judgement:
Appeal Nos. 1298 and 1299 of 1969.
Appeal from the Judgment and Decree dated the 9th Au gust, 1966 of the Punjab and Haryana High Court in Regular First Appeals Nos. 134 and 120 of 1963.
N.H. Hingorani for the Appellant.
O.P. Sharma for Respondent.
The Judgment of the Court was delivered GOSWAMI, J.
These appeals are by certificate of the High Court of Punjab and Haryana.
Civil Appeal No. 1299 of 1969 is concerned with the appellant 's suit for declaration of his dismissal order dated October 21, 1959, as void and illegal.
Civil Appeal No. 1298 of 1969 arises out of his suit for arrears of salary.
Both the matters were heard together in the.
High Court and the judgment out of which Civil Appeal No. 1299 of 1969 arises is the principal judg ment following which a short order was passed by the High Court dismissing the other suit of the appellant for arrears of salary.
The High Court granted certificates in both the appeals.
It will be sufficient to deal with Civil Appeal No. 1299 of 1969 in this judgment as the decision therein will govern the other appeal.
The facts may now be briefly stated: The appellant who was the plaintiff in the court below was appointed as a Clerk in the Patiala State some time in July 1948.
On the formation of the new State of Punjab on November 1, 1956, with the 958 merger of the erstwhile Pepsu and Punjab States the appel lant was integrated in the service of the new State of Punjab as permanent Assistant in the grade of Rs. 150 10 300/ and was actually getting Rs./70/ per month on October 21, 1959, the date of his dismissal in the office of the Financial Commissioner, Punjab.
The appellant instituted a suit in March 1962 challeng ing his order of dismissal dated October 21, 1959, as void and unconstitutional praying for a declaration that he continued to be in service of the Punjab State.
In June 1962 he instituted a second suit as pauper claiming a decree for about Rs. 8,689/ as arrears of his ' salary and allowances and also a further decree for Rs. 278/12/ per mensem from 5.6.1962 to 4.7.1962 and Rs. 290/ per mensem from 5.7.1962 upto the date of the decree.
Both the suits were decreed by the trial court.
According to the plaint, the appellant, due to serious illness of his mother, proceeded from Simla where he was working to Patiala on casual leave on 8th July, 1958, with the.
sanction of the competent authority.
He obtained extension of leave on account of illness of his mother, wife and daughter.
Meanwhile the appellant himself became seriously iII and prayed for leave from 1.11.1958 to 28.2.1959 0n the basis of a medical certificate granted by Dr. Inder Singh Sodhi,, Retired Civil Surgeon, Pepsu, Patia la.
The authorities declined to sanction the leave.
The appellant also.
continued to be seriously ill and was unable to attend his duties.
When he.
recovered he reported for duty at Simla on March 2, 1959 and he was permitted to resume his duty on furnishing.
a certificate of fitness granted by the aforesaid Retired Civil Surgeon.
On January 27, 1959, the appellant was served with a chargesheet by the Financial Commissioner (Development) Punjab asking him to show cause why he should not be dismissed from Government service for his wilful absence from duty after the expiry of the earned leave sanctioned to him upto October 31, 1958, which was described as "misbeha viour".
The chargesheet, inter alia, stated: "(1) .
You deliberately deed the orders and again applied for extension of leave upto the 31st December, 1958 reigning yourself to be iII, and also threatened that in case leave was not allowed, you might be granted interview with the Revenue Minister . " X X X X (2) That on the one hand you have been applying for grant of extension of leave on account of your own illness and on the other, you have requested that you may be allowed to appear in B.A. Examination to be held in April, 1959.
This, therefore, clearly shows that you are not actually ill but are malin gering, and have knowingly defied Government orders.
959 (3) That your wilful absence from duty after the expiry of earned leave sanctioned to you upto the 31st October, 1958, is a misbehaviour".
The appellant submitted his explanation on March 11, 1959.
There was an enquiry by the Deputy Secretary (Development) in May 1959.
He was served with a second show cause notice on August 14, 1959, enclosing the report of the Enquiry Officer.
The appellant submitted his representation to.
the said notice on October 6, 1959.
On October 21, 1959, the Financial Commissioner (Revenue) passed the order of dis missal.
As already stated, two suits were filed by the appellant in 1962.
The Subordinate Judge, First Class, Patiala, decreed both the suits on January 15, 1963.
The State Government appealed to the High Court and the same was allowed on August 9, 1966 and both the suits were dismissed.
That is how these appeals came before us on certificates.
We are concerned in these appeals with only one point which, if it is held in favour of the appellant, will con clude the matter and it will not be necessary to deal with the other questions with reference to the illegalities in the course of the departmental enquiry alleged by the appel lant.
It is submitted on behalf of the appellant that the order of dismissal is invalid on account of violation of Article 311(1) of the Constitution.
The following facts are relied upon by the appellant in order to sustain his submission.
It is admitted by the respondent that the appellant initially joined service in the State of Patiala in 1948 as a Clerk and he was confirmed as an Assistant in the Pepsu Civil Secretariat by an order dated October 31, 1956, of His Highness the Rajpramukh, which is the previous day of the 'appointed day ' under the State Reorganisation Act, 1956.
Thus he was integrated in the new State of Punjab as a confirmed Assistant.
Before his integration in Punjab he was governed by the Patiala and East Punjab States Union Civil Services (Punishment and Appeal) Rules, 1953 (briefly the Pepsu Rules) which were made in exercise of the powers conferred by the proviso to Article 309 of the Constitution.
By a Notification of the Punjab Government No. 976GII 87/2499, dated February 9, 1957, these Pepsu Rules continue to apply as from 1st November, 1956, to the corresponding services, posts and personnel of the new State of Punjab till further orders.
Rule 6 of the Pepsu Rules provides as follows : "6.
Authority to impose punishment.
Subject to the provisions of clause (1) of Article 311 of the Constitution of India, the authorities competent to impose any of the penalties specified in rule 4 upon the persons to whom these rules apply, shall be such as may be prescribed.
by Government in the rules regulating the appointment and conditions of service of such persons".
Dismissal is one of the penalties provided under rule 4 (see rule 4 (vii).
As provided under Rule 6 above men tioned, the Rajpramukh 960 under Article 309 of the Constitution by a notification in the Pepsu Gazette of Juno 27, 1954, made appropriate rules on 14th June, 1954, determining the authorities competent to impose penalties on members of certain services and holders of certain posts in connection with the affairs of the State.
Item No. 14 in the Schedule to these rules mentions "Members of Class III and IV Services in Sectt." and.
the punishing authority for dismissal of such employees is the State Government.
It is, therefore, clear that under the Pepsu Rules which governed his conditions of service the State Government alone was competent to impose the punishment of dismissal.
Under the Pepsu General Clauses Act, 1953, "State Government shall mean, in relation to anything done or to be done after the commencement of the Constitution, the Rajpramukh".
(See section 2(46).
As noted earlier, factually, the appellant was con firmed and necessarily appointed by the Rajpramukh.
Under the Pepsu Rules the Rajpramukh alone was the appointing authority.
The appellant therefore, cannot be removed from service by any authority subordinate to the Governor in Punjab.
The coordinate authority in Punjab is the State Government.
The Governor of Punjab alone, therefore, was competent to pass the order of dismissal of the appellant.
The Financial Commissioner (Revenue) is an authority subor dinate to the Governor.
He was, there, not competent to pass the order of dismissal.
The order of dismissal is violative of Article 311 (1) of the Constitution and is, therefore, invalid and is liable to be struck down.
Mr. Sharma, on behalf of the respondent, submits that there is no violation of Article 311 (1) of the Constitu tion.
The appointing authority for a post held by the appellant in the State of Punjab is the Financial Commis sioner (Revenue).
He submits that the appointing authority of the appellant before his integration into the State of Punjab does not come into the picture.
He adds that this submission of his is in consonance with the provisions of section 116 of the (brief ly the Act).
We may, therefore, read section 116 of the Act: "116(1) Every person who immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the Union or of an existing State in any area which on that day falls within another existing State or a new Part A State or a Part C State shall, except where by virtue or in consequence of the provisions of this Act such post or office ceases to exist on that day, continue to hold the same post or office in the other existing State or new Part A State or Part C State in which such area is included on that day, and shall be deemed as from that day to have been duly appointed to such post or office by the Government of, or other appropriate authority in, such State, or by the Central Government or other appropriate authority in such Part C State, as the case may be 961 (2) Nothing in this section shall be deemed to prevent a competent authority, after the appointed day, from passing in relation to any such person any order affecting his continuance in such post or office".
Mr. Sharma submits, relying upon the provisions of section 116(1), that since the appointing authority for an Assistant in the State of Punjab is the Financial Commissioner (Revenue) it follows that he is the appropriate authority under section 116(1) to impose the penalty of dismissal.
This submission follows from what the High Court accepted in the impugned judgment in the following words: "Our attention has not been drawn on behalf of the learned counsel for the respond ent to any rule according to which the Gover nor of Punjab, as is contended, is the proper authority for the appointment of Assistants.
Indeed, it is not disputed that if the plain tiff had been appointed as Assistant in the State of Punjab, then the Financial Commis sioner (Revenue) would have been the appropri ate authority competent to enquire into the petitioner 's conduct and impose the penalty of dismissal; in other words, in that case, the appointing authority could not have been higher in rank than the Financial Commissioner (Revenue).
It is certainly not the plain tiffs respondent 's case that appropriate authority for appointing Assistants in the State of Punjab is the Governor".
We are unable to appreciate the above line of reasoning of the High Court.
Section 116(1) is very clear.
To concretise the appellant 's case in terms of section 116(1), it is sufficient to state that the appellant who, immediate ly before the appointed day, was holding the post of an Assistant in the former State of Pepsu, shall continue to hold the same post in the new State of Punjab and shall be deemed as from that day to have beer/duly appointed to such post by the Government of Punjab.
We are not concerned in the instant case about the appointment being deemed to be made by " 'other appropriate authority" in the State of Punjab since the appellant had been appointed by the Rajpra mukh of Pepsu which is equivalent to the State Government of Pepsu and the coordinate authority in the new State of Punjab is the Governor of Punjab.
The argument that in the new State of Punjab the Financial Commissioner (Revenue) is the appropriate authority for appointing Assistants is absolutely irrelevant in the context of section 116(1) which enables the status quo ante to continue except where the post ceases to exist under the provisions of the Act.
It is also important to bear in mind the provisions of section 115(7) of the Act where under the proviso thereto "the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub section (1) or sub section (2) shall not be varied to his disadvantage except with the previous approval of the Cen tral Government".
One of the conditions of service of the appellant was that having been appointed by the State Government of Pepsu he could be only dismissed by the State Government of Pepsu if he had continued there.
962 Under section 116 when he is integrated in the new State of Punjab he carries with him 'that condition of service with regard to his termination of employment and it cannot be.
varied to his disadvantage, under section 115(7) of the Act except with the previous approval of the Central Gov ernment.
(See Takhatray Shivdatray Mankad vs State of Gujarat(1)and Bholanath J. Thakar vs The State of Saurashtra(2).
No such approval of the Central Government in the instant case is produced before us.
It is, there fore, clear that an authority subordinate to the Governor of Punjab was not competent to pass the order of dismissal of the appellant.
Mr. Sharma submits that the Punjab Financial Commis sioner 's Office (State Service Class III) Rules, 1957, are applicable in the instant case.
Therefore, under rule 4 thereof the Financial Commissioner is the appointing author ity for Assistants, the category to: which the appellant belongs.
He adds that even though these Rules may be disad vantageous to the appellant he cannot complain on account of the approval of these Rules by the Central Government under section 115(7) of the Act.
Mr. Sharma submits that these Rules received the approval of the Central Government as will appear from the general circular dated May 11, 1957, to all the State Governments.
He further submits that in N. Raghavendra Rao vs Deputy Commissioner,South Kanara, Mangalore(a) and in a recent decision in Mohammad Shujat Ali & Ors.
vs Union of India & Ors. etc.
,(4) this Court referred to that circular of May 11, 1957, and held that that circular amounted to general approval under the proviso to section 115(7) of the Act.
We are, however, unable to see how this memorandum of May 11, 1957 can be called in aid as 'previous approval ' under section 115(7) of the Act when the Punjab Financial Commissioner 's Office (State Service.
Class III).
Rules, 1957 were already promul gated on February 28, 1957.
Approval under section 115(7) is previous approval and not subsequent ratification.
The above decisions, therefore, do not come to the aid of the respondent.
Mr. Sharma also drew our attention to a decision of this Court in Rajvi Amar Singh vs The State of Rajasthan(5) which is clearly diStinguishable on facts.
This Court was not called upon in that case to consider the provisions of the State Reorganisation Act.
Our attention has been drawn by the appellant to.
an unreported judgment of this Court in Mysore State and Road Transport Corporation, etc.
vs Mirja Khasim Beg & Anr.
etc.(6) pronounced on December 1, 1976.
This Court had to deal with a similar question although appertaining to: the "competent authority" under section 116(2) of the Act in the background of Article 311(1) of the Constitution.
The following passage from that decision will make the. point clear: (1) ; (2) A.I.R. 1954 S.C. 680.
(3) ; (4) ; (5) [1958] S.C.R.1013.
(6) C.A.S. Nos.
1601 1609 & 2402 2405 of 1968 dated 1 12 1976.
963 "In the instant cases, the first re spondents were undeniably appointed by the Superintendent of the Traffic Department of the erstwhile State of Hyderabad who was the head of the Road Transport Department of that State.
On the coming into force of the , on November 1, 1956, they were to be deemed by virtue of sub section (1) of section 116 of the to.
have been appointed with effect from that date to the posts held by them on that date by the appropriate au thority in the new State of Mysore which could not in the context mean an authority other than the one equivalent to or coordinate in rank with the aforesaid authority in the erstwhile State of Hyderabad.
The authority equivalent to or coordinate in rank with the aforesaid authority on the relevant date being the General Manager of the Mysore Government Road Transport Department according to.
the appellants ' own admission as contained in answer to the aforesaid interrogatories served on them by the first respondents, he alone could be considered to be the 'compe tent authority ' in terms of sub section (2) of section 116 of the .
The fact that there was no post of Superintendent of the Traffic in the Mysore.
Government Road Transport Department in the State of Mysore is of no consequence.
Such being the position, the first respondent could not have been dismissed from service by an authority lower or subordinate in rank to the General Manager of the Transport Department as it would tantamount to deprivation of the guarantee enshrined in Article 311 of the Constitution read with section 115(7) of the . ".
In the result both the judgments of the High Court are set aside and the judgments and decrees of the Subordinate Judge, First Class, Patiala, stand restored.
The appeals are allowed with costs.
We are thankful to Mr. Hingorani for his assistance as amicus curiae in these appeals.
P.H.P. Appeals allowed.

summary:
The appellant was appointed as a clerk in the Patiala State in 1948.
On the formation of the new State of Punjab in 1956, the appellant was integrated in the service of the new State of Punjab as permanent Assistant.
The appellant overstayed leave and.
therefore, after holding an enquiry the Financial Commissioner.
Punjab dismissed him from serv ice in October, 1959.
Appellant filed two suits, one for a declaration that his dismissal order was void and illegal second for arrears of salary on the basis that the dismissal was illegal.
The trial Court decreed both the suits.
The High Court in appeal reversed the decrees of the trial Court and dismissed the suits.
In the appeals by certificate the appellant contended that the appellant was confirmed in the State of Patiala by the order of the Raj Pramukh.
Before its integration he was governed by the Patiala and East Punjab States Union Civil Services (Punishment and Appeal) Rules 1953 which were made in exercise of powers conferred by proviso to article 309 of the Constitution.
By a notification of the Punjab Govern ment dated 9 2 1957 the said 1953 Rules were made applicable to the corresponding services from 1st November, 1956 on wards till further orders in the new State of Punjab.
Under the 1953 Rules, the State Government was the appropriate authority for dismissing members of Class Iii and IV.
Under section 2(46) of the Pepsu General Clauses Act, 1953.
State Government means the Rat Pramukh.
The appellant, therefore, contended that he cannot be removed from service by any authority subordinate to the Governor of Punjab and since the Financial Commissioner is an authority subordinate to the Governor.
he was not competent to pass the order of dismissal.
The respondent contended that the appointing authority for the post held by the appellant in the State of Punjab is the Financial Commissioner and, therefore.
he is the appro priate authority under section 116(1 ) of the States Reorganisa tion Act, 1956 to impose the penalty of dismissal.
Second ly, in the present case the Punjab Financial Commissioner 's Office (State Services Class III) Rules.
1957, apply.
Although the said rules are more disadvantageous to the appellant since they have received the approval of the Central Government by the General Circular dated 11 5 1957, the appellant was rightly dismissed by the Financial Commis sioner.
Allowing the appeals.
HELD: 1.
Section 116(1) merely provides that the appel lant shall continue to hold the same post in the new State of Punjab and shall be deemed to have been duly appointed to such post by the Government of Punjab.
The fact that in the new State .of
Punjab the Financial Commissioner is the appropriate authority for appointing Assistants is absolute ly irrelevant.
Under section 115(7) of the States Reorganisation Act the conditions of service applicable to 957 a civil servant immediately before the appointed day cannot be varied to his disadvantage except with the previous approval of the Central Government.
One of the condition of service of the appellant on the appointed day was that since he was appointed by the State Government of Pepsu he could only be dismissed by the State Government of Pepsu if he had continued there.
[961 H, 962 A] 2.
The Memorandum of 11 5 1957 cannot be called in aid as previous approval because the Punjab Financial Commis sioner 's Office Rules 1957 were promulgated on 28 2 1957 before the Circular dated 11 5 1957 was issued.
No approval of the Central Government has been produced.
Therefore, authority subordinate to the Governor of Punjab was not competent to pass an order of dismissed of the appellant.
[962 D E] The Court set aside the judgment and decrees of the High Court and restored those of the trial Court.
[963 E] Takhatray Shivdatray Mankad vs State of Gujarat ; and Bholanath J. Thaker vs The State of Saurashtra AIR 1954 SC 680, followed.
N. Raghavendra Rao vs Deputy Commissioner, South Kamara, Mangalore ; and Mohammad Shujat Ali & Ors. etc.
vs Union of India & Ors. etc.
; , distinguished.
Rajvi Amar Singh vs The State of Rajasthan, , distinguished.
Mysore State and Road Transport Corporation etc.
vs Mirja Khasim Ali Beg & Anr.
C. As.
1601 1609 and 2402 2405 of 1968 dt. 1 12 1976 followed.


judgement:
: Criminal Appeal No. 502 of 1976.
(Appeal by Special Leave from the Judgment and Order dated 16 9 1975 of the Delhi High Court in Criminal Revision No. 139 of 1975).
A.K. Gupta, for the appellants.
G. Das, and R.N. Sachthey, for the respondent.
The Judgment of the Court was delivered by CHANDRACHUD, J.
The appellants who are Railway employ ees, were convicted by the learned Metropolitan Magistrate, Delhi under rules 118 and 119 of the Defence of India Rules, 1971 and were sentenced to six months ' rigorous imprison ment.
The order of conviction was upheld in appeal by the learned Additional Sessions Judge and in revision by the Delhi High Court with the difference that whereas the former upheld the sentence too, the latter has reduced it to the period already undergone.
In this appeal by special leave the Iegality of conviction is questioned by the appel lants.
The case of the prosecution is that the appellants are leaders of the Northern.
Railwaymen 's Union and that on May 5, 1974 they 993 held a meeting in Tughlakabad Railway Yard inciting railway workers to go on strike from May 8.
This is alleged to be in breach of the order passed by the Government of India under rule 118(1) of the Defence of India Rules, 1971.
That rules reads thus: "118.
Avoidance of strikes and lock outs. (1) If in the opinion of the Central Government or the State Government it is necessary or expedient so to.
do for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military Opera tions, or for maintaining supplies and services essential to the life of the communi ty, nothwithstanding anything contained in any other provisions of these rules, the Central Government may, by general or special order, applying generally or to any specific area and to .any undertaking or class of undertakings, make provision (a) for prohibiting, subject to the provisions of the order, a strike or lock out in connection with any industrial dispute; (b) for requiring employers, workmen, or both, to observe for such period as may be, specified in the order such terms and conditions of employment as may be determined in accordance with the order: Provided that no order made under clause (b) shall require any employer to observe terms and conditions of employment less favourable to.
the workmen than those which were applicable to them at any time within three months preceding the date of the order.
" By sub rule (2), if any person contravenes any order made under sub rule (1) he shall be punishable with imprison ment for a term which may extend to three 'years or with fine or with both.
The order issued under rule 118(1)(b) by the Government of India in its Ministry of Labour on November 26, 1973 recites that in the opinion of the Central Government it was necessary and expedient for maintaining supplies and serv ices essential to the life of the community to prevent strikes in the Railway Services 'and that therefore "the Central Government hereby prohibits a strike in connection with any industrial dispute/disputes in the said Railway Services in India for a period of six months w.e.f.
the 26th November, 1973.
" In support of its case the prosecution examined three witnesses called S.D. Sharing, Dilbagh Rai and jasbir Singh.
Sharma 's evidence is in the nature of hearsay and indeed he admits in so many words that his knowledge regarding the incitement given by the appellants to the Railway workers to go on strike was derived solely from information received by him.
The witness admits that he had no personal knowledge that the appellants had held any meeting nor had 994 he heard their speeches.
The second witness Dilbagh Rai was in charge of the Police Post at Tughlakabad Railway Station and was entrusted with the investigation of the case.
In the nature of things he too has no personal knowledge of what the appellants did or said.
Jasbir Singh who was in charge of the Diesel Shed at Tughlakabad is in the circumstances the only witness whose evidence could, if at all, help the prosecution to establish the charge that the appellants had contravened the order issued by the Government of India under r. 118(1)(a) of the Defence of India Rules, 1971.
But even that evidence, in our opinion, is inadequate for proving the charge levelled against the appellants.
Jasbir Singh claims to have attend ed a meeting addressed by the appellants but he has not stated as to what exactly the appellants said in the meet ing.
He has given his own gist or summary of what the appellants meant to convey to the audience stating that they incited the workers to go on strike and threatened them with dire consequences if they did not respond to the call.
Such a broad, resume is not safe to rely upon for holding the charge proved.
In view of the total absence of evidence showing what the appellants in fact said in the meeting, the summary coined by Jasbir Singh of the happenings in the meeting cannot form the basis of conviction.
What is chargeable as contravening the prohibition imposed under the order issued by the Government of India under r. 118(1)(a) is in the circumstances of this case the words used by the speakers and not the gist of the speeches made by a member of the audience.
A summary of a speech may broadly and generally not be inaccurate and yet it may not faithfully reflect what the speaker actually said and in what context.
Therefore, we would prefer not to rely on the gist given by the witness without knowing the data on the basis of which the gist was given.
The charge must therefore fail.
One of the points urged before us is whether the courts below were justified in taking judicial notice of the fact that on the date when the appellants delivered their speech es a railway strike was imminent and that such a strike was in fact launched on May 8, 1974.
Section 56 of the Evidence Act provides that no fact of which the Court will take judicial notice need be proved.
Section 57 enu merates facts of which the Court "shall" take judicial notice and states that on all matters of public history, literature, science or art the 'Court may resort for its aid to appropriate books or documents of reference.
The list of facts mentioned in section 57 of which the Court can take judicial notice is not exhaustive.
and indeed the purpose of the section is to> provide that the .Court shall take judicial notice of certain facts rather than exhaust the category of facts of which the Court may in appropriate cases take judicial notice.
Recognition of facts without formal proof is a. matter of expediency and no one has ever questioned the need and wisdom of accepting the existence of matters which are unquestionably within public knowl edge.
(see Taylor 11th edn.
pp 3 12; Wigmore sec 2571 foot note; Stephen 's Digest, notes to Art, 58; Whitley Stokes ' Anglo Indian Codes Vol.
II p. 887).
Shutting the judicial eye to the 995 existence of such facts and matters is in a sense an insult to commonsense and would tend to reduce the judicial process to a meaningless and wasteful ritual.
No Court therefore insists on formal proof, by evidence, of notorious facts of history, past or present.
The date of poll, the passing away of a man of eminence and events that have rocked the nation need no proof and are judicially no ticed.
Judicial notice, in such matters, takes the place of proof and is of equal force.
In fact, as a means of establishing notorious and widely known facts it is supe rior to formal means of proof.
Accordingly, the Courts below were justified in assuming, without formal evidence, that the Railway strike was imminent on May 5, 1974 and that a strike intended to paralyse the civic life of the Nation was undertaken by a section of workers on May 8, 1974.
But the matter does not rest there.
Rule 118(1)(a) empowers the Government to issue an order prohibiting a strike "in connection with any industrial dispute".
The Order issued by the Government on November 26, 1973 recites, as required by the Rule, that the Central Government prohib its a strike "in connection with any industrial dispute" in the Railway Services in India for a period of six months.
Rule 118 (2) prescribes punishment for a person who con travenes any order made under the Rule.
We have no doubt that the Government possesses the power to issue an appro priate order under Rule 118 (1) even if there is no existing industrial dispute because the power can be exercised prophylactically for preventing a strike in connection with an imminent industrial dispute.
But the prosecution must establish, in order that the conduct charged as penal may fall within the mischief of the Order, that the strike in regard to which the incitement was given was in connection with an industrial dispute.
Unless that is established, there can be no contravention of the order issued by the Government, because the contravention consists in doing what is prohibited by the order.
And what is prohibited by the order is a strike in connection with an industrial dispute.
Thus the prosecution has to establish not only that a strike was imminent or had actually taken place, of which judicial notice may be taken, but further that the strike was in connection with an industrial dispute, which is a matter of evidence.
Rule 118(1)(a) limits the power of the Government to issue an appropriate order, general or special, for prohibiting inter alia a strike in connection with any industrial dispute.
Since the rule does riot empower the Government to issue an order prohibiting strikes generally, whether they bear any connection with an industrial dispute or not, there can be no contravention of the order unless it is established by evidence that the strike was in connection with an industrial dispute.
The prosecution did not lead any evidence to prove this impor tant ingredient of the offence and the generalisation made ' by the witnesses in their evidence is wholly inadequate for accepting that the appellants gave incitement to a strike in connection with any industrial dispute.
It is urged by the learned counsel appearing for the Delhi Administration, who are respondents to the appeal, that what is contemplated by rule 118(1)(a) itself is a strike in connection with 996 an industrial dispute and therefore it is not necessary for the prosecution to establish that the strike was in connec tion with any industrial dispute.
There is no warrant for this submission and nothing contained in sub rule (3) of rule 118 which defines the expressions "industrial dispute" and "strike" lends support to the counsel 's submission.
It is well known that strikes are sometimes undertaken for purposes unconnected with an industrial dispute, as for example when the workers demand a closure of the establish ment on the demise Of a person of national importance.
In fact, strikes are not unoften launched for reasons which do not reasonably bear any connection with an industrial dispute.
An argument was advanced before us on behalf of the appellants that the conduct attributed to the appellants does not fall within the mischief of the order because inciting other workers to go on strike is outside the defi nition of the word "strike" contained in rule 118(3)(b) of the Defence of India Rules, 1971.
It i,s unnecessary to consider this question in view of our finding that the evidence led by the prosecution is insufficient to 'estab lish the charge levelled against the appellants.
We would however like to point out that the appropriate provision of the Defence of India Rules under which an incitement to strike as in the instant case may be punished is rule 36(6)(j) read with rule 43(1)(a).
The former defines a "prejudicial act" to include instigation or incitement for cessation or slowing down of work by a body of persons employed in any place of employment in which 100 persons or moro are normally employed, in furtherance of any strike which is prohibited under rule 118 or is illegal under any law for the time being in force.
The latter provides that no person shall without lawful authority or excuse do any prejudicial act.
By rule 43 (5) a person who contravenes any of the provisions of rule 43 is punishable with impris onment which may extend to 5 years or with fine or with both.
In the result we allow the appeal, set aside the order of conviction and sentence and acquit the appellants.
S.R. Appeal allowed.

dataset_name: IN-Abs

summary:
In respect of an alleged speech made, on May 5, 1974, at a meeting held in Tughlakabad Railway Station Yard inciting workers to go on strike from May 8, 1974, the appellants who were leaders of the Northern Railwaymen 's Union were convicted by the learned Metropolitan Magistrate under Rule 118 and 119 of the Defence of India Rules and sentenced to six months rigorous imprisonment.
The order of conviction was upheld in appeal by the Sessions Court but in revision, the Delhi High Court while upholding the conviction re duced the sentence to the period already undergone.
In appeal by special leave to this Court, the appellants contended (1) There was no legal evidence to warrant the conviction; (2) The courts below were not justified in taking judicial notice of the fact that on the date when the appellants delivered their speeches a railway strike was imminent and that such a strike.
was, in fact, launched on May 8, 1974 and (3) The conduct attributed to the appellants does not fall within the mischief of the order because inciting other workers to go on strike is outside the defi nition of the word "strike" contained in rule 118(3)(b) of the Defence of India Rules, 1971.
Allowing the appeal by special leave, the court, HELD: (1) The courts below were justified in assuming without formal evidence that the railway strike was immi nent on May 5. 1974 and that a strike intended to paralyse the civic life of the nation was undertaken by a section of workers On May 8, 1974.
[995A B] (2) The purpose of section 57 of the Evidence Act is to provide that the court shall take judicial notice of certain facts rather than exhaust the category of facts of which the court may in appropriate cases take judicial notice.
Recog nition of facts without formal proof is an act of expedien cy.
Shutting the judicial eye to the existence of such facts and matters is in a sense an insult to commonsense and would tend to reduce the judicial process to a meaningless and wasteful ritual.
No court insists on a formal proof by evidence of notorious facts of history past or present and events that have rocked the nation need no roof and are judicially noticed.
judicial notice in such matters takes place of proof and is of equal force.
[994F H, 995 A] (3) The Government possesses the power to issue an appropriate order under rule 118(1) prohibiting the strike "in connection with any industrial dispute" even if there is no existing industrial dispute because the owner can be exercised prophylactically by preventing a strike in connec tion with an imminent strike.
[995C D] (4) In order to maintain a charge under rule 118(1) of the Defence of India Rules, 1971, the prosecution has to establish not only that a strike was imminent or had actual ly taken place of which indicial notice may be taken but further that the strike was in connection with the industri al dispute which is a matter of evidence.
[995E F] 992 (5) What is chargeable as contravening the prohibition must under the order issued by the Government of India under Rule 118(1)(a) is, in the circumstances of this case, the words used by the speakers and not the gist of the speeches made by a member of the audience.
A summary of speech may broadly and generally not be inaccurate and it may ' not faithfully reflect what the speaker actually said and in what context.
[994D E] (6) Rule 118(1)(a) limits the power of the Government to issue an appropriate order, general or special, for prohib iting inter alia, a strike in connection with any industrial dispute.
Since the rule does not empower the Government to issue an order prohibiting strikes generally, whet.her it is in connection with the industrial dispute or not, there can be no contravention of the order unless it is established by evidence that the strike was in connection with an industri al dispute.
In the instant case, the prosecution did not lead any evidence to prove this important ingredient of the offence and the generalisation made by the witnesses in their evidence is wholly inadequate for accepting that the appellants gave incitement to a strike in connection with any industrial dispute.
[995F G] (7) The contention of the prosecution that what is contem plated by rule 118 (1)(a) itself is a strike in connection with an industrial dispute and, therefore, it is not neces sary for the prosecution to establish that the strike was in connection with any industrial dispute is neither warranted nor supported by anything contained in sub rule (3) of rule 118 which defines expressions "industrial dispute" and "strike".
[995H, 996A B] [In view of the finding that the evi dence led by the prosecution is insufficient to establish the charge, in the instant case, the court thought it unnecessary to consider the question whether the conduct attributed to the appellants fall within the mischief of the order dated 26 11 1973, since inciting other workers to go on strike may be outside the definition of the words "strike" contained in Rule 118(3)(b) of the Defence of India Rules, 1971.
" The court, however, pointed out that the appropriate provision of the Defence of India Rules under which an incitement to strike as in the instant case may be punished in Rule 36(6) read with Rule 43(1)(a).]


judgement:
: Criminal Appeals Nos. 418 419 and 484 485/76.
(From the Judgment and Order dated 6 7 1976 of the Andhra Pradesh High Court in Writ Petition Nos.
1865, 1870 of 1976 respectively.) P. Parmeswara Rao, G. Narayana Rao and A. K. Ganguli, for the appellants in Crl.
Appeals Nos. 418 419/76 and respondents in Crl.
Appeals Nos. 484 485/76.
R.K. Jain, fox the appellant in Crl.
A. No. 484/76 and respondent in Crl.
A. No. 418/76.
section Lakshminarasu, for the appellant in Crl.
A. No. 485/76 and for respondent in Crl.
A. No. 419/76.
The Judgment of the Court was delivered by GUPTA, J.
These are a group of four appeals from a common Judgment of the Andhra Pradesh High Court partly allowing two writ petitions, writ petition No. 1865 of 1976 filed by A.V. Rao, and writ petition No. 1870 of 1976 made by N.V. Krishnaiah.
The High Court rejected the petition ers ' prayer for setting off under section 428 of the Code of Criminal Procedure, 1973 the periods during which they were in preventive detention against the term of imprisonment imposed on them on their conviction in a sessions trial, but accepted their contention that they were entitled to the benefit of the remission system under the for the period during which they were in jail as under trial prisoners before their conviction: Criminal Ap peals Nos. 418 and 419 of 1976 by State of Andhra Pradesh are directed against the part of the High Court 's Judgment granting the writ petitioners the benefit of the remission system under the treating for this purpose the period of undertrial detention on the 'same footing as a term of imprisonment on conviction.
Appeal No. 418 arises out of writ petition No. 1865 of 1976 filed by A.V. Rao and Appeal No. 419 is from writ petition No. 1870 of 1976 made by N.V. Krishnaiah.
The writ petitioners have also filed appeals against the part of the.
Judgment disallowing their prayer for set off under section 428 of the Code of Criminal Procedure.
Criminal Appeals Nos.
484 and 485 of 1976 are by A.V. Rao and N.V. Krishnaiah respectively.
All the four appeals are on certificate of fitness granted by the High Court.
The relevant facts are as follows.
A.V. Rao, appel lant in appeal 484 of 1976 and respondent in appeal 418 of 1976, was in detention under the Preventive Detention Act when on December 18, 1969 a first information report was filed naming him among others as an accused in a case involving offences under section 121A and 120B read with section 395, and section 120B read with section 447 of the Indian Penal Code, 'which gave rise to sessions cases Nos. 106 of 1970 and 6 of 1971 on the of the Additional Sessions Judge, Hyderabad.
The detention order under 9 the preventive detention law was revoked by the State Gov ernment on April 11, 1970 and Rao was released on the next day, April 12.
He was then produced before the magistrate in connection with the sessions cases on April 13, 1970; there is some doubt about this date because the record at some places mentions the date as April 18, but the discrepancy is not of any significance on the questions arising for decision in these appeals.
On April 10, 1972 Rao. was convicted along with others and sentenced to various terms of imprisonment for the offences charged against him; the maximum sentence was rigorous imprisonment for four years.
The sentences were directed to run con currently.
His appeal against the order of conviction was.
dismissed by the High Court on November 28, 1975.
He filed writ petition 1865 of 1976 asking for an order on the Government of Andhra Pradesh to set off under section 428 of the Code of Criminal Procedure, 1973 the time between December 19, 1969 and April 13, 1970 against his term of imprisonment treating the said period as the period of detention undergone by him as undertrial prisoner, and to take into account the entire period during which he was in detention for the purpose of remission of his sentence under the .
The petitioner further claimed that had he been free at the time when the F.I.R. was lodged on Decem ber 18, 1969, he would have surrendered immediately and would have been produced before the court for remand on the next day as some of the co accused in the case had been it was submitted that if the "concerned authority" who could but did not "take immediate and necessary steps to produce the petitioner" before the magistrate, the petition er should not be made to suffer.
The facts of N.V. Krishnaiah"s case are similar.
Krish naiah, appellant in appeal No. 485 and respondent in appeal No. 419, was also an accused in the sessions cases 106 of 1970 and 6 of 1971 with A.V. Rao and others.
lie however was not in detention when the F.I.R. was lodged.
He was arrested in connection with the sessions cases on December 19, 1969 and was in detention on remand from December 21, 1969 to April 9, 1972.
He was also convicted by the Addi tional Sessions Judge on April 10, 1972 and the maximum sentence in his case too was rigorous imprisonment for four years.
He also preferred an appeal to the High Court against the order of conviction.
The High Court granted him bail and he was released on bail on April 29, 1972.
He was arrested under the on June 26, 1975.
The High Court dismissed the appeal on November 28, 1975.
A warrant of arrest issued by the Additional 'Sessions Judge on December 1, 1975 was served on him on December 30, 1975, on which date the detention order under the was also revoked.
On these Krishnaiah in his writ petition sought an order on the State of Andhra Pradesh to treat the "period from June 26 1975 to November 28, 1975 as remand period" and to set off under section 428 of the Code of Criminal Proce dure this period during which he was under preventive deten tion, against the term of imprisonment imposed on him on conviction in the sessions cases.
It was also contended that the warrant issued by the Additional Sessions judge on December 1, 1975 should have been served on him immediately, 10 that it was no fault of his that "the concerned authority" chose to serve the warrant on December 30, 1975, and that during this period of one month he should be deemed to have been serving the sentence imposed on him.
, A further prayer was made that the entire period during which he was under detention be taken into account for remission of his sentence under the , The question for consideration in appeals 418 and 419 of 1976, preferred by the State of Andhra Pradesh is, whether the period of detention undergone by the two writ petition ers in connection with the sessions cases before their conviction could be treated as a part of the period of imprisonment on conviction so as to entitle them to remis sion of their sentences under the .
The , as its preamble shows.
, is an Act to "amend the law relating to prisons" and to provide rules for the regula tion of such prisons Section 3(5) of the Act defines "remission system" as the "rules for the time being in force regulating the award of marks to, and the consequent short ening of sentences of, prisoners in jail".
Section 59 of the provides that the State Government may make rules consistent with the Act in respect of the various matters specified in clauses (1) to (28) of the section; under clause (5) of section 59 the State Government is authorised to make rules "for the award of marks and the shortening of sentences".
In their writ petitions both the petitioners speak of remission under the "prison rules" without specifying any rule under which relief is sought.
The High Court viewed the question in this way: Sec.
428 Crl.
P.C. clearly ordains that the remand detention shall be set off against the term of imprisonment imposed on the accused person on conviction.
The section further clarifies that the liability of such person to undergo, imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.
In other words, the statute equates the under trial detention or remand detention with imprison ment on conviction.
The provision, in so many words, treats the remand ' detention as part of the period of imprisonment after conviction.
If remissions are given for imprisonment after conviction, there is no plausible or understandable reason.
, why it should be denied to the remand period when the statute equates both of them." The High Court accordingly held that all the remissions that are available or permissible to the two petitioners in regard to imprison ment on conviction are available to them oven in respect of the remand period and directed the authorities "to work out these remis sion and give the benefit to the petitioners".
We do not consider the view taken by the High Court on this point as correct.
Section 428 of the Code of Criminal Procedure.
1973 is in these terms: Period of detention undergone by the accused to be set off against the sentence of imprisonment. "428.
Where an accused person has, on conviction, been sentenced to imprisonment for a term, the period of deten 11 tion, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, Shall be set off against the term of imprison ment imposed on him on such conviction, and the liability of such person to undergo im prisonment on such conviction shall be re stricted to the remainder, if any, of the term of imprisonment imposed on him." Section 428 provides that the period of detention of an accused as an undertrial prisoner shall be set off against the term of imprisonment imposed on him on conviction.
The section only provides for a "set off", it does not equate an "undertrial detention or remand detention with imprisonment on conviction".
The provision as to set off expresses a legislative policy, this does not mean that it does away with the difference in the two kinds of detention and puts them on the same footing for all purposes.
The basis of the High Court 's decision does not, therefore, seem to be right.
Apart from that, the does not confer any right upon the prisoner to claim remission.
It was pointed out in G.V. Godse vs State of Maharashtra(1) that" . the does not confer on any authority a power to commute or remit sentences, it provides only for the regula tion of prisons and for the treatment of prisoners confined therein.
Section 59 of the confers a power on the State Government to make rules, inter alia, for rewards for good conduct.
Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act.
" It was explained that the rules under the do not substitute a lesser sentence for a sentence awarded by the court.
The rules enable a prisoner to earn remis sions but, as held in G.V. Godse 's case, the question of remission is exclusively within the province of the appro priate Government.
If the Government decides to remit the punishment to which a person has been sentenced, the remis sion may be worked out according .to the rules framed under the .
This being the position, appeals 418 and 419 of 1976 must succeed.
The remaining two appeals, 4.84 and 485 of 1976, preferred respectively by Rao and Krishnaiah, may now be taken up for consideration.
The claim in both these appeals is that the period of detention undergone by each appellant under the preventive detention law should be set off under section 428 of the Code Criminal Procedure against the term of imprison ment imposed on them on their conviction in the aforesaid sessions cases.
The argument is that the 'expression "period of detention" in section 428 includes detention under the Preventive Detention Act or the .
It is true.
that the section speaks of the "period of detention" undergone by an accused person, but it expressly says that the detention mentioned refers to the detention during the investigation, enquiry or trial of the case in which the accused person has been convicted.
The section makes it clear that the period of detention which it allows to be set off against the term of imprison ment (1) ; , 446.
12 imposed on the accused on conviction must be during the investigation, enquiry or trial in connection with the "same ease" in which he has been convicted.
We therefore agree with the High Court that the period during which the writ petitioners were in preventive detention cannot be set off under section 428 against the term of imprisonment imposed on them.
There is however substance in the other point raised by the writ petitioners regarding the computation of the period during which the writ petitioner in each ease should be held to have suffered imprisonment on conviction.
In A.V. Rao 's case (W.P. 1865/76), he was already in detention under the 2Preventive Detention Act when the First Information Report was lodged on December 18, 1969 in connection with the sessions eases.
Some of the co accused in these cases were arrested and produced before the magistrate for remand on December 19, 1969, but Rao was produced before the magis trate sometime in April, 1970 after he was released from preventive detention.
It was argued that he also could have been produced before the magistrate for remand on December 19, 1970.
On behalf of the respondent, State of Andhra Pradesh, it was contended that as ' Rao was already in deten tion under the Preventive Detention Act, it was not possible to produce him before the magistrate for remand until the period of preventive detention was over, we do not find any justification in law for the position taken up by the State.
Rao being already in custody, the authorities could have easily produced him before the magistrate when the First Information Report was lodged.
Nothing has been pointed out to us either in the preventive detention law or the Code of Criminal Procedure which can be said to be a bar to such a course.
That being so we think that the claim that the entire period from December 19, .1969, when many of the co accused were produced before the magistrate to April 18, 1970 should be treated as part of the period during which Rao was under detention as an under trial prisoner, must be accepted as valid.
A.V. Rao 's Appeal No. 484 of 1976 is allowed to this extent.
In the case of N.V. Krishnaiah, the Additional Sessions Judge, Hyderabad, issued a warrant on December 1, 1975 after his appeal against conviction was dismissed by the High Court on November 28, 1975.
The warrant, however, was.
served on him only on December 30, 1975 on which date the order under maintenance of Internal Security Act was revoked.
It is claimed ' that the warrant could have been served immediately on that dismissal Of the appeal on November 28, 1975 and the accused was not responsible if the authority concerned chose to serve the warrant on him on December 30, 1975.
In this case also, the argument on behalf of the State of Andhra Pradesh is that it was not possible to forward Krishnaiah to jail consequent on his conviction in the session cases until the period of his detention under the was over.
We do not see why that should be so.
Section 418 requires the court passing the sentence .to forthwith for ward a warrant to the jail or other place in which he (accused) is, or is to be, confined, and, unless the ,ac cused is already confined in such jail or other 13 place, shall forward him to such jail or other place, with the warrant".
Section 418 thus does not exclude a case where the warrant concerns an accused who is already in detention On behalf of the State it was sought to be argued that if the warrant was served on Krishnaiah immediately after his conviction was upheld by the High Court in appeal, the position would have been anomalous, because then he would have been in detention both under the preventive detention law and as a convicted accused in a criminal case.
We have not been referred to any provision either in the Code of Criminal Procedure or in the Maintenance of Internal Securi ty Act which requires the service of the warrant to be delayed until after the period of preventive detention is over.
As regards the alleged anomaly of a man having to suffer two kinds of detention at the same time, one preven tive and the other punitive, we do not find this to be a valid objection.
The position is not different from the case where a man is sentenced on different counts to a term of rigorous imprisonment and another term of simple impris onment, and the sentences are directed to run concurrently.
Counsel for the State referred us to the decision in Harad han Saha and another vs The State of West Bengal & others,(1) in support of his contention.
In our opinion this case does not help him at all.
What was held in this case was, inter alia that the nature of preventive detention is entirely different from punitive detention, and there is no bar to a man being detained under the preventive deten tion law when a criminal proceeding for the offences on which the preventive detention is based is pending.
If that be so, there can be no bar to the preventive and punitive detentions continuing simultaneously.
We therefore allow appeal No. 485 of 1976 to the extent that Krishnaiah should be taken to have serving the sentence imposed on him from December 1, 1975.
In the result the criminal appeals Nos. 418 and 419 of 1976 by the State of Andhra Pradesh are allowed, and the appeals Nos. 484 and 485 of 1976 preferred respectively by A.V. Rao and N.V. Krishnaiah are allowed to the extent indicated above.
M.R. Appeals al lowed.

summary:
The cross appeals arose from two writ petitions filed by A.V. Rao and N. V. Krishnaiah in the High Court.
A.V. Rao 's case was that while he was already in preventive detention.
on December 18.
a First Information Report was lodged against him in connection with some Sessions cases.
Some of the co accused in ' these cases were produced before the Magistrate on December 19, 1969 for remand, but Rao was produced before him only in mid April, 1970 after his release from preventive detention.
The accused in the Sessions cases were thereafter convicted and sentenced, and Rao.
filed a writ petition asking for an order on the State Government to set off u/s , the time between December 19, 1969 and April 13, 1970, against his term of imprisonment, treating the said period as the period of detention undergone by him as an undertrial prisoner, and also to take the same into account, for the purpose of remission of his sentence under the Prisons Act.
Rao con tended that he could have been produced before the Magistrate for remand on December 19, 1969.
The State Government contended that Rao could not be produced before the Magistrate for remand until the period of preventive detention was over.
In the case of Krishnaiah, he was in detention under the MISA, when his appeal against conviction in a criminal case was dismissed by the High Court, and a warrant was issued against him on December 1, 1975, but was served on him only on December 30, 1975, when the order against him under the MISA was revoked.
The High Court rejected the petitioners ' contention regarding set off under section 428 Cr.
P.C. but accepted their contention regarding the benefit of remission.
Allowing the appeals by the State, and partly allowing the appeals by the original writ petitioners, the Court, HELD: (1) Section 428 of the Cr. P.C., 1973 only pro vides that the period of detention of an accused as under trial prisoner shall be set off against the term of impris onment imposed on him on conviction.
It does not equate an "undertrial detention or remand detention with imprisonment on conviction" or do away with the difference in the two kinds of detention and put them on the .same footing for all purposes.
[11B C] G.V. Godse vs State of Maharashtra, ; ; 446, referred to.
(2) section 428 expressly says that the "period of detention" mentioned, refers to the detention during the investigation, enquiry or trial in connection with the "same case" in which the accused person has been convicted.
The period during which the writ petitioners were in preventive detention cannot be set off under section 428 against the term of imprisonment imposed on them.
[11G, 12 A B] (3) Section 418 does not exclude a case where the war rant concerns an accused who is already in detention.
We have not been referred to any provision either in the Cr.
P.C. or in the MISA which requires the service of the war rant to be delayed until after the period of preventive detention is over.
There is no bar to the preventive and punitive detention continuing simultaneously.
[13A B, C] 2 240SCI/77 8 Haradhan Saha & Anr.
vs State of West Bengal & Ors.
; , referred to.


judgement:
ivil Appeal No. 2041 of 1968.
(From the Judgment and Decree dated 2.2.1966 of the Allahabad High Court (Lucknow Bench) Lucknow in First Execu tion Appeal No 5/62).
S.N. Prasad, for the appellant.
G.C. Mathur and O.P. Rana for the respondent.
The Judgment of the Court was delivered by BEG, C.J.
This appeal by certificate raises the simple question whether certain trees, said to be part of a grove, are included in 34 grove land, which, under section 6(a) (i) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act) vests in the State of Uttar Pradesh free from all encumbrances.
This very question was raised by the respondent decree holder in the execution proceed ings in this very case, between the same parties which came to this Court on an earlier occasion.
We have perused the judgment of this Court reported in ; , in the case.
We find that the position taken by the respond ent decree holder then also was that, after the coming into force of the Act, what could still be sold in execution of the decree was the right in trees of groves as these contin ued to vest in the intermediary.
This Court rejected ' that submission and held that after vesting of all the rights mentioned in.
section 6 of the Act in the State of Uttar Pradesh, new bhumidhari rights came into existence under section 18 of the Act.
It also held ' that the only way in which a mortgagee could enforce his right against the mortgage or after the Act came into force is provided in section 6(h) of the Act, read with section 73 of the , so that nothing more than the compensation awarded to the, intermediary could be proceeded against by the mortgagee.
Proceed against by the mortgagee.
We are surprised that, even after that decision which, according to the aPPellant judgment debtor, constitutes a complete answer to any further execution proceedings in respect of any part of bhumidhari rights, execution should have proceeded against trees in groves and the view taken by the execution court, that there is a distinction between, trees and a grove and grove land, should have been upheld by a Division Bench of the Allahabad 'High Court (Lucknow Bench).We find that it is impossible for us to accept this opinion in view of the definition of the intermediary 's grove under section 3(13) of the Act which says "intermediary grove means grove land held or occupied by an intermediary as such".
This means that "grove land" and an "intermediary 's groves are equated and groves are on ly collections of trees in plots of land so as to preclude cultivation in them.
The uncut trees are deemed to be parts of the "land".
Section 18(1)(a) of the Act provides that an "intermediary 's grove" is bhumidhari property.
Rights in it are part of bhumidhari rights.
After these clear words of the enactment.
we think it is not necessary even to consider previous definitions or to make out specious or unrealistic distinctions between standing uncut trees, which are parts of groves, and groves and grove land.
The proposition is well settled, under the general law, that trees, before they are cut, form parts of 'land '.
And, an inseparable part is always included in the whole.
In view of this very clear legal position, we allow this appeal and set aside the judgments and decrees of the High Court and the Execution Court with costs.
S.R. Appeal al lowed.

summary:
In Rana Sheo Ambar Singh vs Allahabad Bank Ltd., Allaha bad (1962) 2 SCR p.441, this Court held that the respond ent could not enforce his rights under the mortgage by the sale of the new Bhumidari rights created in favour of the mortgagor by section 18 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and that the respondent could only enforce his rights against the appellant in the manner provided under section 6(h) of the Act read with section 73 of the Transfer of Property Act, and follow the compensation awarded to the intermediary.
Despite this decision having been brought to the notice in the execution proceedings initiated by the respondent attachment of the trees in groves belonging to the appellant was ordered by the executing Court taking the view that there is a distinction between the trees and a grove and grove land.
The Division Bench of the Allahabad High Court (Lucknow Bench) upheld the views of the Executing Court and dismissed the appeal Allowing the appeal by certificate, the Court, HELD: (1) The view that there is a distinction between trees and a grove and grove land and, therefore execution against trees in groves could be proceeded against cannot be accepted in the light of the definition of the intermediary grove under section 3(13) of the U.P. Zamindari Abolition and Land Reforms Act, 1950, viz., "intermediary 's grove" means groveland held or occupied by intermediary as such.
[34 D E, H] (2) Groves are only collection of trees in plots of land so as to preclude cultivation in them.
The uncut trees are deemed to be parts of the land.
The proposition is well settled under the general law, that trees, before they are cut.
form parts of 'land '.
And are inseparable part is always included in the whole.
[34E F] (3) Section 18(1)(a) of the Act provide that an "inter mediary grove" bhumidary property.
Rights in it are parts of bhumidari rights.


judgement:
iminal Appeal No. 75 of 1954.
Appeal by Special Leave from the Judgment and dated the 24th July 1953 of the Bombay High Order a Court in Criminal Revision Application No. 669 of 1953 arising out of the Judgment and Order dated the 29th June 1953 of the Court of Presidency Magistrate, 9th Court at Bandra, Bombay in Case No. 11872/73/P of 1952.
, P. K. Chatterjee, for the appellants.
N. section Bindra, (P. G. Gokhale, with him) for the respondent.
December 13.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
The first appellant was, at the relevant date, in possession of room No. 10 in House No. 334, Bazar Road, Bandra, Bombay.
, On information that this room was being used as a gaming house, Mr. Bhatt Sub Inspector of Police, raided it on 19 9 1952, and found the two appellants and four others in possession of gaming instruments All of them were prosecuted under section 5 of the Bombay Prevention of Gambling Act (Bombay Act IV of 1887), hereinafter referred to as the Act, for being present in a gaming house for the purposes of 1051 gaming, and the first appellant was, in addition, charged under section 4(a) of the Act for keeping a gaming house.
The Presidency Magistrate who tried the case, found the first appellant guilty under section 4(a) of the Act, and sentenced him to three months ' rigorous imprisonment.
He also found him guilty under section 5 of the Act, but awarded no separate sentence under that section.
The second appellant was found guilty under section 5, and sentenced to three months ' rigorous imprisonment.
The appellants took the matter in revision to the High Court, which set aside the conviction of the first appellant under section 4(a) but confirmed that under section 5, and awarded a sentence of three months ' rigorous imprisonment under that section.
As regards the second appellant, both the conviction and sen tence were confirmed.
Against this order, the present appeal by special leave has been preferred.
Both the courts below have concurrently found that the appellants were present in a gaming house for the purpose of gaming, and have thereby committed an offence punishable under section 5 of the Act, and that finding is not under challenge before us.
The only contention that has been raised before us and it arises only as regards the first appellant is that as the High Court had set aside his conviction under section 4 (a) 'of the Act, it should have set aside the sentence passed on him under that section, and that it had no power under the Code of Criminal Procedure, to impose a sentence under section 5, when none such had been passed by the Magistrate.
This contention is based on, the terms of section 423.
Under that section, when there is an appeal against a conviction, the court has the power under subclause (1)(b) either (1) to reverse the finding and sentence, and acquit or discharge the accused, or order his retrial, or (2) to alter the finding but maintain the sentence, or (3) to reduce the sentence with or without altering the finding, or (4) to alter the sentence with or without either reducing the sentence or altering the finding, but, subject to section 106(3), not so as to enhance the same.
It is urged that the 1052 present case does not fall within any of the four categories mentioned above as the conviction under section 5 has been affirmed, and no question of reduction or alteration of sentence arises, as none had been imposed under that section by the Magistrate, and that accordingly the order of the High Court could not be justified under any of the provisions of the Code.
It is further contended that the award of sentence under section 5 amounted in the above circumstances to an enhancement, and was, in consequence, illegal, as no notice had been issued therefor '.
as required by law.
In support of this contention, the decision in Ibrahim vs Emperor(1) is relied on.
In that case, as in the present, the accused was convicted both under section 4(a) and section 5 of the Act, but a sentence was passed under section 4(a) and none under section 5.
On appeal, the learned Judges set aside the conviction under section 4(a), and on the question of sentence, observed that the Magistrate was wrong in not having imposed a separate sentence under section 5, and continued: "He ought to have imposed a sentence under each section; but as he has not imposed a sentence under section 5, we cannot impose one ourselves, for that would be enhancing the sentence".
These observations undoubtedly support the first appellant.
A different view, however, was taken in two other decisions, which may now be noticed.
In Superintendent and Remembrancer of Legal Affairs vs Hossein Ali(2), the accused had been convicted by the Magistrate both under section 363 and section 498 of the Indian Penal Code, and sentenced to imprisonment under section 363, no separate sentence having been awarded under section 498.
On appeal, the Sessions Judge set aside the conviction under section 363, but held the accused guilty under section 498.
On a reference as to whether the Sessions Judge could pass any sentence under section 498, it was held by the High Court that he could, under section 423 (1) (b) of (1) A.I.R. 1940 Bom.
(2) A.I.R. 1938 Cal. 439.
1053 the Code of Criminal Procedure, as there was an alteration of the conviction under sections 363 and 498 to one under section 498.
This view proceeds, in our opinion, on a misconception of the true meaning of the words "alter the finding" in section 423(1)(b) of the Code of Criminal Procedure.
When a statute enacts provisions creating specific offences, in law these offences constitute distinct matters with distinct incidents.
Under section 233 of the Code of Criminal Procedure, they have to be separately charged, and under section 367, the judgment has to specify the offence of which and the law under which the accused is convicted.
When there is a conviction for more offences than one, there are distinct findings in respect of each of them, and when section 423 (1) (b) speaks of a finding being reversed or altered by the court of appeal, it has reference to the finding in respect of each of the offences.
When, therefore, the High Court set aside the conviction under section 4 (a) and affirmed that under section 5, there are two distinct findings, one of reversal and another of affirmance, and there is no question of alteration.
The decision in Superintendent and Remembrancer Of Legal Affairs vs Hossein Ali(1) was followed in Pradip Chaudhry vs Emperor(2).
There, the Sessions Judge convicted the accused under sections 324 and 148 of the Indian Penal Code and sentenced them to imprisonment under section 324, but no sentence was imposed on them under section 148.
On appeal, the High Court set aside the conviction under section 324, and confirmed that under section 148.
Dealing with the contention of the accused that the Court had no power under section 423 (1) (b) of the Code of Criminal Procedure to award a sentence under section 148, the learned Judges observed that they had "ample power to transpose the sentence, so long as the transposition does not amount to enhancement".
We are unable to support the reasoning in this decision either.
There is nothing about transposition of sentence under section 423(1)(b).
It only provides for altering the finding and maintaining the sentence, (1) A.I.R. 1938 cal.
(2) A.I.R. 1946 Patna, 235.
1054 and that can apply only to cases where the finding of guilt under one section is altered to a finding of guilt under another.
The section makes a clear distinction between a reversal of a finding and its alteration, and provides that when there is a reversal, the order to be passed is, one of acquittal, discharge or retrial, whereas when there is an alteration, the order to be passed is one of maintaining, reducing or altering the sentence.
But here, the order passed by the High Court is not one of alteration of any finding.
It is, as already stated, a reversal of the finding under section 4(a) and a confirmation of the conviction under section 5.
We are therefore of opinion that on the language of the section, the imposition of a sentence under section 5 by the High Court cannot be justified.
The question still remains whether apart from section 423(1) (b), the High Court has the power to impose the sentence which it has.
When a person is tried for an offence and convicted, it is the duty of the court to impose on him such sentence, as is prescribed therefor.
The law does not envisage a person being convicted for an offence without a sentence being imposed therefor.
When the trial Magistrate convicted the first appellant under section 5, it was plainly his duty to have imposed a sentence.
Having imposed a sentence under section 4(a), he obviously considered that there was no need to impose a like sentence under section 5 and to direct that both the sentences should run concurrently.
But, in strictness, such an order was the proper one to be passed.
The appellants then took the matter in revision to the High Court, and contended that their conviction under section 5 was bad.
The High Court went into the question on the merits, and found them guilty under that section.
It was the duty of the High Court to impose a sentence under section 5, and that is precisely what it has done.
The power to pass a sentence under those circumstances is derived from the law which enacts that on conviction a sentence shall be imposed on the accused, and that is a power which can and ought to be exercised by all the courts which, having jurisdiction to decide whether the 1055 accused is guilty or not, find that he is.
We are of opinion that this power is preserved to the appellate court expressly by section 423(1)(d), which enacts that it can "make any amendment or any consequential or incidental order that may be just or proper".
When a conviction is affirmed in appeal but no sentence had been awarded by the trial Magistrate.
, the award of a sentence is consequential on and incidental to the affirmance of the conviction, and it is a just and proper order to be passed under the law.
We are unable to agree with the view expressed in Ibrahim vs Emperor(1) that such an order could be an enhancement of the sentence.
Before a sentence can be said to be enhanced, there must be one which could be enhanced, and when no sentence was imposed on a conviction by the trial Magistrate and one is for the first time awarded in appeal, it cannot correctly be said to be an enhancement.
We are accordingly of opinion that it was within the competence of the High Court to have passed the sentence which it had.
There is another ground on which the order of the lower court can be sustained.
Against the conviction of the appellants by the Presidency Magistrate, no appeal lay, and accordingly the appellants preferred a revision to the High Court.
Under section 439(1) of the Code of Criminal Procedure, the High Court in hearing a revision can exercise the powers of a court of appeal under section 423, and may enhance the sentence.
Under section 439(2), an order of enhancement could not be passed, unless the accused bad an opportunity of being heard in his defence, and under section 439(6), the accused is also entitled, when proceedings are taken under section 439(2), to show cause against his conviction.
The substance of the matter is that when proceedings are taken against the accused for enhancement of sentence under section 439(2), he has a right to be beard both on the question of the propriety of the conviction and of the sentence to be imposed on him if he is convicted.
In the present case, the first appellant had an opportunity of pre (1) A.I.R. 1940 Bom.
1056 senting his case in respect of both these matters, and, in fact, he availed himself of the same.
He himself raised in his revision the question of his guilt under section 5, and the High Court on a consideration of all the evidence affirmed his conviction.
On the question of sentence, section 5 enacts that when a person is found guilty under that section, the punishment shall not be less than three months ' imprisonment and Rs. 200 fine , if be had been convicted for the same offence previously.
The first appellant had a previous conviction, and the sentence of imprisonment is the minimum which could be passed against him under section 5.
With reference to this aspect of the matter, the High Court observes: "In view of the fact that the first accused admits one previous conviction under section 5 of the Act, the sentence of three months ' rigorous imprisonment passed upon him by the learned Presidency Magistrate is justified".
Now, the question is whether, in the circumstances, the order of the High Court could be held to be bad for want of notice under section 439(2).
The law does not prescribe that any particular formalities should be complied with, before action is taken under that section.
It only provides that the accused should have an opportunity of showing cause against the conviction and enhancement, and, as the first appellant was heard on both these questions, the require ments of the section were satisfied.
The order of the High Court could accordingly be maintained under section 439, even if it were to be regarded as an enhancement of the sentence.
In any event, no prejudice has resulted to the first appellant by reason of the absence of a formal notice under section 439(2).
In the result, the appeal is dismissed.

summary:
The first appellant was prosecuted under section 5 of the Bombay Prevention of Gambling Act (Bombay Act IV of 1887) for being present in a gaming house for the purposes of gaming and was, in addition, charged under section 4(a) of the Act for keeping a gaming house.
The Presidency Magistrate, who tried the case, found him guilty under section 4(a) and sentenced him to three months ' rigorous imprisonment.
He also found him guilty under section 5 but awarded no separate sentence under that section.
In revision, the High Court set aside the conviction under section 4(a), but confirmed that under section 5 and awarded a sentence of three months ' rigorous imprisonment under that section.
It was contended for the first appellant that the High Court had no power under section 423(1)(b) of the Code of Criminal Procedure to impose any sentence under section 5 of the Act when no such sentence had been awarded by the Magistrate and that, in any event, the award of such a sentence amounted to an enhancement and was, in consequence, illegal, as no notice had been issued there for, as required by law.
Held, that though section 423(1)(b) of the Code of Criminal Procedure was not applicable to the case, the High Court had power to pass the sentence under section 423(1)(d).
The law does not envisage a person being convicted for an 1050 offence without a sentence being imposed therefor, and the award of a sentence by the High Court was only consequential on and incidental to the affirmance of the conviction, and it was a just and proper order to be passed under the law, within the meaning of section 423(1)(d) of the Code of Criminal Procedure.
Such a sentence cannot amount to an enhancement as it was awarded only for the first time in appeal.
Even if it were to be regarded as an enhancement, the order of the High Court could not be held to be bad for want of notice under section 439(2), as the first appellant had an opportunity of showing cause against the conviction and enhancement, and, in any event, no prejudice had resulted to him by reason of the absence of a formal notice under the section.
Ibrahim vs Emperor (A.I.R. , Superintendent and Remembrancer of Legal Affairs vs Hossein Ali (A.I.R. and Pradip Chaudhry vs Emperor (A.I.R. 1946 Pat. 235), disapproved.