judgement:
Civil Appeal No. 1148 of 1975.
Appeal by special leave from the judgment and order dated the 2 12 1974 of the Andhra Pradesh High Court in writ petition No. 2250 of 1973.
327 M. C. Bhandare and Miss A. Subhashini for the appellant.
P. Ram Reddy and P. P. Rao for the respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This is an appeal special leave against the judgment of the Andhra Pradesh High Court dated December 2, 1974 and arises under the following circumstances.
Itikala Kollayya and his brother in law Kovvuru Narasimhaiah constituted partnership firm dealing in foodgrains.
The firm carried on the business in the name and style of "Kovvuru Narasimhaiah and Ktikala Kollayya".
The firm, however, stood dissolved in 1963.
The firm appears to have been in serious financial difficulties and incurred debts to the tune of about Rs. 70,000/ .
The creditors filed an insolvency petition but the petition was ultimately dismissed because it was held that the firm had no means to discharge the debts.
Subsequently the business was started in the name of B. V. section Rao son of Bala Seshaiah.
After the death of Itikala Kollayya his son Bala Seshaiah and his son B. V. section Rao carried on joint Hindu family business.
In fact B. V. section Rao applied on May 8, 1966 for a certificate of registration to the Sales Tax Department of the State and was given the same.
B. V. section Rao who was a minor had applied for the certificate through his guardian Bala Seshaiah.
Thereafter the Sales Tax Department continued to make assessments in the name of B. V. section Rao.
Thus for the years 1966 67, 1967 68 and 1968 69 the provisional assessments were made in the name of B. V. section Rao the minor.
It is not disputed that during all these years the business was run in the name of B. V. section Rao the minor grandson of Kollayya.
There are also materials on the record to show that B. V. section Rao had informed the Sales Tax Department that the business was in fact carried on by the Joint Hindu family and yet no assessment was made in the name of the Joint Hindu family until 1971.
It is true that the High Court has held that B. V. section Rao was merely a benamidar for Kollayya who was the real proprietor of the firm and therefore the real dealer would be Kollayya and not B. V. section Rao.
The High Court also relied on the circumstance that KollayYa did not appear before the Sales Tax Department in obedience to the notices issued to him and therefore the High Court thought it was too late in the day for Kollayya to contend that he was not a dealer within the meaning of the Andhra Pradesh General Sales Tax Act.
Mr. Ram Reddy learned counsel for the respondent did not support this part of the reasoning of the High Court because the Sales Tax Department having itself issued the certificate of registration to B. V. section Rao and having recognised him as a dealer could not make a somersault and start assessing tax in the name of Kollayya who was not at all a registered dealer.
Furthermore, it would appear that B. V. section Rao had himself informed the Sales Tax Department that his business had come to an end and that the business was carried on by his grandfather and yet the Sales Tax Department did not choose to cancel the registration of B. V. section Rao or to issue fresh notice to Kollayya.
In these circumstances the ball was in the court of the Sales Tax Department which appears to have taken delayed action in the matter for assessing Kollayya as the manager of the 328 joint Hindu family for the first time in 1971.
Mr. Ram Reddy confined his arguments only to the question that in view of the circumstances of the case Kollayya must be deemed to have knowledge as the karta of the joint Hindu family that he had earned sales tag liability and from this alone an inference was sought to be raised that the trust was a fraudulent transaction.
We are, however, unable to press this inference too far in view of the reasons which we shall give hereafter.
It appears that on May 26, 1969 B. V. section Rao informed the Sales Tax Department that he had stopped the business with effect from August 1, 1968 and despite this fact the Sales Tax Department went on making assessment orders in the name of B. V. section Rao.
Further on January 17, 1968 the Deputy Commercial Tag officer while makeing the assessment order had stated that the business was being carried on as joint family business by Bala Seshaiah the father of B. V. section Rao.
It appears that on September 16, 1968 Itikala Kollayya and Kovvuru Narasimhaiah, i.e. the partners of the dissolved firm, executed a registered deed of trust by which the properties mentioned in Schedule 'B ' were vested in the trustees for the purpose of paying off the creditors who were named in Schedule 'A ' of the trust deed.
Thirteen persons were named in Schedule 'A '.
According to the assessees the creditors mentioned in Schedule 'A ' had obtained decrees against the settlors and it was for the purpose of discharging the previous debts of those creditors that the trust was executed.
Subsequently it appears that the assessments were made against the joint Hindu family on January 18, 19 and 24, 1971 and penalties were also imposed on the assessees for not paying the sales tax.
The sales tax authorities, therefore, made the assessment in the name of the joint Hindu family for the first time on January 18, 1971 and prior to that the assessments were made in the name of the minor B. V. section Rao.
The Sales Tax Department having found that the assessees had constituted a trust in respect of the properties and as the amounts could not be realised from the assessees notices were issued on the petitioners who were the trustees for payment of the amounts due under the various assessments made by the Sales Tax Department on the joint Hindu family.
The Sales Tax Department was of the view that the deed of trust dated September 16, 1968 was void and fraudulent and was brought about to defeat the debts of the Sales Tax Department in the shape of the assessments made against the joint Hindu family whose business was carried on by its karta Bala Seshaiah.
Demand notices under section 17(1) of the Andhra Pradesh General Sales Tax Act were served on the petitioners who filed a writ petition before the Andhra Pradesh High Court for quashing the notices, on the basis of which the amounts were sought to be recovered.
The High Court held that the deed of trust was fraudulent and had been executed to defeat the Sales Tax Department of its dues and the petitioners were, therefore, trustees of an invalid trust and being in possession of the properties held the same on behalf of the debtor assessees who were liable to pay the amounts.
On this finding the writ petition was dismissed by the High Court.
The petitioners moved the High Court for granting certificate of fitness for leave to appeal to this Court which having been 329 refused they obtained special leave from this Court and hence this appeal.
It is true that the Sales Tax Department as also the High Court have held in a very summary fashion that the trust deed was void and fraudulent and, therefore, it could be ignored by the Sales Tax Department.
Normally this should have been a finding of fact which could have settled the matter beyond any controversy.
But on a perusal of the facts and circumstances of the case we find that the real point of law which arose on the admitted facts does not appear to have been considered either by the sales tax authorities or even by the High Court.
Merely because the joint Hindu family had earned liability to pay sales tax it had been inferred by the High Court as also by the sales tax authorities that the registered deed of trust executed on September 16, 1968, about three years before the actual assessments were made in the name of the joint Hindu family was a colourable transaction.
Learned counsel for the appellants Mr. M. C. Bhandare submitted that the petitioners were merely trustees who were to discharge the debts of the creditors mentioned in Sch. 'A '.
The moment the trust deed was executed by Kollayya and Narasimhaiah the title to those properties vested in the trustees and thus put beyond the reach of the Sales Tax Department.
It cannot be said in the circumstances that the trustees were holding the properties either on account of or on behalf of the joint Hindu family, because they had acquired an independent title under the trust.
In our opinion, the contention put forward by the learned counsel for the appellants is sound and must prevail.
The learned counsel appearing for the respondent, however, submitted that the mere fact that the members of the joint Hindu family were aware that they had incurred the sales tax liability because they were dealers in foodgrains and had conducted a number of sales was sufficient to show that the trust deed was fraudulent and unlawful.
It was also submitted that under section 17(1) of the Andhra Pradesh General Sales Tax Act, the sales tax authorities could realise the sales tax dues even from the trustees and the execution of the trust deed would not stand in the way of the recoveries sought to be made against the petitioners.
We would first consider the question as to the nature of the trust deed executed by the settlors.
It is not disputed that the trust deed was a registered instrument and came into existence three years before the actual assessments were made in favour of the joint Hindu family.
Furthermore it is clearly stipulated in the trust deed that the object of the trust was to discharge the debts of the previous creditors of the settlors who had obtained decrees from the Courts.
The names of those creditors are mentioned in Schedule 'A ' arid there is no material before us to show that the creditors mentioned in Schedule 'A ' are fictitious persons.
It is true that in the cow of the trust deed printed in the paper book the names of the creditors are not mentioned but from the certified copy of the original trust deed it appears that the names are there which constitute of the following persons: 1.
Narendrakumar Manoharlal & Co. 2.
Devraj Dhanumal.
330 3.
Dhupaji Phoolchand.
Bhubutmal Chandumal.
Bhubutmal Bhoormal.
Kesarmal Mancharlal.
Taraohand Santilal.
Manrupji Nathumall.
Pokhraj Kantilal.
Pratapchand Kundanmal.
Ambapuram Bachu Pedda Subbiah & Sons.
Meda Krishnayya.
T. Nagalakshmidevamma Minor by guardian husband T. Sanjeeva Rao.
It is well settled that it is open to the settlors to create a trust for discharging the debts of their creditors.
Such an object cannot be said to be unlawful.
Section 4 of the , runs thus: "4.
A trust may be created for any lawful purpose.
The purpose of a trust is lawful unless it is (a) forbidden by law, or (b) is of such a nature that, if permitted, it would defeat the provisions of any law, or (c) is fraudulent, or (d) involves or implies injury to the person or property of another, or (e) the Court regards it as immoral or opposed to public policy.
* * * * *" The. Object of the trust is neither forbidden by law, nor does it defeat any legal provision, nor it can be said to be fraudulent ex facie.
In these circumstances.
the view taken by the High Court or the Sales Tax authorities that the trust executed in favour of the petitioners was fraudulent or unlawful cannot be accepted.
The other question raised by Mr. Ram Reddy learned counsel for the respondent was that the trust is hit by section 53 of the , the relevant portion of which runs thus: "53(1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed." Before analysing the ingredients of the section mentioned above, it may be necessary to state the admitted facts: (1) that at the time when the trust was executed no assessment order against the joint Hindu family which was managed by one of the executants of the trust had been passed.
Thus there was no real debt due from one of the executants of the trust at the time when the trust was executed; 331 (2) that the trust did not have for its object any unlawful purpose; (3) that the names of the creditors were clearly mention ed in Schedule 'A ' of the trust as also the properties some of which had already been sold to liquidate debts of the settlors; (4) that under the trust the executants did not reserve any advantage or benefit for themselves; and (5) there is no material in the present case to show that the creditors mentioned in Schedule 'A ' had obtained collusive decrees or that they were aware of the debts owed by one of the executants to the Sales Tax Department before the execution of the trust deed.
In the facts and circumstances of this appeal therefore it cannot be said that the trust deed was executed to defraud the creditors namely the Sales Tax Department.
Under section 53 of the a person who challenges the validity `of the transaction must prove two facts (1) that a document was executed by the settlor; and (2) that the said document was executed with clear intention to defraud or delay the creditors.
How the intention is proved would be a matter which would largely depend on the facts and circumstances of each case.
It is well settled that the mere fact that a debtor.
chooses to prefer one creditor to the other, either because of the priority of the debt or otherwise, by itself cannot lead to the irresistible inference that the intention was to defeat the other creditors.
In Musahar Sahu and another vs Hakim Lal and Anr.(l) where the Privy Council observed as follows: "The transfer which defeats or delays creditors is not an instrument which prefers one creditor to another, but an instrument which removes property from the creditors to the benefit of the debtor.
The debtor must not retain a benefit for himself.
He may pay one creditor and leave another unpaid: Middleton vs Pollock (1876)2 Ch.
D. l04, l08.
So soon as it is found that the transfer here impeached was ` made for adequate consideration in satisfaction of genuine debts, and without reservation of any benefit to the debtor ` it follows that no ground for impeaching it lies in the fact that the plaintiff.
who also was a creditor was a loser by payment being make to this preferred creditor there being in the case no question of bankruptcy.
" This decision was endorsed by the Privy Council in Ma Pwa May and another vs section R. M. M. A. Chettiar Firm(2) where the Judicial Committee observed as follows: "A debtor is entitled to prefer a creditor, unless the transaction can be challenged in bankruptcy, and such a pre ference cannot in itself impeached as falling within section 53.
" (1) L.R. 43 I.A. 104.
(2) A.l.R. , 281.
332 The learned counsel for the appellants relied on a decision of the Gujarat High Court in Sampatraj Chhogalalji and others vs V. 5.
Patel, Sales Tax officer, and others(l) where a Division Bench of the High Court observed as follows : "The effect of the assignment is to create a valid title in the trustees and a valid and enforceable trust for the benefit of the creditors as soon as the deed has been executed and the creditors have assented to it.
It is thus clear under the said deed of arrangement, the petitioners as trustees became the legal owners of the properties assigned " to them, holding the trust premises upon trust to collect them in the first instance and after selling them to distribute the sale proceeds thereof rateably amongst the various creditors, a list of whom was annexed to Schedule II to the deed of arrangement.
It follows, therefore, that the trustees were not holding the sale proceeds which they deposited with the said bank in a separate account in their names as agents of the said firms or any one of them, nor were they the transferees of or successors to those businesses.
* * * * * It is also not possible to say that the bank '.
I) was a person from whom any amount of money was due ' to any one of the aforesaid firms who were the dealers in respect of the arrears of tax.
That being the position, the very first condition necessary for the application of section 39 is totally wanting in this case.
" The facts of the present case appear to be on all fours with the facts in the Gujarat case cited above.
The High Court clearly held that the fact of the assignment was to create a valid title in the trustees and once the title passed to the trustees on the registration of the trust deed, the trustees could not be said to hold the properties which vested in them either on behalf or on account of the settlors.
Mr. Ram Reddy relied on section 17(1) of the Andhra Pradesh General Sales Tax Act which runs thus: "17.
(1) The assessing authority, may at any time or from time to time, by notice in writing (a copy of which shall be forwarded to the dealer at his last address known to the assessing authority) require any person from whom money is due or may become due to the dealer, or any person who holds or may subsequently hold money for, or on account of the dealer, to pay to the assessing authority either forthwith if the money has become due or is so held within the time specified in the notice (but not before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the dealer in respect of arrears of tax, penalty or fee or the whole of the money when it is equal to or less than that amount.
" Particular reliance was placed on the words underlined in the section in order to contend that even if the trust was a valid document the (1) 17 S.T.C. 29, 34.
333 trustees would be deemed by virtue of section 17 to hold the money for A or on account of the dealer.
This contention is clearly negatived by the decision of the Gujarat High Court in Sampatrai Chhogaiaiji 's case (supra) which we have cited above and which, in our opinion, lays down the correct law on the subject.
It is obvious that the object of section 17 of the Andhra Pradesh General Sales Tax Act is to follow up the money due to the Sales Tax Department in the hands of either the assessee or any person who may be holding the money on behalf .
of the assessee.
The section, however, does not empower the Sales Tax Department to follow the money in the hands of a bona fide f transferee from the assessee even before the dues have accrued.
There 1 can be no doubt that the Sales Tax Authorities had the power to determine in a summary fashion as to whether or not the petitioners , were holding the monies on behalf of the assessee, but the enquiry would be limited to this question only and cannot be projected further.
Where a transfer is made by the assessee after the assessment order has been passed against him in favour of persons who are either relatives or friends of the assessee and the said transfer prima facie appears to be colourable or fraudulent, it is open to the Sales Tax Department to ignore such a transaction and proceed against the transferee on the basis that the transaction is a sham one and no section `title has in fact passed under the transfer.
But this is quite different from proceeding against a transferee who has acquired an independent title under the transfer even before the assessment is made against . the transferor.
The Sales Tax Authorities under section 17 of the Andhra Pradesh General Sales Tax Act can only determine the jurisdictional facts and cannot proceed beyond that.
In Katikara Chintamani Dora & Os.
vs Guntreddi Annamnaidu & Ors(1) it was ruled by this Court that a Tribunal possesses the power to determine a jurisdictional fact which gives the jurisdiction or empowers the Tribunal to try a certain issue.
This, however, does not empower the Tribunal to be a judg in its own cause and determine or decide complicated questions of title.
In the special and peculiar facts of the present case which have been catalogued above, in our opinion, this is not a fit case In which the sales tax authorities can be allowed to hold that the deed of trust executed by the settlors was hit by section 53 of the .
It may be noted that under section 53 of the if a transfer is made with intent to defeat or delay the creditors it is not void but only voidable.
If the transfer is voidable, then the ' sales tax authorities cannot ignore or disregard it but have to get it set aside through a properly constituted suit after impleading necessary parties and praying for the desired relief.
In Chutterput Singh & ors.
vs Maharaj Bahadoor and others,(2) the Privy Council observed as follows: "No issue was stated in this suit whether the transfers were or were not liable to be set aside at the instance of Dhunput under section 53 of the Transfer for Property Act, and no decree has been made for setting them aside.
Such an (1) ; (2) L.R. 32 I.A. 1.
7 L522SCI/76 334 issue could be raised and such a decree could be made only in a suit properly constituted either as to parties or other wise.
" To the same effect is the later decision of the Privy Council in Safer Hasan and others vs Farid Ud Din and others,(l) where Lord Thankerton made the following observations: "Further, under section 53 the wakfnama would only be voidable at the option of the "person so defrauded or delayed".
Until so voided the deed remains valid.
" Lastly it was contended by counsel for the respondent that the liability of the appellant arose as early as 1966 67 and the Trust Deed came into existence on September 16, 1968.
This being the case, it was stressed that Itikala Kollayya and the trustees could not be unaware of the tax liability or the amount due at that time when the trust deed was executed.
This tax liability was the first charge on the property and its sale proceeds.
Therefore, the creation of the deed and subsequent sale of the property on January 10, 1971, for liquidation of the supposed debts of the trustees and other creditors was merely a device to evade the payment of arrears of sales tax due to the Government.
Our attention has been invited in this connection v to the order dated November 13, 1972, of the Deputy Commercial Tax officer.
The contention is devoid of force.
As rightly pointed out by Mr. Bhandare, when the impugned notice dated July 20, 1970, was issued to M/s. Uma Traders with copy to Itikala Kollayya Setty by the respondent, the tax had not been quantified; the assessments.
were made subsequently.
So long as the tax had not been assessed and qualified, it could not be said that any specific debt due to the Revenue from the assessee had come into existence.
The question of such a non existent debt, being a first charge on the property at the date of the execution of the trust deed, did not arise.
The contention of the respondent on this scone is, therefore, overruled.
In this view of the matter, we feel that it cannot be said in the present case that the trust deed executed by the settlors is prima facie fraudulent or a colourable transaction.
It will, however, be open to the Sales Tax Authorities to avoid the document by bringing a properly constituted suit, if so advised.
We could also like to make it clear .
that any observation regarding the validity of the document that has l been made in this case by us will be confined only to the materials that have been placed before us and will not prejudice the merits of either party in a suitable action which may be brought.
For these reasons the appeal is allowed, the judgment of the High Court is set aside and the notices issued by the respondent against the appellants are hereby quashed.
We would ,however, direct that the sum of Rs. 31,100/ which has been deposited by the appellants in Union Bank.
Kurnool, under the directions of this Court, would not be refunded to the appellants before the expiry of three months from to day 's date.
In the circumstances of this case, we make no order as to costs in this Court.
P.H.P. Appeal allowed.
(I) A.I.R.1946 P.C. 177.

summary:
Kollayya and Narasimaiah carried on business in partnership.
The firm incurred huge losses and was dissolved in 1963.
Kollayya 's son Bala and Bala 's son B.V.S. Rao carried on joint Hindu Family business.
B.V.S. Rao applied, being a minor, through his father Bala, for registration which was granted by the Sales Tax Authorities.
There after, Sales Tax Authorities continued to make assessment in the name of B.V.S. Rao from the year 1966 to the year 1969.
Although B.V.S. Rao informed the Sales Tax Department that the business was in fact carried on by the Joint Hindu family yet no assessment was made in the name of Joint Hindu family until 1971.
Although B.V.S. Rao informed the Sales Tax Department that his business had come to an end and that the business was carried, on by his grand father Kollayya, yet the Sales Tax Department neither cancelled the registration of B.V.S. Rao nor issued fresh notice to Kollayya.
In September, 1968, Kollayya and Narasimiah the partners of the dissolved firm executed a registered deed of Trust by which certain properties were vested in the Trustees for the purpose of paying off the creditors mentioned in the Trust Deed who had obtained decrees against the settlors.
In the year , 1971 assessments were made against the Joint Hindu Family and penalties were also imposed for not paying the sales tax.
All the assessments prior to the year 1971, were made in the name of B.V.S. Rao.
Since the Sales Tax Authorities could not recover the monies from the assessees they issued noticed under section 17(1? of the Andhra Pradesh General Sales Tax Act to the appellants who were the trustees of the said trust on the ground that the trust was void and fraudulent.
A writ petition filed by the appellants in the High Court for quashing the said notices was dismissed by the High Court on the ground that the deed of trust was fraudulent and had been executed.
to defeat the sales tax dues.
On an appeal by special leave it was contended by the appellants: (1) The moment the trust deed was executed by Kollayya and Narasamaiah the title to those properties vested in the trustees and thus it was beyond tho reach of the Sales Tax Department.
(2) When the impugned notice was issued in 1970, tax had not been quantified since the assessments were made subsequently.
lt was contended by the respondents that (1) Kollayya must be deemed to have knowledge as the Karta of the Joint Hindu Family that he had incurred sales tax liability.
(2) Under section 17(1) of the Act.
the Sales Tax Authorities could realise the sales tax dues even from the trustees and the execution of the trust deed would not stand in the way of the recoveries.
(3) The trust is hit by section 53 of the Transfer of Property Act, being made with the intent to defeat or delay the creditors.
326 (4) The liability of the appellants arose as early as in 1966 67 and the trust deed came into existence in September, 1968.
Kollayya and trustees, therefore, could not be unaware of the tax liability.
The creation of the trust subsequently was, therefore, a device to evade the payment of arrears of sales tax.
Allowing the appeal by special leave, ^ HELD: (1) The Sales Tax Department as also the High Court have held in a very summary fashion that the trust deed was void and fraudulent without considering the real point of law which arose on the admitted facts.
[329 A] (2) The moment the trust deed was executed the trustees acquired an independent title under the Trust.
The trust deed clearly mentioned the names of the creditors to whom the money was to be paid.
Under the trust, the settlors did not reserve any advantage or benefit for themselves.
There is no material to how that the decrees obtained by the creditors were collusive and the trust deed was executed before the assessment orders against the Joint Family were made and, therefore.
there was no real debt due from the settlors when the trust was executed.
[329A D] (3) The present trust cannot be said to be unlawful within the meaning of section 4 of the Indian Trust Act, 1882, since the trust is neither forbidden by law nor does it defeat any legal provision nor can it be said to be fraudulent ex facie.
[330D E] Whether the trust deed has been executed with the intent to defeat or delay the creditors within the meaning of section 53(1) of the transfer of Property Act depends on the intention of the settlors depending mainly on the facts and circumstances of the case.
The mere preference of one creditor to another by itself does not lead to the irresistible inference that the intention was to defeat the other creditors.
[331C E] Musahar Sahu and another vs Hakim Lal and another L.R. 43 I.A. l04: Ma Pwa May and another vs section R. M. M. A. Chettiar Firm AIR 1929 P.C. 279, 281 and Sampatrai Chhogalalji and others vs V. section Patel, Sales Tax Officer and others 17 S.T.C. 2r9, 34, approved.
(4) once the trust is held to be valid the department cannot proceed against the trustees under section 17(1).
The section does not empower the Sales Tax Department to follow the money in the hands of a bonafide transferee from the assessee even before the dues are accrued.
The Sales Tax Authorities under section 17 can only determine the jurisdictional.
facts and cannot proceed beyond that.
The authorities cannot be a judge in its own cause and determine or decide complicated questions of.
title.
[333C E] Katilkara Chintamani Dora & ors.
vs Guntreddi Annamanaidu & Ors. ; followed.
In the present case the Sales Tax Authorities cannot be allowed to hold that the deed of trust executed by the settlors was hit by section 53 of the Transfer of Property Act.
Even if a transfer is made with intent to defeat or delay the credit ors it is not void but only voidable under section 53.
If the transfer is voidable the Sales Tax Authorities cannot ignore or disregard it but have to get it set aside through a properly instituted suit after impleading necessary parties and praying for the desired relief.
[333F G] Chutterput Singh & Ors.
vs Maharaj Bahadoor and others L.R. 32 I.A. I and Zafrul Hasan and others vs Farid Ud Din and others , approved.
(5) So long as the tax had not been assessed and quantified it could not be said that any specific debt due to the Revenue from the assessee had come into existence.
The question of such a non existent debt, being a first charg on the property at the date of the execution of the Trust Deed did not arise.
[334E F]


judgement:
Civil Appeal No. 292 of 1973.
(Appeal by special leave from the judgment and order dated the 25 4 1972 of the orissa High Court of Judicature at Cuttack in O.J.C. No. 82 of 1968).
section N. Andley and A. Subbarao for the appellant.
M. C. Bhandare and B. Parthasarathi for respondent No. 3.
M/s. section N. Prasad and Girish Chandra for respondent No. 4.
The Judgment of the Court was delivered by E UNTWALIA, J.
The appellant in this appeal by special leave is Shri D. D. Suri an erstwhile member of the Indian Administrative Service in the cadre of the State of Orissa.
Shri A. K. Barren, I.A.S. the Chief Secretary to the Government of orissa at the relevant time was impleaded as respondent No. 1.
He died during the pendency of this appeal.
Therefore, his name is directed to be expunged.
For the sake of convenience, however, he will be referred to hereinafter in this judgment as respondent No. 1.
Shri section K. Ghosh, l.
P.S. respondent No. 2 was at the relevant time Director of Vigilance and Additional Secretary to the Government of orissa in the Political and Services Department.
He has since retired and no notice of this appeal could be served on him.
Even so the appeal proceeded to hearing as for the disposal of this appeal, his appearance was not necessary.
The State of orissa is respondent No. 3, and the Government of India is respondent number 4.
Respondents 5 and 7 are other officers of the Government of Orissa.
It is an unfortunate protracted litigation with a chequered history.
Yet we do not find it possible to bring it to conclusion by our judgment.
The appellant was appointed to the Indian Administrative Service and joined as an Additional District Magistrate in the State of orissa in November, l950.
According to his case due to some actions which he took against some big political persons, he incurred their displeasure 352 in the year 1952.
Sometime after he came on deputation to the centre but went back to orissa in April, 1965.
At the relevant time in the year 1967 he was serving as Commissioner of Land Reforms orissa.
According to his case he had disputes, differences and animosity with respondent No. 1 and later with respondent No. 2 also.
The appellant by stating very many facts, which are not necessary to be enumerated in this judgment endeavoured to make out a case of male fides against respondents 1 and 2 and asserted that he was put to trouble and unwarranted and illegal actions were taken against him by or at the instance of respondents 1 and 2.
A First Information Report was lodged and Sambalpur Vigilance P.S. Case No. 23/1967 was instituted against the appellant on November 24, 1967 under section S(2) of the Prevention of Corruption Act, 1947.
An application for search warrant was made before the Additional District Magistrate, Sambalpur on the same date i.e. 24 11 1967 and a search warrant was issued.
The appellant 's house at Cuttack was searched on and after 27 11 1967.
An order of suspension was made against the appellant by the Government of orissa on the 28th November, 1967 under Rule 7(3) of the All India Services (Discipline and Appeal) Rules, 1955 hereinafter referred to as the Rules.
The appellant filed a writ petition (OJC 82/1968) in the orissa High Court in January, 1968 to challenge the order of suspension and the investigation made and proceeded against him.
The writ application was dismissed by the orissa High Court in limine.
Civil Appeal No. 679/70 filed by special leave against the order of the orissa High Court was allowed by this Court on 22 l0 1970.
The writ application was directed to be admitted and disposed of in accordance with law.
Certain subsequent developments and events are necessary to be noted.
The State Government moved the Central Government on November 23, 1968 after stating the facts in detail to accord sanction for prosecution of the appellant as the materials collected during investigation revealed a prima facie case in relation to the charges of cor ruption and misuse of his official position by the appellant.
In spite of reminders the Central Government neither accorded sanction for the prosecution of the appellant nor refused it.
Without sanction of the Central Government no Charge Sheet could be submitted against the appellant for his prosecution so long he remained in government ser vice.
It seems.
however, that the appellant was compulsorily retired by the appropriate government on June 9, 1971.
Thereafter on November 8, 1971 Charge Sheet was submitted against him in the Court of the Special Judge, Sambalpur.
In Transfer Petition No. 2/73 this Court transferred the case to the file of another Special Judge.
On the splitting up of the original case the trial of several cases proceeded against the appellant in the Court of the Special Judge.
The trial concluded but because of the stay order passed by this Court, judgment could not be delivered until the disposal of this appeal and LPA 3/73 pending in the Delhi High Court.
Against the order of compulsory retirement, the appellant fired a writ petition in the Delhi 353 High Court.
It was dismissed by a learned single Judge on November 16, 1972.
LPA 3/73 is directed against the said order of dismissal A Bench of the orissa High Court by its order dated the 25th April, 1972, the order under appeal, has again dismissed the writ petition (OJC 82/1968) as being infructuous.
It has taken the view that since the appellant has already retired from service he is no longer under suspension.
Therefore, the legality of the suspension order is not necessary to be examined.
Nor did the High Court think it necessary to examine the legality of the investigation against the appellant as Charge Sheet had already been submitted.
Mr. section N. Andley, learned counsel for the appellant asked us to quash the suspension order and strenously urged the following three grounds: (1) That it was passed without taking the various preliminary steps of prelirninary enquiry or investigation as was necessary to be done in view of the various governmental instructions.
D (2) That the order was not warranted by and was in violation of Rule 7(3) of the Rules.
(3) That the charges levelled against the `appellant were all baseless, frivolous and false.
They were levelled and the suspension order was made mala fide.
In support of the first submission our attention was drawn to the various executive instructions issued by the Central Government as also the State Government of orissa to show as to how and in what manner preliminary steps had to be taken and enquiry made by the governmental authorities concerned before putting a government servant and especially a member of the Administrative Service under suspension.
Counsel submitted that nothing was done in accordance.
with those instructions before the lodging of the First Information Report on November 24, 1967.
The action was taken male fide in all haste without observing the requirements of the law as contained in the executive instructions.
On the other hand, Mr. M. C. Bhandare, counsel for the Government of orissa pointed out that the Vigilance Department of the state Government had made preliminary enquiries and then taken action.
We do not consider it necessary to discuss in any detail or record any definite finding one way or the other in respect of this bone of contention between the parties.
We may only observe that all instructions contained in the various letters and circulars of the Central Government do not seem to have been strictly followed.
But that will not invalidate or nullify the order of suspension made under Rule 7(3) of the Rules.
In dealing with the. cases of high officers of the Administrative Service, care ought to have been taken to follow the instructions as far as possible.
Yet on the facts of this case we are not prepared to hold that failure to follow the instructions fully, per se, made the order of suspension invalid.
354 Sub rule 1 of Rule 7 of the Rules provides for the placing under suspension a member of the service against whom any disciplinary proceeding has been initiated.
Under that sub rule without the initiation of the disciplinary proceeding an order of suspension could not be made.
Under sub rule 2 a member of the service who is detained in official custody for a period longer than 48 hours is to be deemed to have been suspended by the government concerned.
We shall now read sub rule 3 of Rule 7.
"A member of the Service in respect of, or against whom.
an investigation, inquiry, or trial relating to a criminal charge is pending, may, at the discretion of the Government under which he is serving, be placed under suspension until the termination of all proceedings relating to that charge, if the charge is connected with his position as a Government servant or is likely to embarrass him in the discharge of his duties or involves moral turpitude.
" Under the sub rule aforesaid it is clear that a member of the service can be placed under suspension if against him an investigation, inquiry or trial relating to criminal charges is pending.
The expression 'investigation ', 'inquiry ', or 'trial ' are well known in the realm of the criminal law under the Code of Criminal Procedure.
In the instant case when a First Information Report was filed against the appellant and steps were taken for obtaining a search warrant for the search of his house, investigation within the meaning of Rule 7(3) became pending on and from November 24, 1967.
The suspension order, therefore, made on November 28, 1967 was well within the ambit of the power of the government under the said provision of law.
Most of the charges levelled against the appellant, and at this stage, we do not know whether they were right or wrong, true or false, were in relation to his alleged acts of corruption and misuse of his official position.
In our view the making of the suspension order against the appellant under rule 7(3) of the Rules was legal and valid.
But did It come to an end, if so, when ? The rule provides that the suspension order may last "until the termination of all proceedings relating to" the charges.
Appellant 's counsel submitted that, as mentioned in one of the letters of the State Government to the Central Government, the investigation was complete on November 23, 1968, hence on the termination of the investigation the suspension order terminated.
We have no difficulty in rejecting this argument as unsound.
Under rule 7(3) the suspension order can be made to continue until the terminanation of all proceedings viz. investigation, inquiry or trial which may follow the investigation.
Strictly speaking, the investigation could not be said to be complete until the submission of the Charge Sheet.
Factual completion of the investigation in November, 1968 did not terminate all proceedings in relation to the charges levelled against the appellant.
But obviously the suspension order came to an end by the compulsory retirement of the appellant.
After retirement from ser vice he could no longer be deemed to be under suspension.
355 During the hearing of the appeal and in view of certain new stands A taken in the petition filed in this Court by the appellant, an interesting point cropped up and that is this.
What was the effect of the appellant 's compulsory retirement on his suspension ? He was not prosecuted before his retirement.
What is to be the effect of his retirement on the appellant 's pay and allowances for the period of his suspension viz. between November 28, 1967 and June 9, 1971.
Does rule 9 of the Rules cover the appellant 's case '? ' If so, is he entitled to an order in his favour for paying him full pay and allowances for the said period because he was made to compulsorily retire without any stigma and not by way of punishment ? We did not feel persuaded to decide this aspect of the matter for the first time in this appeal.
Since we are remitting the case back to the High Court, we permit the appellant to raise this point there, if necessary, by amendment of his writ petition.
We may, however, hasten to add that the counsel for the State of orissa assured us that if the appellant would be exonerated of the charges levelled against him and acquitted in the criminal proceedings, then the State Government will pay him his full pay and allowances for the period of his suspension.
Evidence at the trial is over and only the judgment has to be delivered.
Without the aid of the judgment in the criminal cases, we did not find it advisable or possible to decide the third point urged on behalf of the appellant.
On the materials in the records of this case, it will not be possible to say that the charges levelled against the appellant were false and that action was taken against him mala fide.
The two matters are so interwoven and interconnected that we think it expedient to leave the matter for a fresh decision by the High Court after the judgment is delivered at the criminal trial which is already concluded.
We vacate the order of stay made by this Court and direct the Trial Judge to deliver his judgment without any further delay.
The High Court, if necessary, will go into the question of mala fides when the case goes back to it on remand and it will do so taking note, inter alia, of the judgment in the criminal cases.
Nothing we have said in this judgment is meant to prejudice either party in the disposal of the letters patent appeal pending in the Delhi High Court in which the appellant is persuing his challenge to the order of his compulsory retirement.
But it will be desirable, may, necessary to dispose of LPA 3/1973 pending in the Delhi High Court at a very early date so that the judgment may be made use of by .
either party, if necessary, in the orissa High Court in aid of the disposal of the case being remitted back by us to that court.
In the result we allow this appeal, set aside the order of the High Court, remit the case back to it for fresh disposal in the light of this judgment.
We make no order as to costs.
P.H.P. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant was an erstwhile member of the Indian Administrative Service in the cadre of the State of orissa.
At the relevant time in the year 1967, he was serving as Commissioner of Land Reforms, orissa.
According to the appellant he had disputes, differences and animosity with respondent No. 1, the Chief Secretary to the Government of orissa and respondent No. 2 who was at the relevant time Director of Vigilance and Additional Secretary to the Government of orissa.
The First Information Report was lodged against the appellant under section S(2) of the Prevention of Corruption Act, 1947, on 24 11 1967.
The appellant 's house was searched on 27 11 1967.
An order of suspension was made against the appellant by the Government of orissa on 28 11 1967 under rule 7(3) of the All India Services (Discipline and Appeal) Rules, 1955.
The Writ Petition filed by the appellant against his order of suspension and investigation was dismissed by the High Court in limine.
This Court allowed an appeal filed by special leave by the appellant against the High Court judgment and directed the High Court to admit and dispose of the petition in accordance with law.
The State Government approached the Central Government to accord sanction for prosecution of the appellant.
In spite of reminders, the Central Government neither accorded the sanction nor refused it.
Appellant was compulsorily retired by the Government in 1971.
Thereafter, charge sheet was submitted against him in the Court of the Special Judge, Sambalpur.
The trial concluded but because of the stay order passed by this Court judgment could not be delivered.
Against the order of the compulsory retirement, the appellant filed a writ petition in the Delhi High Court which was dismissed by a learned single Judge and against which a Letters Patent appeal is pending.
The orissa High Court dismissed the writ petition of the appellant on the ground of it having become infructuous since the appellant was no longer in suspension since he was compulsorily retired.
The High Court also did not think it necessary to examine the legality of the investigation against the appellant as chargesheet had already been submitted.
In an appeal by special leave the appellant contended: The suspension order may be quashed on the following grounds: (1) It was passed without following the various Governmental instructions on the point.
(2) The order was in violation of rule 7(3).
(3) The order was malafide.
^ HELD: (1) It is true that all the instructions contained in the circulars issued by the Central Government do not seem to have been strictly followed.
That would, however, not invalidate or nullify the order of suspension made under rule 7(3).
In dealing with the cases of high officers of the Administrative Service care ought to have been taken to follow the instructions as far as possible.
On the facts of the present case.
however.
failure to follow the instructions fully, does not render the order of suspension per se invalid.
[353GH] (2) Under rule 7(3) a member of the Service in respect of or against whom an investigation, enquiry or trial relating to a criminal charge is ponding, may at the discretion of the Government be Placed under suspension.
The 351 expression investigation, enquiry and trial are well known in the realm of the A criminal law under the Criminal Procedure Code.
In the present case, the First Information Report was lodged and the search warrants were issued before the suspension orders were passed.
Most of the allegations against the appellant were in relation to his alleged acts of corruption and misuse of his official position.
Whether the allegations are true or false is irrelevant.
Order under rule 7(3) was, therefore, legal and valid.
[354A E] (3) The suspension order came to an end by the compulsory retirement of the appellant.
After retirement from service he could no longer be deemed to be under suspension.
Since we are remitting the case back to the High Court we permit the appellant to raise the question of his salary and emoluments during the suspension period to be raised in the High Court.
The counsel for the appellant, however, assured this Court that if the appellant would be exonerated of the charges levelled against him and acquitted in the criminal proceedings the State Government would pay him his full pay and allowances for the period of suspension.
[354G H, 355B C] (4) We do not think it advisable to decide the point of malafide in the absence of the judgment in the criminal cases.
Since the two matters are so interwoven and interconnected that it would be expedient for the High Court to decide this issue after the judgment is delivered in the criminal trial.
[3 55D E]


judgement:
Civil Appeal No. 699 of 1975.
From the Judgment and order dated 10 2 1975 of the Allahabad High Court in Election Petition No. 45 of 1974.
J. P. Goyal, section P. Singh and G. section Chatterjee for the appellant.
section N. Misra, K. C. Agarwala, M. M. L Srivastava and E. C. Agarwala, for the respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This is an appeal against the judgment of section Malik, .J.
Of the Allahabad High Court who was assigned as an Election Judge to hear the election petition filed by the appellant in the High 310 Court.
The election petition was filed by the appellant who was one of the ten candidates for the membership of the U.P. Legislative Council from Basti cum Gorakhpur Local Authority Constituency.
The results of the aforesaid election were declared on April 30, 1974 and the appellant filed the election petition ill the High Court on July 8, 197,4 praying that the election of respondent No. 1 be declared void and that the appellant be declared to be duly elected.
The election petition was placed for hearing before the learned Judge after he was assigned as a Judge to hear the election petition by the Chief Justice and the learned Judge framed 20 issues in the case.
Issue No. 8 related to the question as to whether the election petition had been properly presented and was within time.
As Issue No. 8 related to the maintainability of the petition on the point of limitation, the learned Judge took up this matter as a preliminary issue, and after hearing the parties he held that the petition having been filed beyond time merited dismissal under s.86(1) read with s.81(1) of the Representation of the People Act, 1951.
The election petition of the appellant was accordingly dismissed by the High Court by its order dated February 10, 1975 and it is against this order that the present appeal has been preferred in this Court.
The facts of the case lie within a very narrow compass.
It is not disputed that the results of the election were declared on April 30, 1974 and normally the election petition should have been filed in the High Court within 45 days from this date.
Accordingly the period of limitation expired on June 14, 1974.
The petition was, however, presented before the Registrar on July 8, 1974.
The appellant relied on the fact that he was not in a position to file the petition in the High Court on June 14, 1974 because the High Court was closed for the summer vacation and as the High Court was observing a closed holiday the appellant was entitled to file the petition of the re opening which was July 8, 1974 and accordingly he filed the petition on that day.
The appellant, therefore, claimed that his petition was not time barred in view of the provisions of section 10 of the which would apply to this case.
The learned counsel for the appellant has reiterated the same argument before us as in the Court below and has submitted that for all intents and purposes the summer vacation being a closed holiday according to the notification issued by the High Court, the appellant was legally entitled to file the petition only on July 8, 1974 when the High Court re opened.
The learned Judge of the High Court rejected the contention of the appellant on two grounds.
In the first place the learned Judge thought that the matter was clearly covered by the decision of this Court in Hukumdev Narain Yadav vs Lalit Narain Mishra.(l) Second by, the learned Judge was of the opinion that although the High Court was closed for the summer vacation, the office of the High Court was open and the Registrar was available for entertaining any petition of an urgent nature which was filed by any petitioner and the Vacation (1) [1974]3 S.C.R. 31.
311 Bench also functioned during the vacation.
In these circumstances he learned Judge thought that there was no justification for the appellant to have waited till the re opening of the High Court in order to file the election petition.
Mr. section N. Misra appearing for the respondents more or less supported the view taken by the learned Judge and he also put forward certain additional arguments which will be dealt with later.
After having heard the arguments of the parties and going through the record, we find that the view taken by the learned Judge is legally erroneous.
The learned Judge appears to have drawn an analogy from the facts in the case of Hukumdev Narain Yadav (supra) which appear to be clearly distinguishable from the facts of the present case.
In the case of Hukumdev Narain Yadav this Court was not called upon to consider the legal significance of the Court having been closed due to summer vacation, but was considering a case where the Court was undoubtedly open but the petition was filed on the Monday instead of the previous Saturday which though a working day of the Court was not a day on which the Judges were usually sitting.
Secondly the learned Judge appears to have completely overlooked the provisions of section l0 of the , particularly in view of the fact that this Court has held that sections 4 or 5 of the Limitation Act did not apply to election petitions.
To begin with we would first deal with the case of Hukumdev Narain Yadav (supra).
What had happened in that case was that the election petition was filed on March 20; 1972 instead of being filed on Saturday March 18, 1972 which was the last day on which the limitation expired.
The election petitioner sought to cross the bar of limitation on the ground that Saturday not being a working 1 day of the Court, the petitioner was entitled to file the petition on the next working day, namely, Monday.
This Court on a consideration of various factors negatived this contention and held that even though the Judges of the High Court did not usually sit on Saturdays it was undoubtedly a working day of the Court and it could not be said that the Court was observing a closed holiday on Saturday.
After referring to a large number of decisions and traversing various provisions of the Limitation Act, this Court observed as follows: ". for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law. .
For all these reasons we have come to the conclusion that the provisions of section 5 of the Limitation Act do not govern the filing of election petitions or their trial, and in this view, it is unnecessary to consider whether there are any merits in the application for condonation of delay." This Court accordingly held that section 4 as also section S of the Limitation Act had no application to the election petitions on the true interpretation of section 29(2) of the Limitation Act.
The Court also held on a 312 reading of rr.
6 & 7 with r. 26 of the Patna High Court Rules that even though the Judges were not sitting on Saturdays the election petition could be presented on a Saturday to the Registrar or other officers as envisaged by r. 26 of the Patna High Court Rules.
In the instant case, however, the period of limitation provided by section 81(1) of the Representation of the People Act appears to have expired during the summer vacation which according to the notification of the Allahabad High court was declared to be a closed holiday.
By virtue of the notification of the Allahabad High Court dated September 22, 1973 when the High Court Calendar for 1974 was approved by the Court after inviting objections from the members of the public, a list of days had been mentioned to be treated as closed holidays.
The last part of this notification runs thus: "List of days to be observed as closed holidays in the High Court of Judicature at Allahabad during the year 1974.
Name of holidays Dates on which they fall Days of Number of the week days According to According to Gregorian Indian Calen Calendar dar saka era 1 3 4 5 Summer Vacation May 25 to Jyaistha 4 to Saturday 44 July 7.
Asadha 11, 1896 to Sunday .
In view of this notification, therefore, the legal position would be that the sunder vacation, namely, the period starting from May 25 and ending on July 7, 1974, would be deemed to be close holidays in the High Court.
Thus it follows that June 14, 1974, which fell within this period would also be a closed holiday.
If, therefore, the period of limitation under section 81 of the Representation of the People Act expired on June 14, 1974 which being a closed holiday right upto July 7, 1974, then section l0 of the would apply in terms and the appellant would be fully justified in filing the petition on July 8, 1974 when the Court re opened after the summer vacation.
The relevant portion of section l0 of the runs thus: "10.
(1) Where, by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any, Court or office on a certain day or within a prescribed period, when, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be ' considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877, applies.
" 313 Analysing the section it would appear that the following conditions must be satisfied before a litigant may take advantage of the protection of s 10 of the .
(1) that any act or proceeding is allowed to be done or taken in any court or office on a particular day or within a prescribed period; (2) that if the court or office is closed on that day or the last day of prescribed period then the act or proceeding will be deemed to have been taken in due time if it is done or taken on the next day afterwards on which the Court or office is open.
The proviso to section 10 makes these provisions inapplicable to cases where the Limitation Act applies.
In the instant case which arises out of the election petition it is manifest from the judgment of this Court on Hukumdev Narain Yadav (supra) that the provisions of sections 4 and S of the Limitation Act do not apply.
It is also clear from the notification of the High Court referred to above that the entire period of the summer vacation starting from May 25 to July 7, 1974, was a closed holiday.
Thirdly the period of limitation prescribed by section 8(1) of the Representation of the People Act expired on June 14, 1974 during the summer vacation.
In these circumstances the inescapable conclusion would be that section 10 of the would apply in terms and the appellant would be entitled to file the election petition on July 8, 1974 as he did.
In H. H. Raja Harinder Singh vs section Karnail Singh(l) while interpretating section 10 of the , this Court pointed out the necessary conditions that are required to invoke section 10 and held that section 10 clearly applied to election petitions.
In this connection this Court observed as follows: "Where, therefore, a period is prescribed for the per formance of an act in a court or office, and that period expires on a holiday, then according to the section ' the act should be considered to have been done within that period, if it is done on the next day on which the court or office is open.
For that section to apply, therefore, all that is requisite is that there should be a period prescribed, and that period should expire on a holiday.
We entertain no doubt that the legislature has used both the expressions as meaning the same thing, and there are accordingly no grounds for holding that section l0 is not applicable to petitions falling within Rule 119.
We are also unable to read in the proviso to section 37 of the Act an intention generally to exclude the operation of section l0 of the in the construction of the Rules, as that will be against the plain language of Rule 2 (6) . . . '. . .
The (1) ; 314 operation of such a beneficent enactment as section 10 of the is not, in our opinion, to be`cut down on such unsubstantial grounds as have been urged before us.
We are accordingly of opinion that the petition which the respondent filed on May 18, 1954, is entitled to the protection afforded by that section and is in time.
" In these circumstances, therefore, section 10 of the furnishes a complete answer to the reasons given by the learned Judge in holding that the election petition filed by the appellant in the High Court was barred by time.
Another reason given by the learned Judge was that even though the High Court was closed its office was open and the Registrar was available to receive any election petition.
This reasoning of the High Court fails to consider the distinction between the opening of the Court and opening of the office.
While the Court may be closed, the office may remain open for conducting ministerial business or administrative work.
So far as the election petitions are concerned they are matters of moment and if the power to receive these petitions was delegated to the Registrar by the Rules framed by the Allahabad High Court under the Representation of the People Act, the Registrar must be deemed to exercise a judicial power which could not be exercised when the Court was observing a closed holiday.
It would appear that under the rules framed by the High Court of Allahabad regarding the trial of election petitions, r. 3 required that every election petition shall be presented to the Registrar and r. 4 laid down that after the office report etc.
is complete the petition shall be laid forthwith before the Chief Justice for reference to the Bench concerned.
The learned Judge seems to think that in view of these rules there was no impediment in the way of the appellant in filing the election petition before he Registrar who was available luring the summer vacation even though the Court was closed.
We are, however, unable to agree with this view.
These rules clearly refer to a situation where the Court is open, because the Registrar has to take legal steps, namely, the placing of the petition immediately before the Chief Justice for reference to the Bench concerned and the assignment of a Judge.
This could not be done when the Court was observing a closed holiday.
The presentation before the Registrar as required by r. 3 of the aforesaid rules must be a legal presentation and not a physical presentation.
For instance, if the Registrar visited the High Court on a Sunday or on any public holiday, could it be said that the election petition could be presented to him and the Registrar may be asked to entertain the same.
The answer to this question must obviously be in the negative.
Therefore, the position would be the same if the Court by virtue of the notification issued on September 22, 1973, was observing a closed holiday during the summer vacation.
A similar question appears to have arisen before the Allahabad High Court in a case on appeal to the Federal Court where six weeks time for depositing security money expired during the High Court vacation and the Allahabad High Court clearly pointed out that the mere fact that certain ministerial officers of the 315 Court were available to conduct the routine matters would not indicate that the Court was open.
In this connection the Allahabad High Court in Krishna Dhan Mullick vs Umratul Zohra Begam(l) .
observed as follows: "The six weeks within which security could be deposited expired during the High Court vacation.
If the period expires on a closed holiday, it is not disputed that the time would be excluded in computing the period of six weeks.
This is done under section 10 of the (X of 1897). . .
The fact that the Court for its own convenience deputes certain officers to receive the money does not give them a separate existence and it cannot be urged that while the Court is closed the office is open.
There may be days when the learned Judges are not sitting and yet the Court may not be closed, but if the Court is closed then it cannot be said that the ministerial officers attached to the Court are an office within the meaning of the term in section 10 of the and they have a separate existence from the Court.
" We find ourselves in complete agreement with the observations made by the Division Bench in the aforesaid decision, and in fact this .
clearly brings out the real distinction between the functioning of the office of the High Court and of the High Court itself.
Furthermore, it would appear from r. 10 of Ch.
V of the Allahabad High Court Rules, that this is the only provision which em powers the Vacation Judge to hear certain types of matters.
The rule may be extracted thus: E "10.
(1) Criminal work shall continue to be dealt with during the vacation by such Judges as may be appointed for the purpose by the Chief Justice.
They may also exercise the original and appellate jurisdiction vested in the Court in any miscellaneous matter or any civil matter connected with, relating to, or arising out of, the execution of a decree, which may in their opinion, require immediate attention.
Such jurisdiction may be exercised even in cases which are under the Rules cognizable by two or more Judges, unless the case is required by any other law to be heard by more than one Judge.
G (2) Subject to any general of special order of the Chief Justice, Vacation Judges shall, in the absence of the Chief Justice.
exercise jurisdiction at Allahabad or Lucknow, as the case may be, in connection with the arrangement of Benches, listing of cases and other like matters.
" A perusal of r. 10 would clearly indicate that only criminal work shall continue to be dealt with during the vacation by such judges as (1) I.L.R.[1949] All. 433.
316 may be appointed for the purpose by the Chief Justice.
The second part of r. 10 no doubt gives jurisdiction to the Vacation Judges to entertain other matter, but the rider is that those matters must require immediate attention.
This rule no where empowers the Registrar to entertain or to receive an election petition.
Rule 10 of Chapter V has a very limited scope and does not include election petitions which cannot be said to be cases of a criminal nature or those requiring immediate attention so as to be taken up even when the Court is observing a closed holiday.
It is true, as the learned Judge pointed out, that the office of the High Court was open and the Registrar or the Deputy Registrar etc.
were receiving a number of applications, but the mere fact that such a practice had grown which may not have been strictly justified by the statutory Rules would not have the effect of converting what is legally a closed holiday into a working day.
Similarly as indicated above, this Court in Hukumdev Narain Yadav 's case (supra) was not at all called upon to consider the significance of a closed holiday but was deciding a case where on all accounts the day on which the limitation expired was a working day of the .
Court and where the Court was factually and legally held to be open.
In these circumstances, therefore, the analogy drawn by the learned Judge from that case does not hold good in the facts of the present case.
Mr. section N. Misra appearing for the respondents advanced two contentions before us.
In the first place he drew our attention to r. 3 of Chapter I of the Allahabad High Court Rules, the relevant part of which may be extracted thus: " 'Registrar ' includes (i) the Deputy Registrar at Lucknow, in matters relating to the Lucknow Bench; (ii) the Joint Registrar or any other officer, with respect to such functions and duties of the Registrar as may have been assigned to the Joint Registrar or such officer by the Chief Justice, and (iii)in the absence of the Registrar, the Joint Registrar or any other officer authorized to act on his behalf;" Rule 3 no doubt provides that the Registrar includes the Deputy Registrar and other officers.
Rule 4 of Chapter I would have no application to the present case because this rule applies only to such cases where the period of limitation is prescribed by the Rules.
In r the instant case, be period of limitation is not prescribed by the Rules made by the High Court of Allahabad but by section 81(1) of the Representation of the People Act itself, and therefore this rule can .
not be of any assistance to the respondents. ' It was then submitted that under section 2(1)(h) of the Representation of the People Act, "public holiday" was defined as meaning any day which is a public holiday for the purposes of section 25 of the .
It was contended that as the notification issued by the High Court declared the summer vacation 317 to be a closed holiday it could not be construed as a holiday under s 25 of the and it would not be deemed to be a public holiday of which the appellant could have taken any advantage.
The argument is undoubtedly attractive but on a deeper probe it does not appear to be tenable.
The term "public holiday" referred to in section 2(1) (h) of the Representation of the People Act has nothing to do with any administrative functions exercised by the High Court but refers only to such contingencies as are mentioned in the conduct of the actual elections under the provisions of the Representation of the People Act.
For instance section 39(1)(a) provides thus; 39.
(1) As soon as the notification calling upon the elected members or the members of the Legislative Assembly of a State or the members of the electoral college of a Union territory to elect a member or members is issued, the Election Commission shall, by notification in the official Gazette, appoint (a) the last date for making nominations which shall be the seventh day after the date of publication of the first mentioned notification or, if that day is a public holiday, the next succeeding day which is not a public holiday.
" The word "public holiday" used in section 39(1) (a) would undoubtedly refer to public holiday as defined in section 2 (1) (h) of the Representation of the People Act.
So far as the disposal of the election petitions is concerned, once section 80 confers the power on the High Court to try an election petition, section 2 (1) (h) would have no`application what soever to the trial of such election petition by the High Court which will be governed either according to the Rules framed by the High Court under the Representation of the People Act or under the r general Rules of the High.
Court or in accordance with the Code of Civil Procedure.
This is borne out by section 87(1) of the Representation of the People Act which may be extracted as follows: "87.
(1) Subject to the provisions of this Act and of any rules made there under every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits: Provided * * * * *" In the instant case the High Court having framed the Rules under the Representation of the People Act which provided for the presentation of the election petitions to the Registrar, which as we have held could r only be done on a day which is not a closed holiday, the term "closed holiday" would have to be referred to as defined by the High Court Rules and not by section 2(1) (h) of the Representation of the People Act.
In these circumstances, therefore, the contention of the respondents on this score must be overruled.
H For the reasons given above we are satisfied that as the period of limitation expired during the summer vacation which was a closed 6 5225CI/76 318 holiday by virtue of the notification issued by the High Court, the .
Registrar was not competent to entertain the election petition nor could the appellant have presented the election petition legally to the Registrar during such period.
We are further satisfied that this is a case in which section 10 of the General Clauses, Act applies in terms and the appellant was fully justified in filing the election petition on the re opening day of the High Court, namely, July 8, 1974.
In these B; circumstances the view taken by the High Court that the election t, petition was barred by time is wrong on a point of law, and the finding of the learned Judge on issue No. 8 cannot, therefore, be sustained.
The appeal is accordingly allowed, the order of the High Court dated February 10, 1975, is set aside and the matter is remitted to the learned Judge for trying the election petition in accordance with the law.
In the special circumstances of this case we make no order as to costs in this Court.
V.P.S. Appeal allowed.

summary:
The respondent was declared elected on April 30, 1974, in the election to the State Legislative Council.
The period of limitation of 45 days, prescribed by section 81(1) of the Representation of the People Act, 1951, for filing an election petition, expired on June 14, 1974, when the High Court was closed for the summer vacation.
The appellant, therefore, filed the election petition on July 8, 1974, the re opening day, challenging the respondent 's election.
The High Court dismissed the petition as having been filed out of time.
Allowing the appeal to this Court and remitting the matter to the High Court for disposal on merits.
^ HELD .
The High Court had issued a notification that the entire period of the summer vacation from May 25, to July 7, 1974 was a close holiday, As the period of limitation expired during the summer vacation, which was a closed holiday, the Registrar of the High Court was not competent to entertain the election petition nor could the appellant have presented the election petition legally to the Registrar during such period.
and so, it is a case to which section 10. , applies and.
the appellant was justified in filing the petition on the re opening day.
[312C D; 313D E, 318A B] (1) Under r. 3 of the Rules framed by the High Court under the Representation of the People Act, every election petition shall be presented to the Registrar.
and r. 4 lays down that after the office report is complete, the Registrar shall place the petition forthwith before the Chief Justice for reference to the concerned Bench.
But, from these rules it could not be held that there was no impediment in the way of the appellant in filing the election petition before the Registrar as the office of the High Court was open and the Registrar was available.
even though the Court was closed.
The presentation before the Registrar, required by r. 3, must be a legal presentation and not a mere physical presentation.
If on a day the office is open and only Judges do not sit, it would undoubtedly be a working day of the Court and the election petition could be presented to the Registrar or other officer.
But, if the Court was observing a closed holiday, then the Court is not open even though the office may remain open for conducting ministerial or administrative work.
Rules 3 and 4 refer to a situation where the Court is open, because, the Registrar has to take the legal steps of placing the petition immediately before the Chief Justice for reference to the Bench concerned and the assignment of a Judge.
This could not be done when the Court was observing a closed holiday Hukumdev Narain Yadav vs Lalit Narain Mishra, ; , explained.
Krishna Dhan Mullick vs Umratul Zohra Begam, I.L.R. [1949] All. 433, approved.
(2) (a) Further.
r. 10 of the High Court Rules which is the only provision which empowers vacation Judges to hear matters, has a very limited scope and does not empower the Registrar to entertain or to receive an election petition.
Under the rule normally.
Only criminal work shall continue to be dealt with during vacation, and it is only when other matters require immediate attention 309 that the vacation Judges have jurisdiction to entertain them.
Election petitions A do not come under these two categories, so as to be taken up when the Court is observing a closed holiday.
[315E, H 316B] (b) The mere fact that a practice has grown up of the Registrar or Deputy Registrars or other officers receiving a number of applications, which was not strictly justified by the Rules, would not have the effect of converting what is legally a closed holiday into a working day.
[316B C] (c) Rule 4 of the High Court Rules which provides that 'there any particular number of days is prescribed by these Rules, the same shall be reckoned exclusive of the first day and inclusive of the last day, unless, the last day shall happen to fall on a day on which the offices of the Court are closed, in which case the time shall be reckoned exclusive of that day also and of any succeeding day or days on which the offices of the Court continue to be closed ' cannot be relied upon by the respondent, because, it applies only where the period of limitation is prescribed by the Rules.
[316G] (3) For taking advantage of section 10, , it is necessary that.
(a) an act or proceeding is allowed to be done or taken in any court or office on a particular day or within a prescribed period; and (b) if the Court or office is closed on that day or the last day of the prescribed period then the act or proceeding will be deemed to have been taken in due time if it is done or taken on the next day afterwards on which the Court or office is open.
The proviso to the section makes the section inapplicable to cases where the Limitation Act applies.
In Hukumdev Narain Yadav 's case [19741 3 S.C.R. 31, this Court held that ss 4 and 5, Limitation Act, do not apply to election petitions.
Therefore, section 10, applies in terms to the instant case.
[313A D] H.H. Raja Harinder Singh vs section Karnail Singh, ; , followed.
(4) 'Public holiday ' is defined in section 2(1)(h) of the Representation of the People Act to mean any day which is a public holiday for the purposes of section 25, .
But the term 'public holiday ' refers only to such contingencies as are mentioned in section 39(1)(a) of the Act, in the conduct of the actual elections.
Section 87(1) shows that so far as the disposal of election petitions is Concerned once section 80 confers power on the High Court to try them, section 2(1)(h) would have no application whatsoever to their trial which will be governed either according to the Rules framed by the High Court under the Act, or the general Rules of the High Court, or in accordance with the C.P.C.
In the instant case, the High ` Court having framed Rules under the Representation of the People Act, which provide for the presentation of the petition to the Registrar, which could only be on a day which is not a 'closed holiday ', the term 'closed holiday ' will have to be referred to and not 'public holiday ' defined in section 2(1)(h).
[317B H]


judgement:
Civil Appeal Nos. 1212 and 1213 of 1968.
From the Judgment and Decree dated 2 5 1960 of the Madras High Court in Appeals Nos. 20 and 61 of 1960.
Lal Narain Sinha, Solicitor General, A. V. Rangam and Miss A. Subhashini for the Appellant.
M. Natesan and Mrs. section Gopalakrishnan for Respondents.
GOSWAMl, J.
The only question that arises for consideration in these appeals by certificate of the High Court of Judicature at Madras relates to the quantum of compensation with regard to acquisition of 18.34 acres of land in Mulligoor village, Nilgiris District, belonging to the respondents.
B The land in question was acquired for the purpose of a hydro electric scheme at Kundah.
A Notification under section 4(1) of the 5` Land Acquisition Act, 1894, was duly published on May 1, 1957.
This land was purchased by the respondents ' father by a sale deed (Ext.
B l) of February 22, 1951, for a consideration of Rs. 4218/4/ from the Nilgiris Wattle Plantations Limited.
The rate at which this purchase was made was Rs. 230/ per acre.
The Collector awarded compensation at the rate of Rs. 500/ per acre.
On a reference at the instance of the claimants (respondents herein) the Subordinate Judge raised the compensation to Rs. 1800/ per acre.
The State as well as the claimants appealed to the High Court against the judgment and decree of the Subordinate Judge.
By a common judgment the High Court dismissed the State 's appeal and partly allowed the claimants ' appeal by raising the rate of compensation to Rs. 3000/ per acre.
That is how the two appeals are filed by the State with certificate from the High Court.
The learned Solicitor General appearing on behalf of the State submits that the High Court erred in law in raising the rate of compensation without any basis and merely on speculation.
He particularly draws our attention to an observation of the High Court in the judgment to the effect: ". the Court has necessarily to speculate as to how much the value has increased.
Sometimes the Court is obliged to indulge in fair measure of conjecture in regard to the fixation of values. " However, when we read the entire observation of the High Court with regard to the aspect of compensation we are unable to hold that the High Court based the compensation on mere speculation or conjecture.
The High Court has clearly observed that ". fortunately in this case our decision need not depend upon mere speculation or conjecture as there are materials which as far as possible afford a correct basis for fixing the approximate market value".
The learned Solicitor General next draws our attention to the various sale deeds produced in the case and took objection to the High Court 's placing undue importance on two awards (Exts.
B l0 and B ll) dated September 27, 1956 and March 30, 1957, respectively.
According to the learned Solicitor General these two awards are with regard to land at a place called Kil Kundah about ten miles from the acquired land and cannot be said to be comparable land for the purpose of assessment of compensation.
According to the first award 358 (B 10) the rate per acre was Rs. 3000/ and according to the second one (B 11) the rate awarded was Rs. 5263/ per acre.
He also submits that the Sale deed (Ext.
A 7) of September 27, 1955, which appertains to land in the identical village Mulligoor and which shows the consideration of Rs. 5000/ for one acre of land should not have been taken as a guide in view of the fact that the area was small with a large number of wattle trees and it was a speculative transaction.
There are three other sale deeds which the High Court took into consideration, namely, Exts.
A 8, A 9 and A l0 which were transactions between March 1956 and June 1956.
The land involved in these transactions was situated in Bikatti village about four miles from the acquired land.
The village itself is only 2 to 4 furlongs from Mulligoor.
The rate per acre for these lands in 1956 was Rs. 6000/ .
The learned Solicitor General submits that these lands were sold as house sites and therefore cannot be safe guides for the type of the land acquired.
The learned Solicitor General also objected to the flat rate of Rs. 3000/ granted by the High Court without due regard to the quality or classification of the land.
He points out that even in the award Ext.
B l0 all the lands were not priced at the same rate per acre.
The rates varied from "Rs. 300/ to Rs. 5263/ per acre considering the fertility of the soil of the fields, their location, importance and registration statistics . ".
Even so, the Land Acquisition officer fixed the value of the land at Rs. 3000/ per acre in the said award taking into consideration several sale deeds.
He even fixed Rs. 5000/ per acre for. 30 acres of land having regard to the bona fide sale transaction of a portion of the land covered by the same survey number.
We are unable to accept the submission that the awards in question cannot be taken as safe guides in the matter of determination of compensation.
As a matter of facts these awards given by the Collector are at least relevant material and may be in the nature of admission with regard to the value of the land on behalf of the State and if the land involved in the awards is comparable land in the reasonable proximity of the acquired land, the rates found in the said documents would be a reliable material to afford a basis to work upon for determination of the compensation on a later date.
The awards, therefore, cannot be dismissed as inadmissible for the purpose of determination of the compensation.
Mr. Natesan, learned counsel for the respondents, has taken us through the evidence of the witnesses examined on behalf of the appellant and we find from a perusal of the same that the High Court cannot be said to take an erroneous view when it observed as follows: "But witnesses examined on the side of the Government have admitted that even close to Survey No. 9/1 the acquired land, there are facilities like bus stops, shops etc.
From the evidence it is fairly clear that Mulligoor area is not less prominent than Kil Kundah or Bikatti area Kil Kundah, Bikatti and Mulligoor are within short distance 359 of one another and, it would not be proper to weigh the comparative value of the lands in the locality on delicate scales.
It could reasonably be said that they are all of about equal value".
We are satisfied after examination of the evidence and the documents that having regard to the location, advantages and facilities of the land and to the admitted rise of price of land between the years 1951 and 1957, it cannot be said that the High Court was far wrong in raising the compensation to Rs. 3000/ per acre in this case.
We are also satisfied that the High Court has not departed from any well recognised principles in determining the compensation.
In the result the appeals fail and are dismissed with one set of costs.
C section R. Appeals dismissed.

summary:
In respect of an area of 18.34 acres in Mulligoor village, Nilgiris District belonging to the respondents and acquired by the appellant for the purpose of hydro electric scheme at Kundah in May 1957 the land acquisition officer awarded a compensation of Rs. 500 / per acre as against its purchase price of Rs. 230/ per acre in February 1951; but on a reference the Subordinate Judge raised it to Rs. 1800/ per acre.
On appeals by the Appellant/State and the Respondent/Claimant, while dismissing the State appeal and partly allowing the respondent 's appeal, the High Court of Madras by its common judgment raised the rate of compensation to Rs. 3000/ per acre.
In the two appeals by certificate, the appellant State contended (i) that raising the rate of compensation was without any basis and merely on speculation, (ii) that the rates at which the adjoining lands were sold for house sites cannot be safe guides; (iii) that allowing flat rate of Rs. 3000/ per acre with out due regard to the quality or classification of the land is bad in principles of fixing compensation.
Negativing the contentions of the State and dismissing the appeals, the Court ^ HELD: (1) The awards given by the Land Acquisition Collector are at least relevant material and may be in the nature of admission with regard to the value of the land on behalf of the State and if the land involved in the awards is comparable land in the reasonable proximity of the acquired land, the rates fund in the said documents would be a reliable material to afford a basis to work upon for determination of the compensation on a later date.
The awards can be taken as safe guides.
and are admissible in evidence for the determination of compensation.
[358EF] (2) In the instant case, from an examination of the evidence and the documents and having regard to the location, advantages and facilities of the land and the admitted rise of price of the land between the years 1951 and 1957, it cannot be said that the High Court either departed from any well recognised principle in determining or committed an error in raising the amount of compensation.
[359A B]