposes and since after excluding these portions of the areas there was no excess and the land was not covered by the Act, the refusal of permission by the competent authority was not legally valid.
In a writ petition filed by the State the High Court strongly relied on the provisions of section 4(9) read with section 2.
2(q)(ii) of the Act and upheld the decision of the District Judge.
The State challenged the High Court 's interpretation of the principles laid down in the Act for computing the ceiling area.
The facts of other appeals and petitions were similar.
Allowing the appeals and petitions; disapproving the view taken by the District Judge and the High Court; laying down the method of computing the ceiling area and sending back the cases to competent authority to get fresh computations done.
^ HELD: It is clear that there can be only three categories of Urban lands (1) land which is entirely open in the sense that it does not contain any construction of building, 898 (2) where the entire land is covered by building or dwelling house, and (3) land on a part of which there is a building with or without a dwelling unit thereon ant the rest of the land is vacant.
[907 F H] So far as the first category is concerned, no complexity is because any open area in excess of 2000 sq. metres in category States will be taken over by the Government.
For instance, if an open land without construction consists of 6000 sq. metres, the computation of the ceiling area would present no difficulty because 4000 sq. metres will be taken over by the Government and 2000 sq. metres will be left to the landholder.
Secondly, if the entire land is covered by a building, such an area would completely fall outside tho ambit of the Act and no question of computation would arise.
Thirdly, a question arises as to what would happen if there is a land on a part of which there is a building with a dwelling unit and an area (open land) which is appurtenant thereto is vacant.
Section 4(9) of the Urban Land (Ceiling and Regulation) Act, 1976 provides for meeting such a contingency.
[907 H, 908 A C] Section 4(9) contemplates that if a person holds vacant land as also other portion of land on which there is a building with a dwelling unit, the extent of land occupied by the building and the land appurtenant thereto shall be taken into account in calculating the extent of the vacant land.
This sub section has to be read in conjunction with section 2 (q) (ii) and (iii), which defines 'vacant land '.
[908 D G] The plain language in which sub section
(9) of section 4 had been expressed clearly shows that when the legislature used the word 'appurtenant ', it meant to qualify the land which was occupied by the building.
The words 'appurtenant thereto ' qualify the building which precedes the land.
The expression appurtenant ' shows that the legislature intended that in taking into consideration the land, it must be the land not contiguous or close to the building but the very land on which the building stands.
Similarly, the words 'other land occupied by the building ' also lead to the same conclusion.
[909 H, 910 A B] Taking the legal and dictionary meaning of the word 'appurtenant ' or 'appurtenances ' the inescapable conclusion is that the words 'either other land or appurtenances ' are meant to indicate that the land in question should form an integral part of the main land containing the building in question.
[911 E P] Words & Phrases, Legally Defined (Vol.
1 2nd Edn.) at p. 105; Words & Phrases, Judicially Defined (Vol. I); Words Stroud 's Judicial Dictionary Third Edn., at p. 176 referred to.
Bearing in mind the well settled rule of construction that the language of a beneficial statute must be construed so as to suppress the mischief and advance its object there could be no other interpretation of the words "appurtenant or other land" than that the land appurtenant means not a land contiguous 899 to some other land but the very land which is a part of the same plot or area which contains the building or dwelling house.
This also seems to be the avowed object of section 4(9).
[911 G H] The scheme of the Act seems to be that if there is a constructed building with a dwelling unit, the structure thereon cannot be treated as open land for the purpose of declaring it as an excess land beyond the ceiling limit.
Similarly, the land kept open under the municipal regulations (upto 500 sq. metres) and an additional 500 sq. metres appurtenant to the land would not be available for being declared as excess land beyond the ceiling limit.
[912 G H] The High Court was absolutely wrong in importing the concept of contiguity on the assumption that section 4(9) was attracted only if the person concerned held a distinct parcel of land which was vacant land.
The argument that once a plot contains a building, the whole of the plot would be exempt from the ceiling area cannot be countenanced on a plain and simple interpretation of section 2 (q) ii) read with section 4(9).
Section 4(9) would be attracted regardless of whether the landholder owned a distinct part of land on which there is no construction along with any other parcel of land where there is some construction.
[913 D F] A combined reading of section 4(9) and section 2 (q) (ii) and (iii) would lead to the irresistible inference that in cases which fall within the third category mentioned above for determining the ceiling area the (1) total area of the land of a landholder is first to be determined and if the total area, built or unbuilt, falls below 2000 sq. metres in category areas, there would be no question of any excess land, (2) where, however, there is a building and a dwelling unit then the area beneath the building and the dwelling unit would have to be excluded while computing the ceiling.
Further if there are any bye laws requiring a portion of the land to be kept vacant, the landholder would be allowed to set apart the said land to the maximum extent of 500 sq. metres.
Ho would also be allowed to retain an additional area of 500 sq. metres for the beneficial use of the building so that he may enjoy the use of a little compound also for various purposes.
[912 B E] After excluding these items if the land falls below the ceiling limit there would be no question of excess but if there is excess that is beyond the ceiling limit, the same would have to be taken over by the Government.
[912 E] Where, however, it is found that any person holds vacant land in two or more categories of urban agglomerations specified in Schedule I, the computation and determination of ceiling area is to be done in accordance with the formula laid down in cl.
(a) to (d) of g. 4(1) of tho Act.
[915 E F] 900 Where a person has several plots, some completely vacant and some partly built and partly vacant, for computation of the ceiling area the competent authority will have to total the entire area of the lands in various places, completely vacant or partly built and partly vacant and permit the landholder to retain 2000 sq. metres or less as provided in clauses (a) to (d) of section 4(1) and give the landholder the option (as provided under section 6) to select the area which he desires to retain provided that does not exceed the ceiling limit.
[915 H, 916 A C] M/s. Eastern Oxygen & Acetylene Ltd. vs State of Madhya Pradesh, A.I.R. 1981 MP 17, approved.
State of Uttar Pradesh & Anr.
vs L. J. Johnson & Anr.
(1979) All.
LJ 1222, overruled.


judgement:
minal ' Appeal No. 93 of 1956.
Appeal by special leave from the judgment and order dated the April 14, 1955, of the Bombay High Court in Criminal Appeal No. 156 of 1955 and Criminal Revision Application No. 435 of 1955 arising out of Judgment dated the January 3,1955, of the Court of 636 the Additional Chief Presidency Magistrate, Bombay, in Case No. 9/p of 1954.
Purshottam Tricumdas, J. B. Dadachanji, section N. Andley and Rameshwar Nath, for the appellant.
C. K. Daphtary, Solicitor General of India, Porus A. Mehta and R. H. Dhebar, for the respondent.
February 12.
The Judgment of the Court was delivered by BHAGWATI J.
This appeal with special leave under article 136 of the Constitution raises the question whether the High Denomination Bank Notes (Demonetisation) Ordinance, 1946 (Ordinance No. III of 1946) promulgated by the Governor General of India on January 12, 1946, was in operation on July 11, 1953, when the offence under section 7 read with section 4 thereof was committed by the appellant herein.
The appellant who was the accused No. 1 before the Additional Chief Presidency Magistrate 's Court, Bombay, was charged along with the accused Nos. 2, 3, 5 and 6 with having on or about July II, 1953, transferred by sale 10 High Denomination Bank Notes of the Denomination of Rs. 1,000 each to one Velji Lakhamshi Joshi for Rs. 1,800 at the rate of Rs. 180 per note and thus contravened the provisions of section 4 of the Ordinance and committed an offence punishable under section 7 of the Ordinance read with section 109 of the Indian Penal Code.
A preliminary objection was urged by the learned counsel for the appellant that the said Ordinance was not in operation at the date when the offence was alleged to have been committed and that therefore the prosecution was not maintainable.
This objection was overruled by the learned Presidency Magistrate and the trial ended in the conviction of the appellant along with the co accused of the offence with which they had been charged.
The appellant was sentenced to pay a fine of Rs. 8,000 and in default suffer six months ' rigorous imprisonment and the co accused of the appellant were awarded varying sentences of fine with which however we are not concerned.
The appellant took an appeal to the High Court of Judicature at Bombay being Criminal Appeal No. 156 637 of 1955.
The State of Bombay, the respondent herein, also filed an application for enhancement of the sentence, being Criminal Revision Application No. 435 of 1955.
The co accused of the appellant had also filed appeals against their convictions and sentences of fine imposed upon them and all these appeals and the application of the respondent were heard together by a Division, Bench of the High Court.
The High Court agreed with the learned Presidency Magistrate in regard to the finding of fact and held that the appellant had in fact transferred by sale 10 High Denomination Bank Notes of Rs. 1,000 each to the possession of Velji Lakhamshi and his act fell within the prohibition enacted in section 4 of the Ordinance.
The High Court also overruled the contentions which were urged before it in regard to the Ordinance having lapsed and ceased to be in operation before July 11, 1953, the date on which the offence was alleged to have been committed.
It accordingly confirmed the conviction recorded against the appellant by the learned Additional Chief Presidency Magistrate.
In regard to the sentence the High Court saw no ground for enhancing the same and confirmed the sentence of fine of Rs. 8,000 and in default six months ' rigorous imprisonment which had been awarded by the learned Presidency Magistrate to the appellant.
The appellant applied to the High Court for a certificate under article 134 (1) (c) of the Constitution.
The said application was however dismissed by the High Court with the result that he applied for and obtained from this Court special leave under article 136 of the Constitution.
The decision of this appeal turns on the construction of section 72 of the 9th Sch.
of the Government of India Act, 1935 (25 and 26 Geo.
42) and section 1 (3) of the India and Burma (Emergency Provisions) Act, 1940 (3 and 4 Geo.
Section 72 of the 9th sch.
of the Government of India Act, 1935, read as follows: " The Governor General may, in cases of emergency, make and promulgate ordinances for the peace and good Government of British India or any part thereof, and any ordinance so made shall, for the 638 space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature; but the power of making ordinances under this section is subject to the like restrictions as the power of the Indian Legislature to make laws; and any ordinance made under this section is subject to the like disallowance as an Act passed by the Indian Legislature, and may be controlled or ,superseded by any such Acts.
" Section 1 (3) of the India and Burma (Emergency Provisions) Act, 1940, ran as under: " Section seventy two of the Government of India Act, (which, as set out in the Ninth Schedule to the Government of India Act, 1935, confers on the Governor General power to make Ordinances in cases of emergency) shall, as respects Ordinances made during the period specified in section three of this Act, have effect as if the words "for the space of not more than six months from its promulgation" were omitted; and, notwithstanding the provision in the said section seventy two that the power of making Ordinances thereunder is subject to the like restrictions as the power of the Indian Legislature to make laws (a) Ordinances may, during the said period, be made under that section affecting the Army Act, the Air Force Act, or the Naval Discipline Act; and (b) Section one hundred and eleven of the Government of India Act, 1935 (which exempts certain British subjects from certain Indian Laws) shall not apply to any ordinance made under the said section seventy two during that period.
" Section 3 referred to hereinabove was in the terms following: " The period referred to in the preceding sections is the period beginning with the date of the passing of this Act and ending with such date as His Majesty may by Order in Council declare to be the end of the emergency which was the occasion of the passing of this Act.
" The India and Burma (Emergency Provisions) Act, 1940, was passed on June 27, 1940 , and was an Act to 639 make emergency provisions with respect to Government of India and Burma.
On April 1, 1946, was published in the Gazette of India Extraordinary His Majesty 's Order in Council called " The India and Burma (Termination of Emergency) Order, 1946 ".
By the said order the period of emergency referred to in section 3 of the India and Burma (Emergency Provisions) Act, 1940, was declared to have ended on April 1, 1946.
The period specified in section 3 of the said Act thus extended from June 27, 1940, to April 1, 1946.
The Ordinance in question was promulgated on January 12, 1946, and was therefore within the said period.
The argument which was addressed before us by the learned counsel for the appellant based on these provisions was (a) that as soon as the declaration that the emergency was at an end was made on April 1, 1946, the original position was restored and the Ordinance in question which had been promulgated in exercise of the emergency powers ipso facto lapsed when the emergency was declared to have ended, (b) that, in the alternative, section 72.
of the 9th Sch.
of the Government of India Act, 1935, having been thus restored with effect from April 1, 1946, one must look to its terms as they originally stood to justify the continuance of the ordinance in question after April 1, 1946, whensoever it may have been promulgated.
It will be useful at this stage to see what was the scheme provided in the Government of India Act, 1935, for enacting legislative measures.
It may be noted that the Act envisaged the establishment of the Federation of India.
Part II, ch. 3 provided for the constitution of the Federal Legislature which was to consist of two chambers known respectively as the Council of States and the House of Assembly.
The normal legislative procedure required a bill to be passed by both the Chambers of the Federal Legislature and assented to by the Governor General.
There was a distribution of legislative powers between the Federal Legislature and the Provincial Legislatures and the Federal Legislature was invested with the power to make laws for.
the whole or any part of British India or for any Federated State with respect to any of the matters enumerated 640 in the Federal Legislative List and any of the matters enumerated in the Concurrent Legislative List.
Power was however given, to the Federal Legislature, if the Governor General in his discretion declared by a "Proclamation of Emergency" that a grave emergency existed whereby the security of India was threatened, whether by war or internal disturbance, to make laws for a Province or any part thereof with respect to any of the matters enumerated in the Provincial Legislative List.
These were the powers of the Federal Legislature to enact legislative measures.
The Governor General was, however, conferred certain legislative powers in Part II, ch. 4.
Power was conferred upon him to promulgate Ordinances if at any time when the Federal Legislature was not in session he was satisfied that circumstances existed which rendered it necessary for him to take immediate action.
Ordinances thus promulgated were to have the same force and effect as Acts of the Federal Legislature assented to by the Governor General.
But every such Ordinance would cease to operate at the expiration of six months from the re assembly of the Legislature.
Similar power was conferred upon the Governor General to promulgate Ordinances if at any time he was satisfied that circumstances existed which rendered it necessary for him to take immediate action for the purpose of enabling him satisfactorily to discharge his functions in so far as he was required in the exercise thereof to act in his discretion or to exercise his individual judgment.
Such Ordinances also were to have the same force and effect as the Acts of the Federal Legislature assented to by the Governor General and were to continue in operation for such period not exceeding six months as may be specified therein but could by subsequent Ordinances be extended for a further period not exceeding six months.
Power was also conferred upon the Governor General if at any time it appeared to him that for the purpose of enabling him satisfactorily to discharge his functions in so far as he was required in the exercise thereof to act in his discretion or, to exercise his individual judgment it was essential that provision should be made by legislation, to enact I SUPREME COURT REPORTS 641 Governor General 's Acts which when enacted were to have the same force and effect as Acts of the Federal Legislature assented to by the Governor General.
These were the special legislative powers conferred upon the Governor General which could be exercised by him when the normal legislative procedure could not be resorted to.
It is worthy of note however that howsoever and under whatever circumstances the legislative powers vested in the Governor General were exercised by him, the Governor General 's Acts thus enacted and the Ordinances thus promulgated were equated with the Acts of the Federal Legislature assented to by the Governor General.
Part XIII enacted Transitional Provisions.
A period of time was bound to elapse between the commencement of Part III of the Act which related to the Governor 's Provinces and the establishment of the Federation and section 317 of the Act continued in force certain provisions of the Government of India Act with amendments consequential on the provisions of the Act set out in the 9th Sch.
thereof until the estab lishment of the Federation.
Section 72 above quoted formed part of the 9th Sch.
under the caption " Indian Legislature" and conferred upon the Governor General power to make and promulgate Ordinances for the peace and good Government of British India or any part thereof in cases of emergency.
Ordinances thus promulgated by the Governor General in exercise of the power thus conferred upon him were to continue in operation for the space of not more than six months from the date of their promulgation and were to have the like force of law as Acts passed by the Indian Legislature.
They were also equated with the.
Acts passed by the Indian Legislature by having resort to the normal legislative procedure set out in the Government of India Act.
Even though the Governor General 's Acts and the Ordinances promulgated by him were thus equated with the Acts passed by the Federal Legislature or the Indian Legislature as the case may be, the period of duration thereof had to be determined.
Every statute for which no time is limited is I 642 SUPREME COURT REPORTS [1957] called a perpetual Act, and its duration is prima facie perpetual.
It continues in force until it is repealed.
(Vide Craies on Statute Law, 5th Ed.
p. 374; Halsbury 's Laws of England, Hailsham Ed., Vol.
XXXI, p. 511, para.
If an Act contains a proviso that it is to continue in force only for a certain specified time, it is called a Temporary Act.
This result would follow not only from the terms of the Act itself but also from the fact that it was intended only as a temporary measure.
This ratio has also been applied to emergency measures which continue during the subsistence of the emergency but lapse with the cessation thereof.
It was therefore contended that Ordinances promulgated under the emergency powers vested in the Governor General would be in operation during the period of emergency but would cease to be in operation once the emergency was declared to have ended.
In the instant case before us the Ordinance in question was promulgated in exercise of the emergency powers vested in the Governor General under section 72 of the 9th Sch.
of the Government of India Act, 1935, and it was urged that the Ordinance thus promulgated would cease to be in operation after the emergency was declared to have ended on April 1, 1946, by the India and Burma (Termination of Emergency) Order, 1946, in spite of the words of limitation " for the space of not more than six months from its promulgation " having been omitted from section 72 by section 1(3) of the India and Burma (Emergency Provisions) Act, 1940.
Reliance was placed in support of this contention on the observations of Vardachariar C. J. in King Emperor vs Benoari Lall Sharma and others(1): " Legislation by Ordinance has no doubt been given the same effect as ordinary legislation and the ambit as to the subject matter is the same in both cases.
But there are two fundamental points of difference which have a material bearing on the present question: One is that by the very terms of s.72 of the Ninth Schedule to the Constitution Act, the operation of the Ordinance is limited to a period of (1) , 137.
643 six months (and even now it is only temporary, though the particular limit has been removed), and secondly, it is avowedly the exercise of a special power intended to meet an emergency." Zafrulla Khan J. also had expressed himself to the same effect in King Emperor vs Sibnath Banerjee (1): " The legislature can at any time enact a measure and such measure can remain in force without any limit of time; but the exercise of the Ordinance making power is limited in two ways (1) by the limitation as to the circumstances in which it can be exercised, and (ii) by the limitation as to the time during which any measure so enacted can remain in operation.
The existence of an emergency is a condition precedent to the exercise of the power.
The fact that the Court cannot go behind a declaration of emergency made by the Ordinance making authority cannot affect this question.
The power was intended to be availed of and could be availed of only in an emergency, whereas ordinary legislation is not governed by any such limitation.
Similarly, an Ordinance is necessarily of limited duration, whether under section 72 or under the terms of the India and Burma (Emergency Provisions) Act of 1940.
" An argument was accordingly addressed before us that even though the Ordinance in question had been promulgated during the period specified in a. 3 of the India and Burma (Emergency Provisions) Act, 1940, viz., between June 27, 1940, and April 1, 1946, and section 72 of the 9th Sch.
of the Government of India Act, 1935, was to be read with the omission of the words " for the space of not more than six months from its promulgation " therefrom, the effect of such omission was not to continue the duration of the Ordinance in question in any event beyond April 1, 1946.
The Ordinance lapsed or ceased to be in operation on the, declaration having been made on April 1, 1946, that the emergency had ended.
This argument however ignores the fact that whatever Governor General 's Acts were enacted or (1) , 12. 83 644 Ordinances promulgated by him in exercise of his special legislative powers or in exercise of the emergency_ power conferred upon him by section 72 of the 9th Sch.
of the Government of India Act, 1935, were all equated with the Acts of the Federal Legislature or the Indian Legislature, as the case may be, assented to by the Governor General.
If there was a limitation to be found in the Acts or the Ordinances themselves in regard to the duration thereof the same was to prevail.
But if no time was limited in the enactment itself for its duration it was to continue in force until it was repealed.
If by the operation of section 1 (3) of the India and Burma (Emergency Provisions) Act, 1940, the words " for the space of not more than six months from its promulgation " were omitted from section 72 during the period specified in section 3 of that Act, viz., June 27,1940 to April 1, 1946, there was no limitation of the period of duration of the Ordinance in question and the Ordinance having the like force of law as an Act passed by the Indian Legislature without any limitation on its duration was to continue in force until it was repealed.
The emergency under which the Governor General was invested with the power to make and promulgate Ordinances for the peace and good government of British India or any part thereof under section 72 was the condition of the exercise of such power, by the Governor General and did not impose any limitation on the duration of the Ordinances thus promulgated.
For determining the duration of such Ordinances one had to look to the substantive provisions of section 72 which in terms enacted and laid down the limitation of "not more than six months from its promulgation " on the life of the Ordinance.
If these words had not been omitted by section 1 (3) of the India and Burma (Emergency Provisions) Act, 1940, the Ordinances thus promulgated would have been of a duration of not more than six months from their promulgation.
Once these words were omitted by a. 1 (3) of the India and Burma (Emergency Provisions) Act, 1940, section 72 of the 9th Sch.
of the Government of India Act, 1935, would read as under: 645 The Governor General may, in cases of emergency, make and promulgate ordinances for the peace and good government of British India or any part thereof and any ordinance so made shall. . . have the like force of law as an Act passed by the Indian Legislature; but the power of making ordinances under this section is subject to the like restrictions as the power of the Indian Legislature to make laws; and the like disallowance as an Act passed by the Indian Legislature, and may be controlled or superseded by any such Act.
" The effect of the deletion of these words from section 72 leaving the section to be read as above had the necessary effect of equating the Ordinances which were promulgated between June 27, 1940, and April 1, 1946, with Acts passed by the Indian Legislature without any limitation of time as regards their duration.
Ordinances thus promulgated were perpetual in duration and continued in force until they were repealed.
This position was considered by the Federal Court in J. K. Gas Plant Manufacturing Co., (Rampur) Ltd. and others vs King Emperor (1) where Spens C. J. observed: " These Ordinances were made under the powers conferred on the Governor General by section 72 of the Ninth Schedule to the Constitution Act, as amended by the India and Burma (Emergency Provisions) Act, 1940 (3 & 4 Geo.
6, Ch. 33).
Under the said section 72, as it originally stood, Ordinances were limited to an effective life of six months only from the date of promulgation.
Sub section (3) of section I of the said Act, however, provided that in respect of Ordinances made under section 72 during the period specified in section 3 of the Act, section 72 should have effect as if the words ,for the space of not more than six months from its promulgation" were omitted.
The period specified in section 3 of the Act is " the period beginning with the date of the passing of this Act and ending with such date as His Majesty may by Order in Council declare to be the end of the emergency which was the occasion of the passing of this Act.
" The date of `the passing of the (1) , 161. 646 said Act was the 27th June, 1940, and the emergency was not notified to have come to an end on the 1st April, 1946.
It was contended on behalf of the appellants that the true construction to be given to section 72 as so amended was in effect to substitute in section 72 in respect of the duration of an Ordinance, the period specified in section 3 of the Act for the original six months ' period and that accordingly on the expiration of that period, viz., on the 1st April, 1946, Ordinances made after the passing of the Act automatically came to an end.
It was not made very clear how one could arrive at such a construction.
It appears to be based on the suggestion that the power to promulgate an Ordinance under section 72 was by the section confined to the existence of an emergency, Cf: the words in the sub section "in cases of emergency ", and that the Act was intituled an Act to make emergency provision with respect to the Government of India and Burma and defined the period of emergency.
Unless therefore the construction contended for by the appellants was accepted no period would be provided for the continuance of these Ordinances, and that could not have been the intention of the legislature, as the ordinance making power of the Governor General was recognised as temporary only.
In our opinion, the emergency on the happening of which an Ordinance can be promulgated is separate and distinct from and must not be confused with the, emergency which occasioned the pawing of the Act and the clear effect of the words of the, Act on section 72 is that Ordinances promulgated under that subsection during the period specified in section 3 of the Act are subject to no time limit as regards their existence and validity, unless imposed by the Ordinances themselves, or other amending or repealing legislation, whether by Ordinance or other.
In our judgment, it is clear that the second Lahore Tribunal did not cease to exist or to have jurisdiction in the case under appeal by reason of the expiration on the 1st April, 1946, of the period specified in section 3 of the Act in question.
" In our opinion, the above observations of Spens C. J. enunciate the correct position.
The Ordinance in 641 question having been promulgated during the period between June 27, 1940, 'and April 1, 1946, was perpetual in duration and continued in force until it was repealed.
Our attention has not been drawn to any subsequent Ordinance or Act of the Indian Legislature amending or repealing the said Ordinance with the result that it continues to be in force and was in operation on July 11, 1953, the date on which the offence in question was committed by the appellant.
This position was recognized in the Adaptation of Laws Order, 1950, issued under the Constitution Of India.
In the Second Schedule to the said Order were contained several Central Ordinances enacted between 1940 and 1946 including the High Denomination Bank Notes (Demonetisation) Ordinance, 1946 (Ordinance No. III of 1946) where in section II thereof the words " Part A States and Part C States " were to be sub stituted for "the provinces".
It is not necessary to refer to the other Ordinances appearing in this compilation but suffice it to say that in respect of all the Ordinances which were thus promulgated by the Governor General in exercise of the power conferred upon him under section 72 of the 9th Sch.
of the Government of India Act, 1935, the continuance thereof even after April 1, 1946, was predicated and the adaptations prescribed in the Adaptation of Laws Order, 1950, issued under the Constitution of India were made applicable thereto.
This position is further supported by referring to the relevant provisions of the (II of 1934).
Section 26 of that Act provided ill (1) Subject to the provisions of sub section (2), every bank note shall be legal tender at any place in India in payment or on account for the amount expressed therein, and shall be guaranteed by the Central Government.
(2)On recommendation of the Central Board the Central Government may, by notification in the Gazette of India, declare that, with effect from such date as may be specified in the notification, any series of bank notes of any denomination, shall cease to be legal tender save at such office or a agency of the bank and to such extent as may be specified in the notification.
648 Under section 1 (2) of the Act as it stood, the Act extended to whole of India excepting the State of Jammu and Kashmir.
The ' High Denomination Bank Notes (Demonetisation) Ordinance, 1946 (Ordinance No. III of 1946) declared that Denomination Notes of the denominational value of Rs. 500, Rs. 1,000 or Rs. 10,000 ceased to be legal tender in payment or on account at any place in British India on the expiry of January 12, 1946.
The Ordinance having continued in operation even after the declaration of the emergency having come to an end was made on April 1, 1946, the said notes continued to be ineffective as legal tender in India, though the position in Jammu and Kashmir in regard to the same could not be affected by reason of the , not having been made applicable to the State of Jammu and Kashmir as stated above.
On September 25, 1956, however, the (LXII of 1956) being an Act to provide for the extension of certain laws to the State of Jammu and Kashmir was passed by the Parliament.
In the Schedule to that Act was contained the (II of 1934).
The words " except the State of Jammu and Kashmir" were omitted from section 1, sub section
(2) and section 26A was added after section 26 of the Act.
Section 26A provides: ,, Notwithstanding anything contained in section 26, no bank note of the denominational value of five hundred rupees, one thousand rupees or ten thousand rupees issued before the 13th day of January, 1946, shall be legal tender in payment or on account for the amount expressed therein.
The law in the State of Jammu and Kashmir with regard to these High Denomination Bank Notes issued before January 13, 1946, was thus brought into line with the law as it obtained in the rest of India.
This would certainly have not been done but for the acceptance of the position that the Ordinance in question continued in operation even after April 1, 1946, and was in operation right throughout even after April 1, 1946.
649 The alternative argument addressed before us by the learned counsel for the appellant need not detain us at all, for the simple reason that reading section 72 in the manner suggested would be tantamount to giving a retrospective effect to the section as it originally stood in regard to Ordinances which had been promulgated between June 27, 1940, and April 1, 1946.
There is nothing to justify such retrospective operation.
As regards such Ordinances the period of their duration had to be determined having regard to the provisions of section 72 as they stood with the omission of the words " for the space of not more than six months from its promulgation " therefrom during tHe period specified in section 3 of the India and Burma (Emergency Provisions) Act, 1940, and the Ordinance in question was therefore not limited to the space of not more than six months from the date of its promulgation but was perpetual in its duration with the result that it continues in operation until it is repealed.
There is no warrant for reading the provisions of section 72 with the omitted words restored to their original position after April 1, 1946, while determining the duration of the Ordinances which had been promulgated between June 27, 1940, and April 1, 1946.
Both the contentions urged by the learned counsel for the appellant before us having thus failed, it follows that the High Denomination Bank Notes (Demonetization) Ordinance, 1946 (Ordinance No. III of 1946) was in operation on July 11, 1953, the date on which the offence was committed by the appellant and the appellant was rightly convicted by both the courts below.
The appeal will accordingly stand dismissed.
Appeal dismissed.

summary:
Under section 72 Of the 9th Sch.
of the Government of India Act, 1935: " The Governor General may, in cases of emergency, make and promulgate ordinances . and any ordinance so made shall, for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature . " ; section I (3) of the India and Burma (Emergency Provisions) Act, 1940, provided that section 72 Of the Government of India Act, 1935, shall as respects Ordinances made during the period beginning with June 27, 1940, the date of the passing of that Act, and ending with such date as His Majesty may by Order in Council declare to be the end of the emergency, have effect as if 635 the words " for the space of not more than six months from its promulgation " were omitted.
The appellant was prosecuted for having on July 11, 1953, contravened the provisions of section 4 of the High Denomination Bank Notes (Demonetisation) Ordinance, 1946.
The Ordinance was promulgated by the Governor General of India on January 12, 1946, but on April 1, 1946, an Order in Council was published in the Gazette of India Extraordinary whereby the period of emergency referred to in the India and Burma (Emergency Provisions) Act, 1940, was declared to have ended on April 1, 1946.
It was contended for the appellant that the Ordinance in question was not in operation on the date when the offence was alleged to have been committed and that therefore the prosecution was not maintainable, because (1) the Ordinance had been promulgated in exercise of the emergency powers and that it lapsed ipso facto on April 1, 1946, when the declaration was made that the emergency was at an end; and (2) section 72 of the 9th Sch.
of the Government of India Act, 1935, having been restored with effect from April 1, 1946, one must look to its terms as they originally stood, to justify the continuance of the Ordinance after April I, 1946.
Held, that the deletion of the words " for the space of not more than six months from its promulgation " from section 72 of the 9th Sch.
of the Government of India Act, 1935, by section 1 (3) of the India and Burma (Emergency Provisions) Act, 1940, had the effect of equating Ordinances which were promulgated between June 27, 1940, and April I, 1946, with Acts passed by the Indian Legislature without any limitation of time as regards their duration, and therefore continuing in force until they were repealed.
Though after April I, 1946, section 72 Of the 9th Sch.
of the Government of India Act, 1935, was restored in its original form, the continuance of the Ordinance in question after that date had to be determined having regard to the terms of the section as they stood on the date of such promulgation, as there was nothing to justify retrospective operation of the section so restored.
J. K. Gas Plant Manufacturing Co. (Rampur) Ltd. and others vs King Emperor, , relied on.


judgement:
ition Nos.
9078 to 9106, 9025 43 of 1982, 24 & 35.
43 46 and 2839 of 1983.
(Under article 32 of the Constitution of India).
WITH Civil Appeal Nos. 3812 & 3813 of 1983.
Appeals by Special leave from the Judgement and Order dated the 31st December, 1982 of the Andhra Pradesh High Court in W.P. Nos.
6844 of 1982 & 6937 of 1982.
AND (CMP.
13616, 16617, 22151, 22125 & 23486 of 1983).
For the Appearing Petitioners in Writ Petitions: M.K. Ramamurthi, Anil Dev Singh, Subhash Sharma, Satish Vig, Shri Narain, V.K. Pandita, R.D. Upadhyay and E.C. Agarwala. 987 For the Appearing Respondents in Writ Petitions: G.L. Sanghi and Mr. S.N. Kacker Altaf Ahmad and Irfan Ahmad.
A. Subba Rao for the Appellants in Civil Appeals.
S.S. Ray, Vineet Kumar, T.V.S. Narasimhachari, G.V.L. Narasimha Rao and Mrs. Urmila Sirur for the Respondents in Civil Appeals.
The Judgment of the Court was delivered by PATHAK, J.
This Court has had occasion in the past to entertain the complaints of several young men and women who aspired to admission to the Medical Colleges of their States and had been wrongly denied admission thereto.
In the writ petitions and civil appeals now before us, the grievance voiced by the petitioners and the appellants takes us to a new category of cases and to a new dimension.
They question the validity of nominations by the State Government of Jammu and Kashmir and the State Government of Andhra Pradesh of candidates to seats reserved in the Medical Colleges of other States.
The civil appeals are directed against the judgment dated December 31, 1982 of the Andhra Pradesh High Court dismissing writ petitions filed by the appellants.
The Medical Council of India, in its report on under graduate medical education, recommended that with a view to encouraging national integration, ten per cent of the seats in veery Medical College, other than those where admissions were planned on an all India basis, should be reserved, on a reciprocal basis for students from other States.
At the Joint Conference of the Central Council of Health and the Central Family Welfare Council, held from December 28, 1977 to January 31, 1978, the matter was considered and a resolution was passed recommending that five per cent of the seats in Medical Colleges should be reserved for candidates from other States on a reciprocal basis.
After protracted correspondence between a number of State Governments, the States of Andhra Pradesh, Jammu and Kashmir, Karnataka, Kerala and Tamil Nadu agreed upon such an arrangement.
It was decided that each of them would have the right to nominate candidates to seats reserved 988 in the Medical Colleges of the other participating States.
We are concerned herewith nominations made by the State Government of Jammu and Kashmir and the State Government of Andhra Pradesh.
Twenty two of the thirty nominations made by the State Government of Jammu and Kashmir for the year 1982 83 have been challenged in these writ petitions and all the nominations made by the State Government of Andhra Pradesh have been assailed in the associated Civil Appeals.
The petitioners in the writ petitions and the appellants in the appeals were candidates for admission to the M.B.B.S. course of studies in the Medical Colleges of their respective States, and not having succeeded in that object, they claim that they should have been properly considered for nomination by their State Governments to the seats reserved in the Medical Colleges outside their home States because they have secured higher marks in the qualifying examination than the nominated candidates.
They urge that the nominations actually made by the State Governments have been made in their absolute and arbitrary discretion, without reference to any objective criterion, or any controlling norms or guidelines.
They also allege that the nominations have been influenced by the personal relationship of the candidates to persons in the ruling political party or to Government officers in positions of high authority.
The position taken by the Jammu and Kashmir Government and by the Andhra Pradesh Government is that to serve the objective of national integration the selection of a candidate has to be determined not merely by the marks obtained by him in the qualifying examination but also by his ability to project an appropriate image of the culture of his home State in the State to which he is nominated.
It is submitted that no objective criterion is possible in that context, and the selection must perforce be left to the absolute and unfettered choice of the State Government.
The Andhra Pradesh Government relies on G.O.M. No. 508, M & H dated July 27, 1979, which brings the scheme into effect from the academic year 1979 80.
It expressly provides that the selection of candidates for such nominations is excluded from the purview of the Selection Committees constituted for admission to the M.B.B.S. Course in the States.
At the outset, we may dispose of an objection taken on behalf of the respondents.
It is pointed out that the petitioners in the writ petitions and the appellants in the civil appeals applied merely for 989 admission to the Medical Colleges of the home State and have not alleged anywhere that they applied for nomination to a seat in a Medical College outside the State.
It is urged that inasmuch as the scheme of nominations to Medical Colleges outside the State is distinct altogether from the scheme of admissions to Medical Colleges within the State the petitioners and the appellants are not entitled to question the validity of those nominations.
We are referred to Chitra Ghosh and Another vs Union of India and Others.(1) In the civil appeals before us, however, we find that some of the appellants did apply for nomination to a seat in a Medical College outside the State.
Besides, the Andhra Pradesh High Court has elaborately considered the question on its merits, and it seems desirable in the circumstances to pronounce our opinion on the controversy.
The objection is overruled.
For the purpose of these cases, we shall proceed on the assumption that national integration, which is undeniably in itself a highly commendable and laudable objective, will be effectively served by a policy encouraging the admission of candidates of one State to seats in the Medical Colleges of another State.
After considering the matter carefully, we confess, we are unable to subscribe to the view that the selection of candidates for that purpose must remain in the unlimited discretion and the uncontrolled choice of the State Government.
We think it beyond dispute that the exercise of all administrative power vested in public authority must be structured within a system of controls informed by both relevance and reason relevance in relation to the object which it seeks to serve, and reason in regard to the manner in which it attempts to do so.
Wherever the exercise of such power affects individual rights, there can be no greater assurance protecting its valid exercise than its governance by these twin tests.
A stream of case law radiating from the now well known decision of this Court in Maneka Gandhi vs Union of India(2) has laid down in clear terms that.
Article 14 of the Constitution is violated by powers and procedures which in themselves result in unfairness and arbitrariness.
It must be remembered that our entire constitutional system is founded in the Rule of Law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason.
To contend that 990 the choice of a candidate selected on the basis of his ability to project the culture and ethos of his home State must necessarily be left to unfettered discretion of executive authority is to deny a fundamental principle of our constitutional life.
We do not doubt that in the realm of administrative power the element of discretion may properly find place, where the statute or the nature of the power intends so.
But there is a well recognised distinction between an administrative power to be exercised within defined limits in the reasonable discretion of designated authority and the vesting of an absolute and uncontrolled power in such authority.
One is power controlled by law countenanced by the Constitution, the other falls outside the Constitution altogether.
Proceeding from there, it is evident that if the State Government desires to advance the objective of national integration it must adopt procedures which are reasonable and are related to the objective.
In this Age of Reason, all law must measure upto that standard, and necessarily so also must all executive acts.
Viewed in this context, the claim of the State Government in these cases that the nature of the objective and the means adopted to serve it entitle it legitimately to vest in itself an absolute power in choosing candidates for nomination cannot be allowed to prevail.
It is incumbent on the State Government to adopt a criterion or restrict its power by reference to norms which, while designed to achieve its object, nevertheless confine the flow of that power within constitutional limits.
We are not convinced that an adequate system of standards cannot be devised for that purpose.
Tested on the touchstone of our constitutional values, the claim of the State Government to the content of the power assumed by it must, in our opinion, be declared invalid.
Now, the selection of an appropriate procedure lies ordinarily within the domain of administrative policy, and when the objective can be fulfilled by more than one constitutionally valid method, the selection must be left to administrative choice.
The Courts are generally concerned merely with the legal validity of the choice made.
We think it desirable, therefore, to leave it to the Medical Council of India to formulate a proper constitutional basis for determining the selection of candidates for nomination to seats in Medical Colleges outside the State.
The problem is one which needs to be tackled at the national level, having regard to the objective which is sought to be achieved and to the circumstance that it calls for reciprocal arrangements between Medical Colleges throughout the 991 country.
Until a policy is so formulated and adopted and concrete criteria are embodied in the procedure to be selected, we direct that nominations be made by following the procedure of selecting candidates strictly on the basis of merit, the candidates nominated being those, in order of merit, immediately next below the candidates selected for admission to the Medical Colleges of the home State.
Before concluding it is desirable to advert to the contention raised on behalf of the respondents that as the State Government finances medical education within the State it is entitled to exercise an absolute discretion in the nomination of candidates to seats in Medical Colleges outside the State, specially when the nomination is part of a reciprocal arrangement between the different States.
In our opinion, the contention cannot be regarded as valid in view of what has been laid down now by this Court in Ramana Dayaram Shetty vs The International Airport Authority of India and Ors.(1) Considerable and vehement argument has been addressed on behalf of the petitioners and the appellants that we should make an order revoking the nominations already made by the Jammu and Kashmir Government and the Andhra Pradesh Government.
We do not propose to do so.
The State Government proceeded in the bona fide belief that the procedure adopted by it was just and proper, the basis being one which appears to have been uniformly adopted by all the participating States.
Besides, the candidates nominated have already covered a substantial part of their course of studies.
These considerations considered cumulatively dissuade us from interfering with the nominations already made.
In the result, we allow the writ petitions and the civil appeals insofar that the principle adopted by the State Governments of nominating candidates in their absolute and unfettered choice to seats in Medical Colleges outside the State is declared invalid.
The Medical Council of India is directed to formulate a proper constitutional basis for determining the selection of candidates for nomination to seats in Medical Colleges outside the State in the light of the observations contained in this judgment.
Until a policy is so formulated and concrete criteria are embodied in the procedure selected, the nominations shall be made by selecting candidates strictly on the basis of merit, the candidates nominated being those, 992 in order of merit, immediately below the candidates selected for admission to the Medical Colleges of the home State.
The judgment dated December 31, 1982 of the Andhra Pradesh High Court is modified accordingly.
In the circumstances of these cases, we make no order as to costs.
A copy of this judgment and order shall be sent to the Medical Council of India.
H.S.K. Appeals & Petition partly allowed.

summary:
With a view to encourage national integration, a few States including respondent states agreed upon an arrangement by which a certain percentage of the seats in medical colleges was reserved for candidates from other States on a reciprocal basis.
In the year 1982 83 the respondent States made some nominations under the above arrangement.
The validity of these nominations was challenged in these writ petitions and civil appeals on the ground, inter alia, that these nominations had been made by the State Governments in their absolute and arbitrary discretion, without reference to any objective criterion, or any controlling norms or guidelines.
Partly allowing the writ petitions and the appeals, ^ HELD: The principle adopted by the State Governments of nominating candidates in their absolute and unfettered choice to seats in Medical Colleges outside the State is invalid.
But the nominations already made will not be affected.
[991 F G; E] The exercise of all administrative power vested in public authority must be structured within a system of controls informed by both relevance and reason relevance in relation to the object which it seeks to serve, and reason in regard to the manner in which attempts to do so.
article 14 of the Constitution is violated by powers and procedures which in themselves result in unfairness and asbitrariness.
There is no doubt that in the realm of administrative power the element of discretion may properly, find place, where the statute or the nature of the power intends so.
But there is a well recognised distinction between an administrative power to be exercised within defined limits in the reasonable discretion of designated authority and the vesting of an absolute and uncontrolled power in such authority.
One is power controlled by law countenanced by the Constitution, the other falls outside the Constitution altogether.
Proceeding from there, it is evident that if the State 986 Government desires to advance the objective of national integration it must adopt procedures which are reasonable and are related to the objective.
In this Age of Reason, all law must measure upto that standard, and necessarily so also must all executive acts.
[989 E F; 989 G; 990 A D] In the present cases, viewed in this context and tested on the touchstone of our constitutional values, the claim of the State Government that the nature of the objective and the means adopted to serve it entitle it legitimately to vest in itself an absolute power in choosing candidates for nomination is to deny a fundamental principle of our constitutional life and cannot be allowed to prevail.
[990 D E] Chitra Ghosh and Anr.
vs Union of India and Ors.
, ; , 420; Maneka Gandhi vs Union of India, [1978] 2 S.C.R. 621; and Ramana Dayaram Shetty vs The International Airport Authority of India & Ors., , referred to.
The Medical Council of India is directed to formulate a proper constitutional basis for determining the selection of candidates for nomination to seats in Medical Colleges outside the State in the light of the observations contained in this judgment.
Until a policy is so formulated and concrete criteria are embodied in the procedure selected, the nominations shall be made by selecting candidates strictly on the basis of merit, the candidates nominated being those, in order of merit, immediately below the candidates selected for admission to the Medical Colleges of the home State.
[991 G H; 992 A]