judgement:
N: Criminal Appeal No. 350 of 1978.
(From the Judgment and order dt. 29 5 78 of the Gujarat High Court in Spl.
Criminal Appln.
No. 20 of 1978) Ram Jethmalani and Mrs. K. Hingorani for the appellant.
section K. Mehta and M. N. Shroff for the respondent.
The Judgment of the Court was delivered by TULZAPURKAR, J.
On September 29, 1978 the detenu herein was directed to be released forthwith on his detention order being set aside and we had stated that we would give our reasons for our order later which we do presently.
217 By a detention order passed on January 4, 1978 under section 3(1) of the (hereinafter referred to as "COFEPOSA") the detenu Gopal Ghermal Mehta was detained by the Additional Chief Secretary to the Government of Gujarat (Respondent No. 1) with a view to preventing him from engaging in transporting smuggled goods.
The grounds of detention were served upon him on the same day i.e. On January 4, 1978.
Briefly stated the grounds disclosed the following material against the detenu: on receipt of certain information on December 12, 1977 by the Customs officers of Ahmedabad, the said officers had kept a watch for a Fiat Car No. GTI 6020 and the said car with five occupants was intercepted in the early hours of December 13, 1977 near Naroda Railway Crossing and the occupants (the detenu and four others) were taken to the Customs Divisional Office, Paldi, Ahmedabad for examination.
The detenu and the other four occupants of the car denied that they were carrying any smuggled gold or prohibited articles, but on search of one of the occupants Sheveram Atmaram Chandwani two cloth bags were recovered D, from him, in one of which there were 27 gold bars of foreign marking weighing 19 tolas valued at Rs. 2,16,00 and in the other there were 18 pieces of gold bearing 'Trishul ' mark valued at Rs. 1,94,400/ .
Chandwani in his statement before the Customs officers stated that the two bags which he was carrying on his person belonged to the detenu who was dealing in Silver and Gold in Udaipur and that he was merely a carrier who used to receive remuneration of Rs. 100/ per trip from the detenu.
Two statements of the detenu were recorded by the Customs officers on December 13 and 14, 197$, in which he corroborated the version of Chandwani but added that the entire quantity of foreign marked gold and the 'Trishul ' marked gold belonged to one Prem of Chandni Chowk, Delhi, for and on whose behalf he was carrying the gold from Delhi to Udaipur and from Udaipur to Ahmedabad for disposing it of to two persons, Namely, Poonamchand Laxmanji and Bhagubhai in Ahmedabad.
The detenu also stated that this had been going on for about six to eight months and that he had made five to six trips in a month and on each such trip he used to carry 2 1/2 to 3 kgs.
of gold.
He further admitted that the Fiat Car in question had been purchased for this purpose for Rs. 15,000/ which money had been provided by Prem.
He further stated that after disposal of the gold belonging to Prem at Ahmedabad he used to carry the sale proceeds to Prem and account for the same at the time of the next transaction between him and Prem.
Counsel for the petitioner (being the wife of the detenu) did not dispute that the aforesaid material disclosed in the grounds was 15 817SCI/78 218 prima facie sufficient to show the detenu 's involvement in the racket of smuggling gold, namely, transporting smuggled gold from Delhi to Udaipur and from Udaipur to Ahmedabad but he challenged the detention order on the ground that procedural safeguards had not been followed vitiating the requisite satisfaction on the part of the detaining authority under section 4(1).
It appears that when the interrogation of the detenu was going on while he was in custody of the Customs officials, Smt.
Devyantiben Shah, an Advocate of the detenu addressed a letter as also a telegram, both dated December 14, 1977, making a grievance about the wrongful restraint and illegal custody of the detenu by the Customs officers beyond 24 hours and expressing apprehension that .
the detenu had been so detained with a view to obtain confessional statements against his will.
The receipt of the letter was disputed but the Assistant Collector of Customs admitted the receipt of the telegram from the Advocate on December 15, 1977.
By his reply dated December 15, 1977 sent to the Advocate, the Assistant Collector denied the allegations made in the telegram.
Admittedly on December 14, 1977, the Advocate had gone to the Customs office and had sought permission to remain present at the time of the interrogation of the detenu but her request was not acceded to as the Customs Officers were of the view that there was no provision in law permitting an Advocate to remain present at the time of interrogation.
Further on this occasion the Advocate was told that the detenu will be produced before the Magistrate at 5.30 p.m.
On that very day and, therefore, she waited in the Magistrate 's Court upto 5.30 p.m. to obtain bail for the detenu but as the detenu was not produced the Magistrate declined to pass any order on the bail application.
On December 15, 1977 the detenu was produced before the Magistrate who remanded him to Customs custody for five days in spite of opposition by the Advocate.
On December 20, 1977 the detenu was again produced before the Magistrate and even on this occasion bail was refused but the detenu was remanded to judicial custody permitting further interrogation by Customs Officers.
On December 22, 1977 while he was in judicial custody the detenu was interrogated by Customs officers and his statement was recorded on that day but the detenu refused to sign the same and instead made an endorsement that his earlier statements dated December 13 and 14, 1977 and the facts stated therein were not correct.
In other words, in his statement dated December 22, 1977 the detenu had resiled from his earlier confessional statements and had squarely repudiated the facts stated therein.
On January 3, 1978 the Advocate of the detenu made another application for getting him released on bail as the period of remand was to expire on January 1978 and that application was fixed for hearing on January 6, 1978 but on January 4, 1978 itself while the 219 detenu was in judicial custody the Additional Chief Secretary to the Gujarat Government (Respondent No. 1) passed the impugned order under s.3(1) of the "COFEPOSA" and the detenu was detained thereunder.
The aforesaid detention was challenged by the appellant (wife of the detenu) before the Gujarat High Court under Article 226 of the Constitution by filing Special Criminal Application No. 20 of 1978 seeking a writ of habeas corpus for the release of the detenu principally on the ground that there was complete non application of mind on the part of the detaining authority (respondent No. 1) to the attendant circumstances in which the confessional statement of the detenu on which the detention order was mainly based were recorded, particularly the vital facts that transpired during the interrogation as also those that followed the recording of those statements.
It was contended that apart from the apprehension expressed in the Advocate 's telegram that the detenu was being detained with a view to obtain his confessional statements under duress, the said confessional statements had actually been retracted by the detenu at the first available opportunity when he was in judicial custody on the ground that these had been involuntarily extorted from him and that such retraction of the confessional statements was not intimated to the detaining authority and was not considered by it before passing the impugned detention order and as such for want of considering such vital fact the subjective satisfaction of the detaining authority got vitiated and the impugned order was liable to be set aside.
The High Court, however, rejected the said contention as also the other contentions urged on behalf of the appellant (the wife of the detenu) and dismissed the said application on May 29, 1978.
Against this dismissal the present appeal has been preferred.
Counsel for the petitioner contended before us that the High Court had clearly erred in taking the view that since the contents of the telegram dated December 14, 1977 expressing the apprehension had been made known to the detaining authority it could not be said that this material aspect of the case had been kept back from the detaining authority.
It was pointed out that the mere expression of an apprehension that confessional statements might be extorted was different from the actual obtaining of the statements under pressure of which a complaint had been made by the detenu in his statement recorded on December 22, 1977 wherein the earlier statements had been completely retracted and it was urged that the fact that there was such retraction of the confessional statements by the detenu at the first 220 available opportunity was not communicated or placed before the detaining authority when it considered the question of passing the impugned order.
Counsel further contended that instead of considering whether these facts were vital enough to require the application of mind by the detaining authority, the High Court went on to record findings of fact, to the effect (i) that it could not be said that the detenu was in illegal custody: (ii) that the confessional statements could not have been extracted under compulsion and (iii) that the said statements were not obtained under duress and in doing so the High Court clearly acted in excess of jurisdiction and contrary to the well established principles applicable to the issue of habeas corpus in preventive detention case.
In any case it was for the detaining authority to apply its mind to these aspects before deciding to issue the impugned order.
Counsel further contended that it was undisputed that the Advocate was not allowed to be present nor allowed to be consulted during the interrogation in spite of request having been made in that behalf which clearly showed that the detenu was under duress and not a free person.
In any event, counsel contended, the satisfaction of the detaining authority must be regarded as vitiated inasmuch as these vital facts, namely, (i) that during interrogation in spite of request neither the presence nor the consultation of the Advocate was permitted; (ii) that in spite of intimation to the Advocate in that behalf the detenu was not produced before the Magistrate at 5.30 p.m.
On December 14, 1977 and (iii) that the confessional statements had been squarely retracted by the detenu on December 22, 1977 at the first available opportunity while he was in judicial custody all of which had a material bearing and would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority before passing the detention order on January 4, 1978 and, therefore, the impugned order was liable to be set aside.
We find considerable force in these contentions urged by counsel for the appellant before us.
It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order.
In Sk.
Nizamuddin vs State of West Bengal(1) the order o`f detention was made on September 10, 197 under s.3(2) (a) of MISA based on the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with (1) ; 221 a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community and his subjective satisfaction, according to the ground of detention furnished to the petitioner, was founded on a solitary incident of theft of aluminium wire alleged to have been committed by the petitioner on April 14, 1973.
In respect of this incident of theft a criminal case was filed inter alia against the petitioner in the Court of the Sub Divisional Magistrate Asansol, but the criminal case was ultimately dropped as witnesses were not willing to come forward to give evidence for fear of danger W their life and the petitioner was discharged.
It appeared clear on record that the history sheet of the petitioner which was before the District Magistrate when he made the order of detention did not make any reference to the criminal case launched against tho petitioner, much less to the fact that the prosecution had been dropped or the date when the petitioner was discharged from that case.
ID connection with this aspect this Court observed as follows: "We should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate.
That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention.
It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preventive detention should be resorted to.
It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate.
" It is true that the detention order in that case was ultimately set aside on other grounds but the observations are quite significant.
These observations were approved by this Court in Suresh Mahato vs The District Magistrate, Burdwan and others(1).
The principle that could be clearly deduced from the above observations is that if material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal.
After all the detaining authority must exercise (1) A.I.R. 1975 S.C. 728.
222 Due care and caution and act fairly and justly in exercising the power of detention and if taking into account matters extraneous to the scope and purpose of the statute vitiates the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to influence the mind of the authority one way or the other would equally vitiate the subjective satisfaction and invalidate the detention order.
In the instant case admittedly three facts were not communicated to or placed before the detaining authority before it passed the impugned order against the detenu, namely, (i) that during interrogation of the detenu, in spite of request neither the presence nor the consultation of the Advocate was permitted; (ii) that in spite of intimation to the Advocate in that behalf the detenu was not produced before the Magistrate on December 14, 1977 and (iii) that the confessional statements were squarely retracted by the detenu on December 22, 1977 at the first available opportunity while he was in judicial custody; the first two had a bearing on the question whether the confessional statements had been extorted under duress from the detenu or not, while the third obviously was in relation to the confessional statements which formed the main foundation of the impugned order and such were vital facts having & bearing on the main issue before the detaining authority.
As regards the first this Court in Nandini Satpathy 's(1) case has observed in para 63 of the judgment thus: "Lawyer 's presence is a constitutional claim in some circumstances in our country also, and, in the context of Article 20(3), is an assurance of awareness and observance of the right to silence.
The Miranda decision has insisted that if an accused person asks for lawyer 's assistance, at the stage of interrogation, it shall be granted before commencing or continuing with the questioning.
We think that Article 20(3) and Article 22(1) may, in a way, be telescoped by making it prudent for the police to permit the advocate of the accused, if there be one, to be present at the time he is examined.
Overreaching Article 20(3) and Section 16(2) will be obviated by this requirement.
We do not lay down that the police must secure the services of a lawyer.
That will Lead to 'police station lawyer ' system, an abuse which breeds other vices.
But all that we mean is that if an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied, without being exposed to the serious reproof that involuntary self crimination secured in secrecy and by coercing the will, was the project." (1)[978] 2 S.C.C.424.
223 In this case the request to have the presence/consultation of a lawyer was turned down owing to some misconception of the legal position but that apart, the fact that such a request was made and refused ought to have been intimated to the detaining authority.
Further, in passing the detention order the detaining authority obviously based its decision on the detenu 's confessional statement of December 13 and 14, 1977 and, therefore, it was obligatory upon the Customs officers to report the retraction of those statements by the detenu on December 22, 1977 to the detaining authority, for, it cannot be disputed that the fact of retraction would have its own impact one way or the other on the detaining authority before making up its mind whether or not to issue the impugned order of detention.
Questions whether the confessional statements recorded on December 13 and 14, 1977 were voluntary statements or were statements which were obtained from the detenu under duress or whether the subsequent retraction of those statements by the detenu on December 22, 1977 was in the nature of an after thought, were primarily for the detaining authority to consider before deciding to issue the impugned detention order but since admittedly the aforesaid vital facts which would have influenced the mind of the detaining authority one way or the other were neither placed before nor considered by the detaining authority it must be held that there was non application of mind to the most material and vital facts vitiating the requisite satisfaction of the detaining authority thereby rendering the impugned detention order invalid and illegal.
For these reasons we set aside the impugned detention order.
P.B.R. Appeal allowed.

summary:
A detention order, under section 3(1) of the , was passed by the respondent against the detenu (appellant 's husband) with a view to prevent him from engaging in transporting smuggled gold.
When the detenu was in the custody of the Customs officers, his advocate addressed a letter and sent a telegram to them protesting against his detention and illegal custody beyond 24 hours and also expressing an apprehension that he was being detained with a view to obtain confessional statements under duress.
It was admitted that the advocate 's request for permission to remain present at the time of interrogation of the detenu was turned down by the Customs officers.
The advocate was also told that the detenu would be produced before a Magistrate at 5.30 p.m.
On the day of her request.
But that was not done.
He was produced on the following day and was remanded to judicial custody permitting further interrogation by the Customs officers.
During such interrogation while in judicial custody, the detenu refused to sign the further statements and squarely resiled from his earlier confessional statements disowning the facts therein stated.
While the detenu 's application for bail was pending before the Magistrate, the respondent passed the impugned order.
In her petition under article 226 of the Constitution for the issue of a writ of habeas corpus the appellant contended that the order of the detaining authority was liable to be set aside because full facts of the case were not intimated to it before detention order was passed and, therefore, there was complete non application of mind of the detaining authority to the attendant vital circumstances.
The High Court dismissed the petition.
Allowing the appeal, ^ HELD: (1) The impugned order was invalid and illegal because there was complete non application of the mind of the detaining authority to the most material and vital facts which would have influenced the mind of The detaining authority one way or the other as these were neither placed before it nor considered by the detaining authority.
[223E] (2) It is well settled that if material or vital facts, which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not con 216 sidered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal.
The detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention and if taking into account matters extraneous to the scope and purpose of the statute vitiates the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to influence the mind of the authority one way or the other would equally vitiate t the subjective satisfaction and invalidate the detention order.
[222A B] In the instant case three facts were not communicated to or placed before the detaining authority before it passed the impugned order against the detenu viz., (i) during the interrogation, in spite of the request, neither the presence nor consultation of the advocate was permitted, (ii) in spite of intimation to the advocate by the Customs officers the detenu was not produced before the Magistrate at the appointed time and (iii) the confessional statements were squarely retracted by the detenu at the first available opportunity while he was in judicial custody.
The first two had a bearing on the question whether the confessional statements had been extorted under duress from the detenu or not.
while the third was in relation to the confessional statements which formed the foundation of the impugned order and as such were vital facts having a bearing on the main issue before the detaining authority.
Nizamuddin vs State of West Bengal ; ; Suresh Mahato vs The District Magistrate, Burdwan & Ors.
AIR 1975 SC 728; Nandini Satpathy vs The State of Orissa ; ; applied.
(3) The fact that the request to have the presence or consultation of the h lawyer was made and refused ought to have been intimated to the detaining authority.
Further in passing the detention order the detaining authority based its decision on the detenu 's confessional statements and, therefore, it was obligatory upon the Customs officers to report to the detaining authority the retraction of those statements by the detenu.
In fact of retraction would have its own impact one way or the other on the detaining authority before making up its mind whether or not to issue the impugned order of detention.
[223A B]


judgement:
Civil Appeal No. 1836 of 1978.
From the Judgment and Order dated 27 5 1963 of the Punjab and Haryana High Court in Letters Patent Appeal No. 273/61.
Appellant in Person R. section Sodhi and Hardev Singh for Respondent No. 1.
Govind Das, Badri Das Sharma and R. N. Sachthey for Respondent Nos. 2 and 3.
The Judgment of the Court was delivered by SHINGHAL J.
This case for rehearing the appeal has come up before us in these circumstances.
Appellant K. N. Bahl was B.Sc.
(Agriculture) when he was appointed Overseer, Government Archaeological Gardens in Lahore, in 1935.
After the partition of the Country, he was employed as Subdivisional Officer (Horticulture) P.W.D.B.&R. (Development) by the Government of East Punjab.
He was selected for appointment as Assistant Superintendent of Archaeological Gardens in Delhi by the Union Public Service Commission and took up that appointment in 1950 with the concurrence of the East Punjab Government.
While serving on that post, he went to U.S.A. for further studies in Harvard and Cornell Universities in 1951.
While he was still there, the Punjab Government issued an advertisement, in 1952, inviting applications for the post of Landscape Architect, Capital Project, Chandigarh, in the scale of Rs. 625 1275.
He applied for the post, and was appointed as Landscape Architect on a temporary basis by an order dated May 24, 1952.
He returned after graduating M.Sc.
(Cornell) and becoming an Associate of the Institute of Landscape Architects, England, in 1953.
The Punjab Government issued an order fixing his pay at Rs. 825/ .
The Government of India requested the Punjab Government by a telegram dated May 30, 1953, for a short extension in the time allowed to Bahl to join as Landscape Architect, Chandigarh.
He was relieved by the Government of India on June 27, 1953, and reported for duty at Chandigarh on June 30, 1953.
He was however not allowed to join as the Chief Engineer took the stand that he was not in possession of the order of his appointment.
The State Government in fact appears to have taken the view that as Bahl had 1092 failed to join the Capital Project by June 1, 1953, the post had been filled by another candidate and the offer of appointment to him stood cancelled on May 30, 1953.
The Punjab Government appointed Harinder Singh Dhinsa as Landscape Architect by its order dated July 16, 1953.
Even though the Government of India sent a letter on August 8, 1953, explaining the delay in relieving Bahl and pointing out that it was not due to his fault, he was not allowed to join.
The Punjab Government wrote back in reply that the offer stood cancelled on May 30, 1953, and could not be revived.
Bahl therefore rejoined the Government of India on September 30, 1953.
It so happened that the Punjab Government once again advertised the post of Landscape Architect in 1954 stating that it was a temporary post but was likely to continue after February 28, 1955, and the period of probation would be six months in case of persons already in Government service and one year for direct recruits.
The Public Service Commission selected Bahl for the post and recommended a starting pay of Rs. 825/ in its letter dated July 13, 1954.
The State Government was requested to send special assessment Reports on the amount and quality of Bahl 's work in accordance with the earlier instructions.
Accordingly, a letter of his temporary appointment as Landscape Architect on a starting pay of Rs. 825/ was issued by the State Government on October 21, 1954, requesting the Government of India to relieve him immediately.
Bahl joined that post, and a notification was issued in the State Gazette dated November 23, 1954, intimating that he had taken over charge as Landscape Architect and Sub divisional Officer (Horticulture Subdivision) on November 6, 1954.
The probationary period of six months expired on May 5, 1955, but no action was taken about Bahl 's confirmation.
On the other hand, his period of probation was extended upto June 14, 1957.
Bahl 's representations for confirmation went unheeded.
It has been specifically stated in paragraph 13 of the writ petition that there was "further extension of the post upto February 28, 1958 and the end of March, 1958 and after that the post was extended monthly but the petitioner was not paid after May, 1958, although the post had been extended upto November, 1958.
" Soon after taking over charge on November 6, 1954, Bahl examined the statement of the sanctioned work for which liabilities were being incurred without sanction or estimates, and made a report thereof to the Executive Engineer on December 3, 1954.
He followed that up by another letter dated December 17, 1954, pointing out how 1093 those liabilities were incurred under verbal orders and even without authority involving "large liability".
He endorsed a copy of that letter to the Superintending Engineer, Capital Project Circle, for requesting the Financial Adviser to ask an Assistant Accounts Officer to cheek the statement of unsanctioned work for the month of November, 1954.
He himself addressed a letter to the Superintendent, Checking Party, Office of the Chief Accounts Officer, Capital Project, pointing out the irregularities.
Check was therefore taken up, and an interim report was sent on March 23, 1955.
It was stated in the report that an expenditure of Rs. 3,49,000/ was unauthorised as none of the estimated amount had been technically sanctioned or administratively approved.
The Finance Secretary also took up the matter on April 19, 1955, and asked the Chief Engineer to investigate into the serious irregularities and to tighten up the procedure in order to stop the leakage or waste of public money.
Another letter was issued on April 19, 1955, by way of reminder, which contained a suggestion for vesting the Landscape Architect with powers of Sub divisional Officer in his field of work.
The Finance Secretary also addressed a letter dated September 7, 1955, suggesting the delegation of some executive powers to the Landscape Architect and providing him with the necessary staff so that he could take charge of the Horticulture sub division.
The Accountant General sent a letter to the State Government on September 9, 1955, for sanctioning either an extension in the probationary period, or the confirmation of Bahl.
He followed that up by another letter dated May 15, 1956, by way of a reminder.
Bahl has placed reliance on a note dated September 5, 1957 to show that the Secretary P.W.D. (B.&R.) had recommended his confirmation on the temporary post of Landscape Architect "which was sanctioned till 28 2 57," and that the Public Works Minister had agreed to it but had inquired the date from which the confirmation was to take effect.
The case was however not submitted to him till November 15, 1956 when the Chief Engineer wrote that there was no necessity for the post and Bahl may be served with three months ' notice and reverted to the Agriculture Department.
One section Vohra took over as Secretary, Capital Project.
In his note dated September 5, 1957, he referred to the Chief Engineer 's earlier suggestion that Bahl 's work may be watched during the extended period of six months probation upto June 14, 1957 "as a last chance." By then the Superintending Engineer had written to the Chief Engineer that he was not impressed by Bahl 's behaviour towards his colleagues and he was not "needed for the post of Landscape Architect as the work is being done by AA/SA or for execution of Landscape plans, in view of the 1094 defects of character that have repeatedly come to notice." The Secretary recommended that Bahl 's services should be terminated and he may be sent back to his parent department.
He suggested that that could be done by abolishing the post of Landscape Architect and that as Bahl was likely to get much lesser pay there, that matter could be taken up separately with the Agriculture Department.
It appears that the Estimates Committee of the Vidhan Sabha recorded a statement of Bahl on September 25, 1957, to the effect that proper thought had not been given to plantation of trees before he took over.
Reference was made in the statement to H. section Randhawa, Chairman of the Landscape Committee, and it was stated that while he might have knowledge of trees, that did not mean that he was an expert in landscaping.
Some adverse entries were made about Bahl 's work, and he made a representation to the Chief Minister for expunging them on November 5, 1957.
He specifically stated there that he had already submitted his application for appointment under the Government of India, and the Union Public Service Commission was likely to have his personal file in that connection.
For that reason he asked for early action to expunge the remarks.
The Minister concerned recorded a minute on February 11, 1958, saying that he had carefully considered the representation of Bahl and pointing out that the previous two Ministers had given him good reports.
He therefore recommended to the Chief Minister that the adverse entries made against Bahl should be expunged and he should be confirmed on completion of his period of probation.
The Chief Minister recorded his minute dated February 13, 1958, agreeing with the Minister but suggested that he may arrange to assign the requisite staff to the Landscape Architect so that his services may be fully utilised in the preparation and execution of landscape plans.
Orders were issued on April 3, 1958, expunging the adverse remarks against Bahl for the period April 1, 1955 to November 20, 1956, and December 15, 1956 to March 31, 1957.
That was followed by a minute of the Minister dated August 5, 1958, referring to his earlier note dated July 8, 1958 for confirmation of Bahl and asking for the file.
He recorded another minute on August 18, 1958, to the effect that the post of Landscape Architect was most essential and stating that Government had ordered Bahl 's confirmation and provision for staff to him.
It was stated further that order of the Government had still to be implemented.
Bahl has invited our attention to the Chief Engineer 's draft for the abolition of the post of Landscape Architect, which he sent to Randhawa on September 20, 1958, and to the note of the Secretary dated October 16, 1958, that the Committee had come to the conclusion that the post of Landscape Architect may be abolished with immediate effect.
The 1095 Committee had met under the chairmanship of the Minister and he recorded his sanction to that proposal on October 19, 1958.
The Secretary prepared a note on October 22, 1958, accordingly, stating that Bahl should be reverted to his parent department.
He also recommended that the earlier decision to expunge the adverse entries from Bahl 's service record should be reviewed and those entries allowed to stand.
The Minister agreed with that recommendation on October 24/28, 1958.
The Chief Minister passed an order on October 29, 1958, that it would not look proper to modify the orders already passed by the previous Minister about expunging the remarks with which he had agreed.
He however agreed to Bahl 's reversion to his parent department with immediate effect.
Orders were accordingly issued for his reversion, and it is not in dispute that he stood reverted on November 4, 1958, to the Agriculture Department.
Bahl felt aggrieved and filed a writ petition in the Punjab High Court on May 27, 1959.
It was traversed by the State Government, and a learned Single Judge of the High Court dismissed it on September 7, 1961, leaving the parties to bear their own costs.
Bahl preferred an appeal, but it was dismissed by the High Court on May 27, 1963.
A certificate was however issued by the High Court for appeal to this Court.
It was heard by a Bench of three judges and was dismissed on February 2, 1972.
Bahl filed an application for review of that judgment but it was dismissed on April 16, 1973.
He filed another review petition and it was dismissed on July 29,1974.
It was restored by this Court 's order dated September 30,1974, and a notice was issued to the respondent to show cause why the review petition should not be granted.
The matter was then taken up on October 27, 1975, when the Court allowed the review petition and directed that appeal to be listed for hearing.
It is in these circumstances that this appeal has come up for hearing once again.
The arguments which have been advanced by the appellant relate to mala fides, and it will be desirable to refer to the allegation in that respect in the writ petition.
He has alleged that "by his good and honest work" he had incurred the "displeasure of his senior officers who from the very beginning were averse to his being brought over as Landscape Architect." He has further alleged that "his senior officers were not happy with him" and the order for the abolition of the post of Landscape Architect was passed and he was reverted to his parent department "mala fide, the result of inordinate hostility of the High Officers of the respondent who had not taken kindly to the petitioner, and who did not like that the petitioner should hold the post of Landscape Architect.
" This has been reiterated by alleging that the post was 1096 abolished "solely by the desire to remove the petitioner".
It would thus appear that the allegations regarding mala fides or bad faith were quite vague and indefinite, and did not contain any such detail as could enable the other party to answer them adequately.
Even so, we have examined the arguments of the appellant with reference to the evidence on the record.
It has been argued that although the appellant was appointed as Landscape Architect on a temporary basis in the Capital Project, Punjab, on May 24, 1952, he was not allowed to join that post when he reported for duty at Chandigarh on June 30, 1953, and had to rejoin his post with the Government of India on September 30, 1953.
This has been cited by the appellant as the first and the clearest instance of bad faith on the part of the State Government, and he has tried to trace his subsequent misfortune from that initial episode.
We have gone through the order of appointment dated May 24, 1952, and we find that it was categorically stated in paragraph 4 that if the appellant found the terms of his appointment acceptable, he should report for duty to the Senior Architect, Capital Project, Simla, 'not latter than June 30, 1952.
" That was reiterated in the subsequent letter of June 28, 1952.
But as will appear from the reply of the respondents, the appellant did not join the post on the appointed date and asked for extension of the joining time.
That was allowed upto November, 1952, but the appellant returned to India only in January 1953.
He did not care to join his post and raised the question of higher pay.
He was allowed further extension in the joining time upto May 21, 1953, with the clear stipulation that if he did not do so his appointment would be considered as canceled.
He did not join even then, and again raised the question of higher pay.
The State Government could not therefore be blamed if it took the view that the offer of appointment was not open to him when he wanted to take over charge on June 30, 1953, after a lapse of one year from the date of the appointment, and appointed H. section Dhinse as Landscape Architect.
An attempt has been made to argue that Dhinse was a favorite of the Government and that was the motive for preventing the appellant from joining the post, but that is easily disproved by the further fact that the Government displaced H. section Dhinse and asked the Public Service Commission soon after, on April 22, 1954, to recruit a suitable officer for the post.
Nothing could therefore possibly turn on the appellant 's discomfiture in missing the first appointment for, as has been shown, he himself was to blame for it.
It has next been argued that after the appellant was selected for appointment as Landscape Architect by the Public Service Commission and took charge on November 6, 1954, the post was abolished 1097 prematurely, out of malice, simply because the authorities concerned wanted to terminate his services somehow.
The appellant tried to contend that the post of Landscape Architect was meant to continue even after November, 1958 because of the provision in the budget estimates for the year 1958 59.
The contention is futile because the appellant has himself admitted in paragraph 13 of the writ petition that the post was extended upto February 28, 1958 and the end of March, 1958 and "after that the post was extended monthly.
" It has further been stated that the extension continued upto November 4, 1958.
There is therefore no force in the argument that the post was abolished prematurely for, as has been held by the High Court, it was merely allowed to lapse on the expiry of its extended term on November 4, 1958.
The appellant has tried to argue that the abolition of the post was a device to remove him and to punish him, and he has tried to support his argument by a reference to this Court 's decision in State of Haryana vs Des Raj Sanger and another (1) with the further contention that the abolition was without reason or justification.
The Punjab Government has dealt with this point in paragraphs 15 17 of its reply and has referred to the appellant 's inability to get alongwith his subordinates and colleagues as well as with the senior officers, and his habit of proceeding on leave without prior sanction during the plantation season.
Reference has also been made to the fact that his post was temporary all through.
It has been pointed out that the question of the continuation of the post was referred to a Special Committee consisting of the Minister of Public Works, M. section Randhawa and Saroop Krishna, Secretary to the Government (Capital Project).
It has been stated that the Committee arrived at the conclusion that the post of Landscape Architect was no longer necessary and decided to abolish it for that reason.
The matter was in fact referred to the Cadre Committee which also made a similar recommendation.
The order abolishing the post is on the record, and it shows that the reason for abolishing the post was that almost all the plans which were needed for the project had been prepared and the Chief Engineers ' organisation could have no difficulty in carrying on the outstanding work of only Rs. 1.66 lakhs.
It cannot therefore be said that the post was abolished without reason or justification, with the intention of getting rid of the appellant somehow and the appellant cannot find any support from the decision in Des Raj Sanger 's case (supra).
1098 An ancillary argument has been raised that the abolition of the post was in violation of the Rules of Business of the State Government according to which a post carrying a salary of Rs. 800/ per mensem or more could be abolished only by the Council of Ministers.
While examining the argument, the trial court took notice of the fact that it was not raised in the writ petition, and examined the relevant government files for satisfying itself that the final order was passed by the Minister concerned and the Chief Minister.
It has also to be remembered that this was not really a case of abolition of the post of Landscape Architect for, as has been stated, it was sanctioned upto November 4, 1958, and was allowed to lapse thereafter.
The appellant has tried to argue that his discontinuance on the post of Landscape Architect was due to personal reasons because the Chief Engineer and the Superintending Engineer were displeased with him for pointing out certain irregularities in incurring expenditure even though it was his duty to do so for he might otherwise have been held responsible for them.
We have made a reference to the developments that took place in this connection when the appellant sent a letter on December 17, 1954, reporting that certain references were untraceable and liabilities had been incurred under verbal orders or without authority involving considerable amounts and expressing his inability to submit the statements without examining the matter.
But that could not have created any hostility against him because a recommendation was all the same made for his confirmation by the Separately concerned as mentioned in the copy of the note dated September 5, 1957 filed by the appellant.
Moreover, while the controversy regarding the alleged unauthorised expenditure was raised on December 17, 1954, the decision to revert the appellant was taken after some four years on October 29, 1958, and we are not persuaded that there is any force in the argument that the appellant 's alleged exposure of irregularities in the expenditure led to an adverse decision against him after such a long time.
It is also significant that it is not the appellant 's case that any adverse remark was entered in his confidential report before April 1, 1956.
That would not have been so if the senior officers were against him and wanted to run him down because he had made an allegation regarding the irregularities in incurring the expenditure.
The appellant has in this connection invited our attention to his statement before the Estimates Committee of the Punjab Legislature in which he pointed out the defects in the earlier planning and management, with particular reference to M. section Randhawa who was Chairman of the Landscape Committee.
The appellant stated there 1099 that while Randhawa may have knowledge of trees, that did not mean that he was an expert in landscaping.
It has been urged before us that it was that statement which proved the appellant 's undoing, and he was thrown out by Randhawa 's influence.
There is however no force in this argument also because the adverse entries against him related to the period April 1, 1956 to April 23, 1956 and November 15, 1956 to March 31, 1957, whereas the Estimates Committee met in September, 1957.
The other argument that the Chief Engineer went to the extent of preparing the memorandum for the abolition of the post of Landscape Architect at the behest of Randhawa who was then Additional Secretary, Government of India, New Delhi, and was not serving the Punjab Government, and that it was sent for his approval on September 20, 1958 before circulation, is also of no consequence because he was, all the same, a member of the Capital Project Committee while serving the Government of India.
He was therefore directly concerned with the matter and there was nothing wrong in consulting him before sending the memorandum for circulation to the other officers concerned.
In fact, as has been stated, it came up for consideration before a Committee under the chairmanship of the Minister, and there is nothing on the record to show that there was bad faith on the part of the members of the Committee including M. section Randhawa in arriving at a decision on October 16, 1958, that the post shall be abolished.
Saroop Krishna was the Secretary concerned, and the appellant has not found it possible to urge anything against him.
He has also not found any fault with the Minister under whose chairmanship the Committee met and took the decision which proved the appellant 's undoing.
We are therefore unable to think that the decision was brought about by bad faith.
The appellant has argued further that the order abolishing the post of Landscape Architect was illegal as it denied him the benefit of three months ' notice for termination of his appointment in terms of paragraph 5 of the notification which was issued by the Public Service Commission inviting applications for the post.
Reference in this connection has been made to a Secretariat note dated September 5, 1957.
There is no force in this argument because no such term was specified in the letter of temporary appointment dated October 21, 1954.
Moreover it was specified in the notification of the Public Service Commission that the post was temporary upto February, 1955, but was likely to continue thereafter.
So if the term of the post was to expire on November 4, 1958, to the appellant 's knowledge, he could not possibly claim that he should have been given three months ' notice all the same as he was fully aware of his precarious tenure from month to month.
1100 The appellant has tried to argue that the post of Landscape Architect was not continued after November 4, 1958, because the Chief Engineer wanted to recruit Hardayal Singh Johal on that post later on.
It has been pointed out that it was for that purpose that the qualifications of the post were reduced to M.Sc.
(Agriculture) as Johal did not possess any higher qualification.
This argument is again futile because while the post of Landscape Architect was allowed to lapse on November 4, 1958 it has been admitted before us by the appellant that Hardayal Singh Johal assumed charge as Executive Engineer (Horticulture) in January, 1968.
The intervening period of 10 years is sufficient to show that there was no ulterior motive of the nature suggested by the appellant.
Then it has been argued that it was out of malice that confidential reports on the appellant 's work were obtained from R. N. Dogra, Principal, Punjab Engineering College, by a letter dated March 11, 1958 for the period April 1, 1955 to March 31, 1956, and a similar report was obtained from P. L. Verma by a letter dated April 9, 1958, for the period November 6, 1954 to March 31, 1955.
The argument is of no consequence because it is not unusual, or out of the way, for the department concerned to complete the record by asking for missing reports from officers who were in a position to supply them and had not retired.
At any rate, if it had been the intention to run down the appellant, R. N. Dogra or P. L. Verma would not have missed the opportunity of entering the adverse reports at the appropriate time.
It is also the grievance of the appellant that although he had become quite senior in his parent department (Agriculture), he was reverted to a non gazetted post in the scale of Rs. 100 300 which virtually amounted to the termination of his services.
It has further been argued that even if it had been decided to discontinue the post of Landscape Architect, there was no reason why he should not have been retained on the post of S.D.O. (Horticulture).
Here again, the argument loses sight of the fact that the order which the Chief Minister had made was that the appellant should be reverted to his parent department, and if the appellant had cared to join, there, it would have been open to him to make a representation for his appointment on a proper post with due regard to his seniority and service record.
If he did not do so, and stayed away from his parent department, it is not open to him to argue that he was not given a proper post there.
While doing so the appellant could lay a claim to the post of S.D.O. (Horticulture) if it belonged to his parent department, and if that was 1101 not so, there could be no justification for his asking for appointment to that post.
Considerable reliance has been placed by the appellant on the Chief Minister 's minute dated February 1, 1958, on the Minister 's recommendation dated February 11, 1958.
The Minister stated in his minute that he considered that the "adverse entries made against him (Bahl) should be expunged and he should be confirmed on the completion of his probation." That led to the following order of the Chief Minister dated February 13, 1958, "I agree with R. M. but he may kindly arrange to assign requisite staff to the Landscape Architect so that his services may be fully utilised by the Capital Project Administration in the preparation and execution of Landscape Plans.
" The appellant could justifiably argue that what the Chief Minister had agreed to was not only the expunction of the adverse entries, but also the Minister 's proposal for his confirmation, and that an order should have been issued accordingly.
But the fact remains that order was not issued for his confirmation and, on the other hand, when the Minister concerned sent the case back to the Chief Minister on October 24/28, 1958, with the proposal to review the earlier decision for expunction of the adverse entries, and to abolish the post of Landscape Architect and to revert the appellant to his parent department, the Chief Minister passed the following order on October 29, 1958, "It would not look proper to modify the orders already passed by the previous Minister about expunging of the remarks, and agreed to by me.
I agree regarding reversion of Shri Bahal to his parent Dept. with immediate effect.
" It is therefore quite clear that after the matter had been examined further in consultation with the officers concerned, the Chief Minister modified his earlier order dated February 15, 1958 and passed an order for the appellant 's immediate reversion to his parent department.
It was therefore permissible for the department to issue orders accordingly.
At any rate, the earlier order of the Chief Minister dated February 13, 1958 could not give rise to any right in favour of the appellant as it was not expressed in the name of the Governor as required by article 166 of the Constitution and was not communicated to the appellant.
As has been held by this Court in Bachhittar Singh vs The State of Punjab(1) it was only a provisional order which was 1102 open to reconsideration by the Chief Minister and did not bind anyone.
Nothing could therefore turn on the Chief Minister 's order dated February 13, 1958, when it was specifically rescinded by his subsequent order dated October 29, 1958.
There could in fact be no question of appellant 's confirmation as Landscape Architect as it was a temporary post all through until it was allowed to lapse on November 4, 1958.
The appellant has invited our attention to some developments which took place after he demitted office on November 4, 1958.
He has pointed out that the Government reversed the earlier order expunging the adverse entries by the subsequent order dated December 18, 1958, and it has been argued that this was enough to prove bad faith.
Our attention has in this connection been invited to the Deputy Secretary 's note dated August 28, 1959, that there was no cause for reversing the earlier order.
The respondents have pointed out that the Government re examined the matter and reversed the earlier decision because of subsequent developments.
But even if it were assumed that there was no justification for restoring the remarks which had once been expunged, that could not establish bad faith in issuing the order for the appellant 's reversion as it had been passed much earlier.
It appears that the appellant made a representation to the Governor of Punjab on April 22, 1959, and he has reproduced the Governor 's minute dated July 17, 1959 thereon in his petition of appeal to this Court.
We have gone through the minute and it shows that the Governor has expressed himself strongly in favour of the appellant.
All the same, he realised that he was unable to do anything for him; and it has not been urged before us that the Governor was in a position to order the appellant 's reinstatement on the post of Landscape Architect.
It would thus appear that although the appellant has based his case almost entirely on mala fides, he has not succeeded in proving the allegation.
As has been stated, he did not furnish the necessary particulars for the allegation, so that it was not obligatory for the respondents to deal with it in details in their reply.
Even as the allegation stood, what the appellant had to prove was not malice in its legal sense, for that was not his case.
He had therefore to prove malus animus indicating that the respondent State of Punjab was actuated either by spite or ill will against him or by indirect or improper motives, but no such particulars were furnished by him.
The appellant could also establish lack of bonafide either by proving that his 1103 reversion was ordered for a collateral purpose and not for the ostensible purpose of abolishing an unnecessary post, or by proving that the ostensible purpose of abolishing the post was so unconvincing and absurd as to lack bonafide in the circumstances of the case.
Both the direct and circumstantial evidence, as well as the respondents ' admission and the surrounding circumstances of the case, were admissible to establish lack of bonafide, or bad faith, but the fact remains that, for reasons already stated, he has not succeeded in proving the allegation.
As has been held by this Court in section Pratap Singh vs The State of Punjab(1) it is for the person seeking to invalidate an order to establish the charge of bad faith.
It has to be remembered that such a charge may be made easily or without a sense of responsibility, and that is why it is necessary for Courts to examine it with care and attention.
As the appellant failed in establishing his case, we find nothing wrong with the impugned judgment of the High Court dated May 27, 1963, and the appeal is dismissed.
In the circumstances of the case, the parties are left to bear their own costs.
Before parting with the case we will like to say that even though the appellant has not succeeded in establishing mala fides or bad faith on the part of the respondent State of Punjab, it is apparent that he was a highly qualified Landscape Architect and there is nothing on the record to show that he faked integrity.
The Governor has made strong observations in his favour in his minute dated July 17, 1959, and we think it is desirable that the government or governments concerned should make a lump sum payment to him in addition to any terminal benefit he might have received already, so that he may be able to find some solace now that he has attained the age of superannuation and cannot look out for fresh employment.
It may also be mentioned that the appellant made applications for the production of some record by the State Governments but we were satisfied, while hearing the arguments, that the State Governments had placed whatever record was available with them for the disposal of this appeal and the appellant cannot have any legitimate grievance on that account.
So far as we are concerned, we have not found any difficulty in disposing of this appeal on the basis of the material on the record.
N.V.K. Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant who was an employee of the State Government in the Horticulture department, was on deputation with the Central Government.
In May, 1952 he was selected by the State Public Service Commission as Landscape Architect on a temporary basis.
From time to time he sought extension of time for joining the post and it was granted.
Eventually when he reported for duty in June, 1953 he was informed that the offer made to him stood cancelled as he did not join in time and that the post had been filled by appointing someone else.
He therefore rejoined the Government of India.
In 1954 the State Service Commission again advertised the post stating that it was a temporary post but was likely to continue.
The appellant was selected for the post and joined it on November 6, 1954.
His period of probation was extended but he was not confirmed in the post.
Eventually the State Government decided to abolish the post of Landscape Architect with immediate effect and the appellant reverted to his substantive post in the State service on November 4, 1958.
The High Court dismissed the appellant 's writ petition.
In appeal to this Court it was contended on his behalf that (i) the order of premature abolition of the post was male fide in that it was the result of inordinate hostility of higher officers towards him; (ii) the discontinuance of the post was due to personal reasons because the higher officers were displeased with him for pointing out irregularities in incurring expenditure and (iii) the order abolishing the post was illegal because it denied the benefit of three months notice for termination of his appointment.
Dismissing the appeal, ^ HELD: (1) (a) Although the appellant has based his case almost entirely on mala fides, he has not succeeded in proving the allegation.
[1102G] (b) He did not furnish the necessary particulars for the allegation.
What he had to prove was not malice in its legal sense but males animus indicating that the State Government was actuated either by spite or ill will against him, 1090 or by indirect or improper motives.
It was also not shown that his reversion was ordered for a collateral purpose and not for the ostensible purpose of abolishing an unnecessary post, or by proving that the ostensible purpose of abolishing the post was so unconvincing and absurd as to lack bona fides.
Both direct and circumstantial evidence were admissible to establish lack of bona fides or bad faith, but the appellant has not succeeded in proving the allegation.
[1102 H 1103 B] (c) It is for the person seeking to invalidate an order to establish the charge of bad faith.
Such a charge may be made easily or without any sense of responsibility.
That is why courts examine it with care and attention.
[1103 C] section Pratap Singh vs The State of Punjab, ; at 741; referred to.
(2) It cannot be said that the post was abolished without reason or justification, but with the intention of getting rid of the appellant somehow.
The post was a temporary one all through.
The question of continuation of the post was referred to a special committee presided over by the Minister and that committee came to the conclusion that the post was no longer necessary and should therefore be abolished.
The Cadre Committee to which also a reference was made, made a similar recommendation.
The reason for abolishing the post was that almost all the plans which were needed for the project had been prepared and the Chief Engineer 's Organization would have no difficulty in carrying on the outstanding work.
[1097 H, 1097 E G] State of Haryana vs Des Raj Sengar, ; ; held not applicable.
(3) There is nothing on record to show that the appellant 's alleged exposure of irregularities in the expenditure led to an adverse decision against him.
While the controversy regarding the alleged unauthorised expenditure was raised in December, 1954, the decision to revert him was taken four years later.
[1098 F] (4) There was no term in the order of appointment given to the appellant that he would be entitled to a three months ' notice for termination of his appointment.
The State Public Service Commission specified in the impugned notification that the post was temporary upto February, 1955 but was likely to continue thereafter.
If the appellant knew that the term of the post was to expire in November, 1958, he could not possibly claim that he should have been given three months ' notice.
He was fully aware of his precarious tenure from month to month.
[1099 F H] (5) The earlier order of the Chief Minister dated February 13, 1958 in the appellant 's favour could not give rise to any right as it was not expressed in the name of the Governor as required by article 166 of the Constitution and was not communicated to the appellant.
It was only a provisional order which was open to reconsideration by the Chief Minister and did not bind anyone.
Nothing could, therefore, turn on the Chief Minister 's order dated February 13, 1958, when it was specifically rescinded by his subsequent order dated October 29, 1958.
There could be no question of appellant 's confirmation as Landscape Architect as it was a temporary post all through until it was allowed to lapse on November 4, 1958.
[1101 G 1102 B] 1091 Bachittar Singh vs State of Punjab, [1962] Suppl.
3 SCR 713; referred to.
(6) This was not really a case of abolition of the post of Landscape Architect, for the post was sanctioned upto November 4, 1958 and was allowed to lapse thereafter.


judgement:
Appeal No. 206 of 1955, 63 On appeal from the judgment and order dated the 5th May 1954 of the Patna High Court in Appeal from the Original Order No. 284 of 1951 arising, out of the order dated the llth July 1951 of the Court of Subordinate Judge, Motihari in Misc.
Case No. 30 of 1951.
Veda Vyas, (section K. Kapur and Ganpat Rai, with him) for the appellant.
C.K. Daphtary, Solicitor General of India (K. B. Asthana and C. P. Lal, with him) for respondent NO. 1. 1956.
January 31.
The Judgment of the Court was delivered by BOSE J.
This appeal arises out of certain execution proceedings.
The decree which the appellant, Jainarain Rain Lundia, seeks to execute is one that directsspecific performance of a contract to sell certain shares in a private limited company known as the Ganga Devi Sugar Mills, together with a five annas share in a partnership firm called the Marwari Brothers, on payment of a sum of Rs. 2,45,000.
The facts are as follows.
The partnership firm, known as the Marwari Brothers, was formed on the 29th of February 1936.
The partners consisted of two groups called the Bettia Group and the Padrauna Group.
The Padrauna Group consisted of (1) Kedarnath Khetan and (2) a firm called Surajmal.
These two were the plaintiffs in the suit.
Kedarnath was one of the partners of the Surajmal firm.
The Bettia Group consisted of (1) Gobardhan Das (2) Jainarain Ram Lundia (3) Badri Prasad and (4) Bisheshwar Nath.
On Bisheshwar Nath 's death his son Madan Lal Jhunjhunwalla stepped into his shoes.
These persons were the defendants.
The Marwari Brothers Firm was formed for the purpose of promoting a company for starting a sugar mill in Champaran and for securing the managing agency of the company for itself for a period of ninety years.
This was done.
The capital of the company consisted of Rs. 8,00,000 divided into 800 shares of 64 Rs. 1,000 each.
The shares were distributed as follows.
In the Bettia Group Gobardhan Das and his brother Badri Prasad had 100 shares; Jainarain had 150 and Madan Lal had 100.
The Bettia Group thus had 350 shares between them.
The other group (Padrauna) held the remaining 450 shares.
About five years later the two sets of partners fell out and, as a result, the Bettia Group agreed, on 1 1 1941, to sell a certain number of their shares in the Ganga Devi Sugar Mills Limited to the Padrauna Group along with a certain share in the Marwari Brothers firm.
The exact number of shares agreed to be sold and the extent of the share in the firm was amatter of dispute but that does not concern us at this stage because we are only concerned with the final result embodied in the decree now under execution.
The Padratuna Group sued for specific performance and the dispute was carried as far as the Federal Court.
That Court affirmed the decree of the Calcutta High Court on 6 5 1949.
The substance of the decree was this: 1."It is declared that upon payment and or tender to the defendants appellants Jainarain Ram Lundia and Madan Lal Jhunjhunwala of the sum of Rs. 2,45,000 with interest thereon by the plaintiffs, the plaintiffs are entitled to 250 shares belonging to the said defendants in the Ganga Devi Sugar Mills Limited and five annas share belonging to them in the Marwari Brothers and to all dividends and profits in respect thereof with effect from 1 2 1941 2."And it is further ordered and decreed that against payment or tender by.
the plaintiffs to the said defendants of the said sum of Rs. 2,45,000 with interest as aforesaid the said defendants appel]ants and all proper parties do execute in favour of the plaintiffs proper deed or deeds of transfer or assignment of the said 250 shares in the Ganga Devi Sugar Mills Limited and the said five annas share in the Marwari Brothers This was in slight variation of the first Court 's decree.
The exact variation does not matter.
All 65 that it is necessary to note is that the plaintiffs (that is, the Padrauna Group) tendered the money some time after the first Court 's decree and before the Calcutta High Court 's decree.
The tender was not accepted as the defendants (the Bettia Group) had appealed.
It is admitted that there was no second tender after the High Court 's decree.
After the Federal Court had settled the matter, one of the defendants, Jainarain Ram Lundia, applied to the Calcutta High Court for execution.
The decree was transferred to the Subordinate Judge, Motihari, and the execution proceedings started there on 25 1 1951.
One of the plaintiffs, Kedarnath Khetan, filed an objection petition on 20 3 1951.
That is the objection we are concerned with.
Among other things, one of the objections was that the defendants were not in a position to implement the conditions imposed on them by the decree because the Marwari Brothers firm was dissolved by agreement between the parties before the Federal Court 's decree and was no longer in existence.
The present appeal turns almost entirely on that fact and on the conseq uences that flow from it.
The first Court, that is, the Subordinate Judge 's Court at Motihari to whom the decree bad been transferred, declined to go into this holding that it had no jurisdiction as a transferee Court.
The plaintiff Kedarnath appealed to the High Court and succeeded.
The High Court held that the transferee Court had jurisdiction, that the Marwari Brothers had been dissolved and that because of that the defendants could not execute the decree.
The defendants appealed here.
We will first consider the question of fact, namely, whether the Marwari Brothers was still in existence as a firm at the date of the execution application.
On this point we agree with the High Court that it was not, for the following reasons.
The plaintiff Kedarnath asserted in his objection petition that the firm had been dissolved by agreement between the parties "including the plaintiffs and the defendants".
This fact was not denied by 9 66 the defendant Jainarain Ram Lundia in his rejoinder though the fact was specifically alleged to be within his personal knowledge.
Even if he did not know whether the firm bad been dissolved or not (a fact which cannot be the case for reasons that we shall give later) he was certainly in a position to admit or deny whether the fact was within his personal knowledge.
His silence can therefore only have one meaning.
The defendant 's learned counsel contended before us that the fact had been denied by implication because Kedarnath stated that his side was, and had always been, ready to perform their part of the decree.
Counsel argued that as the plaintiffs contended that performance was not possible after the dissolution of the Marwari Brothers firm this meant that the firm was still in existence.
We reject this contention and remark in passing that this is inconsistent with another argument which was also urged in this Court, namely that the fact of dissolution was no bar to performance on the defendant 's part.
Quite apart from the language of the rejoinder, the defendant Jainarain said in paragraph 15 of his application dated 12 7 1954 made to the High Court for leave to appeal here that "the said Marwari Brothers was in existence on the date of the said conveyance, namely 14th September 1950, and died a natural death on the conveyance of the Ganga Devi Sugar Mills to North Bihar Sugar Mills".
This is a clear admission that the firm was dissolved, at any rate, on 14 9 1950.
The plaintiff 's contention is that it was dissolved much earlier but whether that was so or not will make no difference to this appeal because 14 9 1950 is also before the date of the application for execution.
The defendant 's learned counsel tried to explain this away also.
He said that the defendant did not mean that the firm was dissolved on that date but that as the only purpose for which the firm existed, namely, the managing agency of the Ganga Devi Sugar Mills, had gone the firm could no longer function.
67 In order to understand this, some further facts will be necessary.
While the plaintiff 's appeal was being heard in the High Court, the defendants made an application to that Court on 14 4 1954 asking for permission to adduce further evidence in the shape of a sale deed dated 14 9 1950.
The defendant con , tended that he had only "recently" come to know that the Ganga Devi Sugar Mills had sold all its land, machinery, etc.
to the North Bihar Sugar Mills on 14 9 1950.
This terminated the managing agency, and as the only business of the firm was this managing agency and as that was the only purpose for which the firm was formed, it was no longer able to function.
But he said that this deed would show conclusively that the firm was in existence on that date.
The High Court refused to accept this document because it considered that the only ground on which additional evidence can be admitted in appeal is when the Court is unable to pronounce judgment on the material already before it; as that was not the case here it rejected the document.
We need not decide whether there is any conflict of view between the Privy Council decisions in Kessowji Issur vs G.I.P. Rly.(1) and Parsotim vs Lal Mohar(2) on the one hand and Indrajit Pratap Sahi vs Amar Singh(3) on the other because, even if this evidence were to be admitted and were to be accepted as true, there would still be the defendant 's admission in the High Court that the firm stood dissolved at least on 14 9 1950.
We are not able to construe the statement in any other way.
The plaintiff says that the dissolution was much earlier and that the firm mentioned in the sale deed now sought to be filed was not the same firm but another firm of the same name, but even if the defendant 's version be accepted the fact still remains that even according to his statement there was a dissolution before his application for execution and that therefore the defendants were not in apposition to assign their five annas share (1) [1907] L.R. 31 I.A. 115, 122.
(2) [1931] L.R. 58 I.A. 254.
(3) [1928] L.R. 50 I.A. 183, 190, 191.
68 in the Marwari Brothers firm.
We now have to consider the effect of that.
Much of the argument about this revolved round the question whether the equitable rules that obtain before decree in a suit for specific performance con tinue at the stage of execution.
It is not necessary for us to go into that here because the position in the present case is much simpler.
When a decree imposes obligations on both sides which are so conditioned that performance by one is conditional on performance by the other execution will not be ordered un less the party seeking execution not only offers to .perform his side but, when objection is raised, satisfies the executing Court that he is in a position to do so.
Any other rule would have the effect of varying the conditions of the decree: a thing that an executing Court cannot do.
There may of course be decrees where the obligations imposed on each side are distinct and severable and in such a case each party might well be left to its own execution.
But when the obligations are reciprocal and are interlinked so that they cannot be separated, any attempt to enforce performance unilaterally would be to defeat the directions in the decree and to go behind them which, of course, an executing Court cannot do.
The only question therefore is whether the decree in the present case is of this nature.
We are clear that it is.
The relevant part of the decree has already been quoted.
It directs that "against payment or tender by the plaintiffs. the said defendants. do execute in favour of the plaintiffs proper deed or deeds of transfer of . five annas share in the Marwari Brothers.
This is not a case of two independent and severable directions in the same decree but of one set of reciprocal conditions indissolubly linked together so that they cannot exist without each other.
The fact that it is a decree for specific performance where the decree itself cannot be given unless the side seeking performance is ready and willing to perform his side of the bargain and is in a position to do so, only strengthens the conclusion that that was the meaning 69 and intendment of the language used.
But the principle on which we are founding is not confined to cases of specific performance.
It will apply whenever a decree is so conditioned that the right of one party to seek performance from the other is conditional on his readiness and ability to perform his own obligations.
The reason is, as we have explained, that to hold otherwise would be to permit an executing Court to go behind the decree and vary its terms by splitting up what was fashioned as an indivisible whole into distinct and divisible parts having separate and severable existence without any interrelation between them just as if they had been separate decrees in separate and distinct suits.
Fry on Specific Performance was quoted to us (6th edition, Chapter IV, pages 546 onwards) where the learned author states that relief can often be obtained after judgment along much the same lines as before: thus a party to a contract may, in a proper case, apply for rescission of the contract and so forth.
it was urged by the other side that even if that can be done it can only be done by the Court which passed the decree and not in execution.
We do not intend to examine this because even if these remedies also exist, provided application is made to the proper Court, it does not affect the basic principle in execution that the executing Court must take the decree as it stands and cannot go behind it.
If the decree says that on payment being made some definite and specific thing is to be given to the other side, the executing Court cannot alter that and allow something else to be substituted for the thing ordered to be given.
The learned counsel for the defendant appellant contended that even if the Marwari Brothers had ceased to exist as a firm the plaintiff was still entitled to a five annas share in its assets on dissolution.
But a five annas share in the assets of a dissolved firm which has ceased to exist is a very different thing from a five annas share in a going partnership concern; and to permit this substitution in the decree would be to alter it in a very material particular.
The defendant may or may not have the 70 right to ask the Court which passed the decree to vary it in that way but he can certainly not, ask the executing Court to do so.
The decree must either be executed as it stands in one of the ways allowed by law or not at all.
In the High Court, and also before us, much was made of the fact that the plaintiff had not re tendered the money after the decree was varied by the High Court and it was argued that that precluded him from contesting the defendant 's right to attach his property under Order XXI, rule 32(1), of the Civil Procedure Code.
The remedy provided in Order XXI, rule 32(1), is, of course, one of the remedies available in execution of a decree for specific performance but it can only be used by a person who is entitled to execute the decree, and if, by reason of his own incapacity to perform his part, he is precluded from seeking execution, Order XXI, rule 32 (1), cannot apply.
The only question that remains is whether the executing Court can consider whether the defendant is in a position to perform his part of the decree.
But of course it can.
If the executing Court cannot consider this question who can? The executing Court has to see that the defendant gives the plaintiff the very thing that the decree directs and not something else, so if there is any dispute about its identity or substance nobody but the Court executing the decree can determine it.
It is a matter distinctly relating to the execution, discharge and satisfaction of the decree and so, under section 47 of the Civil Procedure Code, it can only be determined by the Court executing the decree.
And as for the first Court 's conclusion that it could not decide these matters because it was not the Court that passed the decree, it is enough to say, as the High Court did, that section 42 of the Code expressly gives the Court executing a decree sent to it the same powers in executing such decree as if it bad been passed by itself.
The next point urged by the appellant was that as the plaintiff did not raise the present objection before the Federal Court when it passed its decree he 71 is precluded from doing so now.
It is true this would have been a good ground for resisting a decree for specific performance but is no answer to the objection to execution.
The defendant undertook to perform his part when the decree was passed and he must make good that undertaking before he can seek execution because the decree, in view of its language and intendment, must either be executed as a whole or not at all; it cannot be split up into different and un correlated parts and be executed unilaterally.
It may be observed in passing that it was as much the duty of the defendant to seek modification of the contract by the Court which passed the decree, or modification of the terms of the decree later if he did not know these facts at the time, as he says, it was of the plaintiff.
The fact remains that the decree was passed in these terms and it must either be executed as it stands or not at all unless the Court which passed it alters or modifies it.
Then it was argued that this objection to execution should have been taken by the plaintiff in the Calcutta High Court when the defendant asked for transfer of the decree to Motihari and that as that was not done it is too late now.
But here also the answer is the same.
The only question before the Calcutta High Court on the application made to it was whether the decree should be transferred or not.
Whether the plaintiff might or could have taken the objection in the High Court is beside the point because it is evident that he need not have done so on the only issue which the application for transfer raised, namely, whether the decree should be transferred or not; at best it could only be said that the plaintiff had a choice of two forums.
If the appellant 's contention is pushed to its logical conclusion it would mean that whenever a decree is transferred all objection to execution must cease unless the order of the Court directing the transfer expressly enumerates the issues that the transferring Court is at liberty to determine.
In our opinion section 42 of the Civil Procedure Code is a complete answer to this contention.
The appeal fails and is dismissed with costs.

summary:
An executing court cannot go behind a decree so as to vary its terms and when the obligations it imposes on the parties are reciprocal and inseverable, rendering partial execution impossible, the decree must be executed wholly as it stands or not at all.
This is particularly true of a decree for specific performance where the party who seeks execution must satisfy the executing court that he is in a position to perform the obligations which the decree imposes on him.
That in cases where the identity or substance of what the decree directs a party to give to the other is in dispute, the executing court alone has the power to decide it under section 47 of the Code of Civil Procedure and under section 42 of the Code the powers of the court executing a decree on transfer are identical with those of the court which passed the decree.
That although the remedy provided by O. XXI, r. 32(1) of the Code of Civil Procedure is available in execution of a decree for specific performance, it can be used only by a person entitled to execute the decree and if, by reason of his own incapacity to perform his part, he is precluded from seeking execution, 0.
XXI, r. 32(1), can have no application.
Consequently, in a case where, as in the present, the defendant sought to execute a decree for specific performance of a contract but was himself unable to perform one of the obligations the decree imposed on his party, namely, to transfer five annas share in a partnership firm, for the reason that the firm had ceased to exist by dissolution before the date of execution, he was not entitled to execute the decree.
Held further, that the defendant could not be allowed to substitute five annas share in the assets of the dissolved firm instead, as that would amount to an alteration of the decree which the execution court was not competent to make.


judgement:
Civil Appeal No. 1727 of 1972.
(Appeal from the Judgment and order dt.
8.12.71 of the Delhi High Court in Income Tax Reference No. 30/67).
T. A. Ramachandran for the appellant.
B. B. Ahuja and Miss A. Subhashini for the respondent.
The Judgment of the Court was delivered by PATHAK, J.
This appeal by special leave is directed against the judgment of the High Court of Delhi disposing of a reference made to its by the Income Tax Appellate Tribunal on the following question: "Whether on the facts and in the circumstances of the case the sum of Rs. 24,252/ is an item taxable in the previous year under the Provisions of section 10(2) (vii), The appellant is a partnership firm carrying on business as forest contractors.
The partners are Thakur Dan Singh and his son, Thakur Mohan Singh.
The appeal relates to the assessment year 1958 59, for which the previous year is the financial year ending March 31, 1958.
The business was originally carried on by a Hindu undivided family consisting of the aforesaid father and son.
There was a total disruption of the family on March 22, 1956 and on the same day the separated members of the family constituted a partnership firm under the name and style of Messrs. D. section Bist & Sons.
The business was taken over as a running concern by the firm.
At the time when the business was owned by the family, it included three trucks.
On account of depreciation allowed in earlier years the written down value of two trucks came to nil in the assessment year 1952 53.
As regards the third truck, according to what is stated in the judgment of the High Court the written down value stood reduced to nil by the date of disruption of the Hindu undivided family.
During the previous year ending March 31, 1958, relevant to the assessment year 1958 59, two trucks were sold for a total of Rs. 12,000/ while the third truck was sold for Rs. 12,252/ .
During the assessment proceeding for the assessment year 1958 59, the Income Tax Officer held that the entire sum of Rs. 24,252/ , representing the sale proceeds of the three trucks, should be deemed to be 226 Profits of the previous year ending March 31, 1958 by virtue of the second proviso to section 10(2) (vii) of the Indian Income Tax Act, 1922, and he included that amount in the total income of the appellant.
Before the Appellate Assistant Commissioner the appellant contended ' that as no depreciation was allowed to the appellant in respect of the three trucks no question arose of computing any profit in its hands, but the contention was rejected.
The appellant was unsuccessful before the Income Tax Appellate Tribunal also.
At the instance of the appellant, a reference was made to the High Court of Delhi.
The High Court took the view that inasmuch as the partners of the appellant were the same individuals who were members of the Hindu undivided family and as the business was taken over as a running concern by the appellant from the family "there was merely a change in the style and nature of the Hindu undivided family on March 22, 1956".
In the opinion of the High Court the original cost of the trucks to the appellant would be the same as it was to the Hindu undivided family and it rejected the contention that the original cost of the three trucks in the hands of the appellant must be taken as nil.
In the result, the High Court affirmed ' that the sum of Rs. 24,252/ was taxable in the hands of the appellant by virtue of the second proviso to section 10(2) (vii).
It appears from the judgment of the High Court that the written down value of the three trucks exhausted while they were still the assets of the Hindu undivided family business, the written down value of two trucks having been exhausted in the assessment year 1952 53 and that of the third truck having been exhausted in the assessment year 1956 57.
Accordingly, when the business was taken over by the appellant the written down value of the three trucks was nil.
In defining the expression "written down value" section 10(5) (b) declares that in the case of assets acquired before the previous year the written down value means ` the actual cost of the assessee less all depreciation actually allowed to him under the Act.
" It is urged on behalf of the appellant that the actual cost to the appellant of the three trucks was nil inasmuch as the written down value had already been exhausted when the business was taken over by the appellant.
It is urged that as no depreciation could possibly have been allowed to the appellant, no question arises of applying the second proviso to section 10(2) (vii).
Now, in enacting the second proviso to section 10(2) (vii) the Legislature sought to recover back from the assessee the benefit allowed to him by way of depreciation allowance earlier, and it did so by imposing a balancing charge on the excess of the sale price over the written down value to the extent of the total depreciation allowance granted to the assessee in the past.
In the present case, the appellant could not have been allowed any depre 227 ciation allowance for the reason that from the outset when the three trucks became its property, the written down value was nil.
No question can arise of imposing balancing charge under the second proviso to section 10(2)(vii).
It is contended by the Revenue that the business was taken over as a running concern by the appellant and" therefore, account should be taken of the depreciation allowed in the hands of the Hindu undivided family.
In our opinion, it is immaterial that the business was taken over as a running concern.
Where a business is taken over as a running concern by an assessee, the cost to it of the assets must ordinarily turn on the value of the assets as on the date of acquisition.
There is no material before us evidencing an intention to the contrary.
It cannot be disputed that the actual cost to the appellant of the three trucks must be regarded as nil, and that being so no depreciation can be said to have been ever actually allowed to the appellant.
It is pointed out by the Revenue that the partners of the appellant are the same two individuals who constituted the Hindu undivided family, and reliance has been placed on the observation of the High Court that in the constitution of the firm "there was merely a change in the style and nature of the Hindu undivided family".
Now we must remember that we are dealing with a case under the Income Tax Act.
We are concerned with provisions for the computation of income of an assessee for the purpose of determining its income tax liability.
It may be, as is quite often said, that a firm is merely a compendious description of the individuals who carry on the partnership business.
But under the Income Tax Act, a firm is a distinct assessable entity.
Section 3 of the Indian Income Tax Act, 1922 treats it as such, and the entire process of computation of the income of a firm proceeds on the basis that it is a distinct assessable entity.
In that respect it is distinct even from its partners.
Commissioner of Income Tax, West Bengal vs A. W. Figgies and Company and others(1) As an assessable entity it is also distinct from a Hindu undivided family, which in itself is regarded as a separate unit of assessment under Section 3.
Raja Bejoy Singh Dudhuria vs Commissioner of Income Tax, Bengal(D).
For the purposes of the question before us it recks little that the very individuals who constituted the Hindu undivided family now constitute the appellant firm.
When depreciation allowance was allowed to the Hindu undivided family in its assessment proceedings, it was a step taken in determining the taxable income of the family.
The depreciation allowed to the family (1) (2) 228 cannot be regarded as depreciation allowed to the appellant.
We must ignore entirely the circumstance that depreciation has been allowed to the Hindu undivided family in the past.
On these considerations it is not possible to say that the second proviso to section 10(2) (vii) is attracted.
Accordingly, we hold that the sum of Rs. 24,252/ is not taxable in the hands of the appellant for the assessment year 1957 58 by virtue of the second proviso to section 10(2) (vii) of the Indian Income Tax Act, 1922" and we answer the question referred in favour of the appellant and against the Revenue.
It was strenuously contended on behalf; of the Revenue that the sum of Rs. 24252/ should be considered as capital gains under section 12B of the Act, and that it could be brought to tax under that head.
There was some debate before us whether that point can be regarded as an aspect of the question specifically referred by the Tribunal for the opinion of the High Court.
We consider it unnecessary to enter into the matter, because it is open to the Tribunal to consider whether the assessment should be confirmed on any other ground, now that the case will be before it again for disposal conformably to this judgment.
The appellant is entitled to its costs of this appeal.
P.H.P. Appeal allowed.
& Case remitted.

summary:
A Hindu Undivided Family consisting of Thakur Dan Singh and his son, Thakur Mohan Singh was carrying on business as forest contractors.
There was a total disruption of the family in March, 1956.
On that day, the written down value of three trucks owned by the Hindu Undivided Family was nil on account of depreciation allowance granted under the Income Tax Act, 1922.
On the same day when the joint family was disrupted, Thakur Dan Singh and his son Thakur Mohan Singh constituted a partnership firm.
The business of Hindu Undivided Family was taken over as a running concern by the firm.
The firm sold the three trucks for Rs. 24,252/ .
The Income Tax officer held that the entire sale proceeds should be deemed to be profits of the firm by virtue of the second proviso to section 10(2)(vii) of the Income Tax Act, 1922 and 1: he included that amount in the total income of the appellant.
The decision of the Income Tax officer was confirmed by the Appellate Assistant Commissioner, the Income Tax Appellate Tribunal and the High Court.
The High Court took the view that inasmuch as the partners of the appellants were the same individuals who were the members of the Hindu Undivided Family and as the business was taken over as a running concern by the appellants from the family, there was merely a change in the style and nature of the Hindu Undivided Family.
According to the High Court, the original cost of the trucks to the appellant would be the same as it was to the Hindu Undivided Family.
Allowing the appeal by the assessee, ^ HELD: The second proviso to section 10(2)(vii) seeks to recover back from the assessee the benefit allowed to him by way of depreciation allowance earlier.
It does so by imposing a balancing charge on the excess of the sale price over the written down value to the extent of the total depreciation allowance granted to the assessee in the past.
In the present case, the appellant could not have been allowed any depreciation allowance for the reason that from the outset when the three trucks became his property the written down value was nil.
No question of imposing a balancing charge, therefore, can arise in this case.
It is immaterial that the business was taken over as a running concern.
It is also immaterial that the partners of the firm are the same as the members of the Hindu Undivided Family.
Under s.2 of the Income Tax Act, a firm is a distinct assessable entity.
[226G H, 227A, B C] 225 Commissioner of Income Tax, Bengal vs A. W. Figgics & Co. and Ors., S.C.I. Raja Bejoy Singh Dudhuria vs Commissioner of Income Tax, Bengal, ; relied upon.
When depreciation allowance was allowed to the Hindu Undivided Family in its assessment proceedings, it was a step taken in determining the taxable Income of the family.
The depreciation allowance allowed to the family cannot be regarded as depreciation allowed to the appellant firm.
[227GH, 228A]