judgement:
: Criminal Appeal No. 76 of 1976.
T. C. Raghavan and N. Sudhakaran for the appellant.
Debabrata Mookerjee and R. N. Sachthey for respondent No. 1.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave is directed against an order, dated July 1, 1975, of the High Court of Kerala, dismissing 533 the Criminal Revision Petition filed by the appellant.
It raises questions with regard to the scope and interpretation, inter alia, of sections 399 (3) and 484(2) (a) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the New Code).
The facts are these: On February 2, 1971 the Director of Enforcement, New Delhi made a complaint against four accused persons.
alleging the commission of offences under section 120 B, Penal Code and section 5(1) (aa) and B; 5(1) (c) of the Foreign Exchange Regulation Act, 1947 (for short, called the Act) in the Court of the District Magistrate, Ernakulam.
The appellant herein was accused No. 2 in that complaint.
By an application he raised two objections to the maintainability of the complaint and prayed for its dismissal.
First, the opportunity as required under the proviso to section 23 (3) of the Act was not given to the accused for showing that he had permission from the Reserve Bank of India for doing the alleged acts.
Second, that the complainant did not comply with the conditions in the proviso to section 23D (1) of the Act, in as much as there was on additional material before him to come to the conclusion that the penalty which he is empowered to impose under section 23, would not be adequate and that consequently, it was necessary to file a complaint in Court.
Dr By an order dated September 5, 1973, the trial court dismissed the application holding inter alia "that the points raised here will be considered after recording the evidence".
On the same day, against this order dated September 5, 1973, accused No. 2 (P. Philip) filed Cr.
Revision Petition No. 27 of 1973 under section 435 of the Code of Criminal Procedure, 1898 (hereinafter called the old Code) before the Sessions Judge, Ernakulam, who dismissed the same by an order dated August 6, 1974.
Aggrieved by the order of the Sessions Judge, P. Philip preferred Cr. Revision Petition No. 393 of 1974 to the High Court.
This Revision was heard by a Division Bench along with two other Revisions (Cr. Rev. Petns.
Nos. 409 and 411 of 1974) and dismissed, without going into the merits, on the ground that it was not maintainable in view of section 399(3) of the New Code.
Mr. Raghavan, learned Counsel for the appellant contends that the order under appeal is manifestly erroneous because at the time when the revision petition was filed before the Sessions Judge, the old Code was in force, and in view of section 484 of the New Code, it had to be disposed of in accordance with the old Code.
As against this, Mr. D. Mukherji submits that the word "application" in section 484(2) (a) of the Code of 1973 is a word of limited import.
According to the Counsel only those applications which could be finally disposed of by the Sessions Judge would be covered by this word.
Since the revision application, in the instant case proceeds the argument was one for reference to the High Court under section 438 of the Code of 1878, and could not be finally disposed of by the Sessions Judge at his level, it would not be an "application" within the contemplation of section 484(2) (a) of the Code of 1973.
It is pointed out that procedural rights are not vested rights, that whereas a right of 534 appeal is a substantive right, the procedural facility to move in revision does not involve such a right.
On these premises it is maintained that the saving clause in section 484 should be very strictly construed, with the result that the Code of Criminal Procedure, 1973 will govern all revisions which were pending on April 1, 1974 when it came into force.
We are unable to accept the interpretation of section 484(2) (a) of the new Code suggested by the learned Counsel for the respondents.
The language of this provision is clear.
Its material part runs as under.
"(1) The Code of Cr.
Procedure 1898 (V of 1898) is hereby repealed.
(2) Notwithstanding such repeal: (a) If, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, contained, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898 (V of 1898) as in force immediately before such commencement . as if this Code has not come into fore. " It will be seen that the word "application" in the saving provision contained in clause (a) of sub section (2) of section 484 immediately follows the term "appeal".
It therefore takes some colour from the collocation of words in which it occurs.
It is synonymous with the term "petition" which means a written statement of material facts, requesting the court to grant the relief or remedy based on those facts.
It is a peculiar mode of seeking redress recognised by law.
Thus considered there can be no doubt that the word "application" as used in clause (a) of section 484 of the Code of 1973 will take in a revision application made under section 435 of the old Code.
Such a revision application does not cease to be an "application" within the purview of the aforesaid clause (a) merely because in the event of the application being allowed, the Sessions Judge was required to make a reference to the High Court under section 438.
Whether such an application is granted or dismissed by the Sessions Judge, he finally disposes of the matter so far as his court is concerned.
May be that a purely interlocutory application in a pending action, which by itself is not an independent mode of seeking redress recognised by law is not covered by the word 'application ' as used in the aforesaid clause (a).
But it is not necessary to express any final opinion on that point because a revision application of the kind before us is not by any recokning, such an interlocutory application.
In the present case, the revision application made by P. Philip was pending before the Sessions Judge when the New Code came into force.
In view of section 484(2) (a) of the New Code, this revision was required to be disposed of in accordance with the provisions of the old Code.
535 The above being the position, the learned Judges of the High Court were clearly in error in holding that in view of section 399(3) of the New Code, the appellant was not competent to maintain a revision in the High Court against the order dated August 6, 1974 of the Sessions Judge.
For these reasons we allow this appeal, set aside the order of the High Court and send the appellant 's revision petition (No. 393 of 1974) back of it for disposal with utmost expedition in accordance with law.
Appeal allowed and R. P. 393/74 remitted.

summary:
In February, 1971 the Director of Enforcement made a complaint against 4 accused for violation of certain provisions of the Foreign Exchange Regulations Act, read with section 120 B of the Indian Penal Code.
The appellant herein who was accused No. 2 made an application before the Trial Court raising two preliminary objections to the maintainability of the complaint and prayed for its dismissal.
The Trial Court by its judgment dated 5 9 1973 dismissed the application holding that the points raised would be considered after recording the evidence.
The appellant filed a Revision Application to the Sessions Court under section 435 of the Code of Cr.
Procedure 1898, which was dismissed in August, 1974.
The appellant filed a Revision Application to the High Court which was dismissed by the High Court on the ground that it was not maintainable in view of section 399(3) of the new Code.
In an appeal by Special Leave, the appellant contended: At the time when the Revision petition was filed before the Sessions Judge the old Code was in force and in view of section 484 of the new Code the application had to be disposed of in accordance was the old Code.
The respondents on the other hand, contended that the word 'application ' in section 484(2) of the new Code is a word of limited import and that it would include only those applications which could be finally disposed of by the Sessions Judge.
^ HELD: The word 'application ' in the saving provision immediately follows the term 'appeal '.
It, therefore, takes some colour from the collection of words in which it occurs.
It is synonymous with the term 'petition ' which means a written statement of material facts, requesting the Court to grant the relief or remedy based on those facts .
is a peculiar mode of seeking redress recognised by law.
There is no doubt that the word 'application ' as used in clause (a) of section 484 of the new Code will take in a revision application made under section 435 of the old Code.
The Revision Application made by the appellant was pending before the Sessions Judge when the new Code came into force.
Therefore it was required to be disposed of in accordance with the provisions of the old Code.
[534D F, G H]


judgement:
Civil Appeal No. 1425 of 1968.
From the Judgment and Decree dated the 5 8 74 of the Madras High Court in Appeal No. 448 of 1960.
A. V. Rangam and Miss A. Subhashini for the Appellant.
K. Jayaram and R. Chandresekhar for Respondent No. 1 Ex parte for Respondents 2 8.
537 The Judgment of the Court was delivered by KHANNA, J.
This appeal on certificate is by the State of Madras, now Tamil Nadu, against the judgment of Madras High Court affirming on appeal the award of learned Subordinate judge Salem in respect of the amount of compensation payable to the respondents for acquisition of land under the Land Acquisition Act (Act 1 of 1894) (hereinafter referred to as the Act).
The High Court, however, directed that the interest on the amount awarded shall run from November 19, 1951, the date of the award by the Land Acquisition officer and not from December 1, 1949 as ordered by the Subordinate Judge.
On July 12, 1949 notification under section 4 of the Act was issued for`the acquisition of 19 acres 45 cents of dry land situated in Alegapuram Mitta for the Salem Fair Lands Co operative Society Ltd.
On December 19, 1950.
Alegapuram Mitta was notified under the Madras Estates Abolition Act (Act 26 of 1948) (hereinafter referred to as the Abolition Act).
A writ petition was filed in the High Court to challenge that notification.
Further proceedings in pursuance of the notification were stayed by the High Court by order dated January. 1, 1951.
The Society for which acquisition was being made deposited in the meantime the probable cost of the land on September 13, 1950.
On, November 19, 1951 the Land Acquisition officer announced his award.
The respondents, it may be stated, were the Melevaramdars (land holders) of the land in question.
Kudiwaramdars (cultivators) were also, besides the respondents, parties to the proceedings before the Land Acquisition officer.
The Land Acquisition officer by his award dated November 19, 1951 awarded compensation to the cultivators at the rate of Rs. 1,500 per acre for part of the land near the road and at the rate of Rs. 1,300 per acre for the rest of the land.
Rs. 520, 11 As, 1 P the capitalised value of the net rental income was held to be the amount payable to the respondents.
The Kudiwaramdars were content with the compensation awarded to them, but the respondents who were, as already mentioned above, Melavaramdars asked for a reference to court under section 18 of the Act for claiming enhanced compensation.
According to the respondents, they were entitled to one third of the value of the totality of the interest in the land.
According further to the respondents, compensation for the total land should be awarded at the rate of Rs. 3,000 per acre Learned Subordinate Judge held that the respondents were entitled to 50 percent of the compensation awarded in respect of the Melawaram interest in the land.
The Subordinate Judge in this context relied r upon an earlier decision of the Madras High Court wherein it had been held that the rights of Melavaramdars were not confined only to rent from land and that they had other recognised rights and were entitled to compensation for those rights.
The respondents were thus held entitled to compensation for their Melavaramdar interest at the rate of Rs. 750 per acre in respect of land near the road and Rs. 650 per acre in respect of the remaining land.
Interest was awarded to the respondents on the compensation amount from December 1, 1949 2 608SCI/76 538 because, in the opinion of the Subordinate Judge, possession of the land had been taken from that date.
On appeal the High Court affirmed the decision of the Subordinate Judge regarding the rate of compensation.
The contention advanced on behalf of the appellant that as the land had vested in the Government under the Abolition Act, the respondents were not entitled to compensation under the Land Acquisition Act, was rejected.
It was observed that in the land acquisition proceedings the Government was estopped from denying the absence of any interest in the claimants whom the Government had made parties to the proceedings.
Regarding the date from which interest on the amount or compensation should accrue, the High Court found that there was no material on the record to show that possession of the land had been taken prior to the date of the award by the Land Acquisition officer.
Interest was accordingly directed to run from the date of the award.
In appeal before us Mr. Rangam on behalf of the appellant state has urged that as the land in question has vested under the Abolition Act in the State the respondents are not entitled to compensation under the Land Acquisition Act.
We find it difficult to accede to this submission, for we are of the opinion that in case the State wanted to take over the land under the Abolition Act it should not have proceeded to acquire the interest of the respondents in the land in dispute under the Land Acquisition Act.
There were two alternative courses open to the State, either to proceed under the Land Acquisition Act or to take over the land under the Abolition Act.
Although the estate was notified under the Abolition Act, the proceedings under that Act were stayed and the matter proceeded under the Land Acquisition Act.
As the proceedings which were continued were under the Land Acquisition Act the compensation payable had also to be paid in accordance with the provisions of that Act.
The reference which was made by the Land Acquisition officer to the Subordinate Judge under section 18 of the Land Acquisition Act was with respect to the quantum of compensation payable to the respondents because the respondents had felt dissatisfied with the amount awarded to them as compensation by the said officer.
The underlying assumption of those proceedings was that the respondents had an interest in the land.
If it was the case of the appellant that the respondents had been divested of their interest in the land and the same had vested in the appellant State, the appellant should have taken appropriate steps to make such a claim in accordance with law.
No such claim seems to have been made.
The High Court expressly left open the question of the claim of the State Government to the amount of compensation deposited on the score that Melwaramdar respondents were not entitled to it by reason of having lost all their interest in the land at the relevant point of time.
We agree with the High Court that it was not open to the appellant State in the particular reference made at the instance of the respondents to the Subordinate Judge to set up a claim adverse to the interest of the respondents.
There is also we find nothing in the award of the learned Subordinate Judge to show that any question was raised before him that the amount of compensation was not payable to the 539 respondents in accordance with the provisions of the Land Acquisition Act.
This question appears to have been agitated for the first time only in the appeal before the High Court.
The High Court rejected the contention in this behalf.
We find no cogent ground to take a different view.
As regards the quantum of compensation, the High Court has referred to the previous decisions which show that the formula gene rally adopted is to pay one third of the total compensation to Melavaramdars and two thirds of the compensation to Kudiwaramdars.
In accordance with that formula, the respondents would be entitled to one half of the compensation payable to Kudiwaramdars.
Both the Subordinate Judge and the High Court awarded compensation in accordance with this formula.
No cogent ground has been shown to us as to why we should interfere with the concurrent finding in this respect.
We also find no reason to disagree with the High Court regarding the date from which interest should run on the amount of compensation.
The appeal fails and is dismissed with costs.
P.H.P. Appeal dismissed.

dataset_name: IN-Abs

summary:
The State of Madras acquired land belonging to the respondent landlords.
The Land Acquisition officer gave his award determining the compensation payable.
On a reference made to the Subordinate judge certain compensation was determined.
Interest was awarded to the respondents on the compensation amount from 1st December, 1949 because in the opinion of the Subordinate Judge, possession of the land had been taken on that date.
On an appeal, the High Court affirmed the decision of the Subordinate Judge regarding the rate of compensation.
The High Court also rejected the contention of the appellant that the land had vested in the Government under the Madras States Abolition Act, 1948, and, therefore, the respondents were not entitled to compensation under the Land Acquisition Act.
The High Court found that there was no material on record to show that the possession of the land had been taken prior to the date of the award by the Land Acquisition officer.
Interest was accordingly directed to run from the date of the award, i.e. November, 1951.
In an appeal by certificate, the appellant contended: (1) The land in question vested under the Abolition Act in the State and the respondents were, therefore, not entitled to compensation under the Land Acquisition Act.
(2) The quantum of compensation awarded by the High Court was excessive.
(3) Interest should have been allowed from 1st December, 1949.
^ HELD: ( 1 ) There were .
two alternative courses open to the State either to proceed under the Land Acquisition Act or to take over the land under the Abolition Act.
Although the estate was notified under the Abolition Act, the proceedings under that Act were stayed and the matter proceed l under the Land Acquisition Act.
It was not open to the appellant in the particular reference made at the instance of the respondents to the Subordinate Judge to set up a claim adverse to the interest of the respondents.
The High Court rightly rejected the contention of the appellant in this behalf.
[538D E, G H] (2 ) Both the High Court as well as the Subordinate Judge awarded the compensation in accordance with the previous decisions which laid down a formula.
No cogent grounds have been shown to us to interfere with the concurrent findings in this respect.
[539B C] (3) There is no reason to disagree with the High Court judgment regarding the date on which the interest should run on the amount of compensation.
[539 G]


judgement:
Civil Appeal No. 2534 of 1969.
(Appeal by special leave from the judgment and order dated the 19 8 1969 of the Andhra Pradesh High Court at Hyderabad in C.R.P. No. 2190 of 1968.) P. P. Juneja, for the appellant.
G. N. Rao, for the respondent.
552 The Judgment of the Court was delivered by BEG J.
The defendant appellant had taken a house on rent under a registered lease dated 10th February, 1958, on a monthly rent of rent Rs. 250/ for a period of five years for running a lodging house.
It J is admitted by both sides that in February, 1963, the lease had expired.
According to the landlord respondent, the defendant appellant had continued to hold over as a tenant "on the same terms" by which he, presumably, meant that it was a month to month tenancy.
The Andhra Pradesh Building (Lease, Rent and Eviction) Control Act, 1960, (hereinafter referred to as 'the Act ') came into opera ton before the lease expired.
The appellant seemed to be constantly making defaults in payments of rent.
The landlord responden had, therefore, to file a suit for arrears of rent in the Court of District Munsif, Visakhapatnam, which was decreed on 4th April, 1962.
The landlord respondent had to file a petition on 21st April, 1962, under Section 10 of the Act before the Rent Controller, Visakhapatnam for the eviction of the appellant as no rent was paid from 1st December, 1961 to 31st March, 1962.
There was a compromise on 12th October, 1962.
The appellant agreed to clear arrears and to pay rents regularly.
The appellant, however, wailfully defaulted again in payments of rent from September, 1963 to April, 1964.
A notice dated 8th April, 1964, was sent by registered post by the landlord respondent to the appellant terminating his tenancy and calling upon him to pay up the arrears of rent and vacate the house by the end of April, 1964.
This came back with the endorsement that the appellant was refusing to accept it.
On 9th `` April, 1964, the respondent filed another petition under Section 10 of the Act before the Rent Controller of Visakhapatnam who ordered the eviction of the appellant after holding all the flimsy defenses of the t appellant to be unsubstantiated.
The Subordinate Judge of Visakhapatnam dismissed the tenant 's appeal on 23rd October, 1968.
The appellant 's revision application to the High Court was also rejected on 19th August, 1969.
The only question raised by the appellant before us, in this appeal by special leave, is that no notice under Section 106 of the Transfer of Property Act had been served upon the appellant according to the finding of the Andhra Pradesh High Court itself.
It was, therefore, urged , that the petition under Section 10 of the Act could not succeed.
The Andhra Pradesh High Court had, however, relied upon Ulligamma Ors.
V. section Mohan Rao & ors.
(1), where a Division Bench of that High Court had held that the Act, with which we are now concerned, provided a procedure for eviction of tenants which was self contained so that no recourse to the provisions of Section 106 of the Transfer of Property Act was necessary.
We may also refer here to the observations of this Court.
in Raval & Co. vs K. C. Ramachandran & ors.(2).
There, this Court noticed (1) (1969) 1 An.
P.R. Law Jolurnal 351.
(2) [197412 S.C.R. 629 @ 634 553 Shri Hem Chand vs Shrmati Sham Devi(1), and pointed out "that it was held there that the Act under consideration in that case provided the whole procedure for obtaining the relief of ejectment, and, that being so, provisions of Section 106 of the Transfer of Property Act had no relevance".
No doubt the decision mentioned with approval by this Court related to another enactment.
But, the principle indicated by this Court was the same as that applied by the Andhra Pradesh High Court.
It is true that, in Mangilal vs Sugan.
Chand Rathi (Deceased) etc.(2), this Court has held that the provisions of Section 4 of the Madhya Pradesh Accommodation Control Act of 1955 do not dispense with the requirement to comply with the provisions of Section 16 of the Transfer of Property Act.
In that case, however, Section 4 of the Madhya Pradesh Act merely operated as a bar to an ordinary civil suit so that service of a notice under Section 106 of the Transfer of Property Act became relevant in considering whether an ordinary civil suit filed on a ground which constituted an exception to the bar contained in Section 4 had to be preceded by a notice under Section 106 of the Transfer of Property Act.
In the context of the remedy of ejectment by an ordinary civil suit, it was held that the usual notice of termination of tenancy under Section long of the Transfer of Pro party Act was necessary to terminate a tenancy as a condition precedent to the maintainability of such a suit.
In the case before us, the respondent landlord relied upon a provision for special summary proceedings for eviction of tenants under an Act which contains all the requirements for those proceedings.
We, therefore think that the learned Judge of the Andhra Pradesh High Court had correctly applied the principle laid down by a Division Bench decision of that Court.
He rightly distinguished such a case from Mangilal 's case (supra), where an entirely different kind of provision of another Act in another State was being considered by this Court.
The Division Bench decision of the High Court, applied by the learned Judge, had, we think, enunciated the correct principle.
A question raised before us by learned Counsel for the respondent is whether the notice sent by the respondent landlord could be held not to have been served at all simply because the postman, who had made the endorsement of refusal, had not been produced.
The Andhra Pradesh High Court had relied upon Meghji Kanji Patel vs Kundanmal Chamanlal (a), to hold that the notice was not served.
There, a writ of summons, sought to be served by registered post, had been returned with the endorsement "refused".
The Bombay High Court held G that the presumption of service had been repelled by the defendant 's statement on oath that he had not refused it as it was never brought to him.
In this state of evidence, it was held that, unless the postman was produced, the statement of the defendant on oath must prevail.
An (1) I.L.R. [1955] Punj.
(2) A.I.R. 1965 SC 101.
(3) A.I.R. 1968 Bombay 387.
3 608SCI/76 554 ex paste decree, passed on the basis of such an alleged service was, therefore, set aside.
On facts found, the view expressed could not be held to be incorrect.
In Nirmalabala Debi vs Provat Kumar Basa(1), it was held by the Calcutta High Court, that a letter sent by registered post, with the endorsement "refused" on the cover, could be presumed to have been duly served upon the addressee without examining the postman who had tried to effect service.
What was held there was that the mere fact that the latter had come back with the endorsement "refused" could not raise a presumption of failure to serve.
On the other hand, the presumption under section 114 of the Evidence Act would be that, in the ordinary course of business, it was received by the addressee and actually refused by him.
This is also a correct statement of the law.
The two decisions are reconcilable.
The Calcutta High Court applied a rebuttable presumption which had not been repelled by any evidence.
In the Bombay case, the presumption had been held to have been rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence.
The Andhra Pradesh High Court had applied the ratio disdained of the Bombay case because the defendant appellant before us had deposed that he had not received the notice.
It may be that, on a closer examination of evidence on record, the Court could have reached the conclusion that the defendant had full knowledge of the notice and had actually refused it knowingly.
It is not always necessary, in such cases, to produce the postman who tried to effect service.
The denial of service by a party may be found to be incorrect from its own admissions or conduct.
We do not think it necessary to go into this question any further as we agree with the High Court on the first point argued before us.
Consequently, this appeal is dismissed with costs.
P.B.R. Appear dismissed.

summary:
The respondent landlord filed a petition under section 10 of the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act, 1960, for the eviction of the appellant tenant.
There was a compromise.
Since the tenant defaulted in payment of the rent thereafter, a registered notice terminating the tenancy issued by the landlord, came back with an endorsement that the appellant had refused to accept it.
Later.
the tenant was ordered to be evicted. 'The tenant 's appeal to the appellate court and then his revision application to the High Court were rejected.
Relying upon an earlier Division Bench decision of that Court, the High Court held that the Act provided a self contained procedure for eviction of tenants, and therefore, compliance with the provisions of section 106, Transfer of Property Act was unnecessary.
Dismissing the tenant 's appeal, ^ HELD: The High Court has correctly applied the principle laid down by a Division Bench of that court in Mohan & ors.
vs section Mohan Rao & Ors.
[1969] An.
P.R. Law Journal 351.
[553 E] Raval & Co. vs K. C. Ramacharndran & ors.
[19741 2 SCR 629 @ 634 and Shri Hern Chand vs Shrimali Sham Devi.
ILR 1955 Puni.
36, referred to.
In Mangilal vs Sugan Chand Rathi [AIR 1955 SC 101] this Court was considering an entirely different kind of provision of another Act in another State, and this case is distinguishable.
In the context of the remedy of ejectment by an ordinary civil suit it was held in that case that the usual notice of termination _ of tenancy under section 106.
Transfer of Property Act was necesary.
[553F & D] boiler [In cases where a party denies receipt of registered notice it is not always necessary to produce the postman who tried to effect service.
Denial of service by a party may be found to be incorrect from its own admissions or conduct.
The decision of the Bombay High Court in M. K. Patel vs Kundan Mal Chamanlal and that of the Calcutta High Court in Nirmal Bala Devi.
vs Provar Kumar Basu are reconcilable.
The Calcutta High Court applied a rebuttable presumption under section 114, Evidence Act, that the letter was received by the addressee in the ordinary course of blazons was refused by him because the presumption from the endorsement made upon it had not been repelled by any , evidence.
In the Bombay case, the presumption had been held to have been `J rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence.] [554C E]


judgement:
Civil Appeal No. 779 of 1971 Appeal by special leave.
from the judgment and order dated the 2nd December, 1969 of the Rajasthan High Court in I.T.R. No. 5 of 1966.
section T. Desai, Rameshwar Nath, for the appellant.
B. B. Ahuja and section P. Nayar, for the respondent.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by special leave is directed against the judgment dated December 2,1 1969 of the High Court of Rajasthan.
Briefly stated the facts giving rise to this appeal are: Maharaja Shri Udebhan Singhji of Dholpur died issueless on October 22, 1954.
On the day following his demise all the movable valuables possessed by him were taken over and sealed by the Government of Rajasthan because of the dispute regarding succession to the gaddi.
On December 13, 1956 Maharaja Shri Hemant Singhji, the appellant herein, who was then a minor, was recognised by the Government of India as successor of the former Maharaja and t he aforesaid assets which inter alia consisted of 4,825 gold sovereign, 7,90,440 old silver rupee coins and silver bars weighing 2,54,174 totals were released by the Rajasthan Government and handed over to Rajmata in her capacity 424 as the adoptive mother and guardian of the appellant on March 24 1957.
During the financial year 1957 58, the aforesaid sovereigns, silver coins and silver bars were sold at the suggestion of the Government of India for a net consideration of Rs. 20,78"257.
Overruling the contentions raised on behalf of the appellant to the effect that as there was no voluntary sale chargeable to capital gains tax under section 12B of the Indian Income Tax Act, 1922, hereinafter referred to as 'the Act '" and the aforesaid items did not constitute 'capital assets ' as contemplated by section 2(4A) of the Act but fell within the purview of the exception carved out by clause (ii) thereof and as such were to be excluded in computing the gains because they were held for personal use by the assessee and the members of his family as was evident from the fact that they were used for the purpose of Maha Lakshmi Puja and other religious festivals and rituals in the family, and taking into account the market value of the assets as on January 1, 1954, the Income Tax officer, Bharatpur, worked out capital gains at Rs. 3,44"303.
Dissatisfied with this order, the appellant took the matter in appeal to the Appellate Assistant Commissioner but remained unsuccessful.
A further appeal to the Income Tax Appellate Tribunal was taken by the appellant but the same also proved abortive as the Tribunal was of the view that the expression "personal effects" meant such items of movable property as were necessary adjuncts to an individual 's own personality and the nature of sale being voluntary or otherwise was irrelevant for the purpose of section 12B in view of the decision of this Court in James Anderson vs Commissioner of Income Tax, Bombay City(1).
The Tribunal, however, referred the following question of law at the instance of the appellant to the High Court of Rajasthan at Jodhpur under section 66(1) of the Act.
"Whether on the facts and in the circumstances of the case the assets sold were capital assets within the meaning of section 2(4A) chargeable to capital gains tax under section 12B of the Income tax Act, 1922.
" By its order dated December 2, 1969" the High Court answered the question in the affirmative holding that in order that an article should constitute a part of personal effects, it is necessary that the article must be associated with the person of the possessor and that the aforesaid items consisting of gold sovereigns, silver rupees and silver bars could not be deemed to fall within the exception carved out by clause (ii) of section 2(4A) of the Act merely because they were placed before Goddess Lakshmi while performing Puja.
The appellant thereupon made an application to the High Court of Rajasthan for a certificate of fitness which was refused.
Thereafter, the appellant applied to this Court far special leave under Article 136 of the Constitution which was granted on May 6, 1971.
Appearing in support of the appeal, Mr. Desai has vehemently contended that the question as whether an item of movable property held for personal use is a part of personal effects of an assessee should be determined not in a commercial sense but according to the (1) , 131 425 Ordinary ideas,, habits, customs and notions of the class of society to which the assessee belongs or according to the well established habits, customs and traditions of his family.
He has in support of his contention referred us to a decision in Commissioner of Wealth tax.
Gujarat vs Arundhati Balkrishna(l).
He has further urged that in construing section 2`(4A) of the Act it must be borne in mind that the Legislature intended to lay emphasis on the nature of the use of the article rather than on the person of the assessee.
Mr. B. B. Ahuja appearing for the Revenue has, on the other hand, urged that the interpretation sought to be placed on behalf of the assessee on the expression "personal effects" is not correct and while determining whether the effects are personal it is essential to see whether they are meant for the personal use of the assessee.
We have given our earnest consideration to the submissions, of learned counsel for the parties.
For a proper decision of the point in question, it is necessary to refer to section 2(4A) of the Act, the relevant portion whereof runs thus: "2(4A). 'Capital asset ' means property of any kind held by an assessee" whether or not connected with his business, profession or vocation, but does not include (i) . . . (ii) personal effects, that is to say, movable property (including wearing apparel, jewellery, and furniture) held for personal use by the assessee or any member of his family dependent on him;" The expression "personal use" occurring in clause (ii) of the above quoted provision is very significant.
A close scrutiny of the context an; which the expression occurs shows that only those effects can legitimately be said to be personal which pertain to the assessse 's person.
In other words,, an intimate connection between the effects and the person of the assessee must be shown to exist to render them "personal effects".
The enumeration of articles like wearing apparel, Jewellery, and furniture mentioned by way of illustrations in the above quoted definition of "personal effects" also shows that the Legislature intended only those articles to be included in the definition which were intimately and commonly used by the assessee.
The meaning assigned to the expression "personal effects" 'm various dictionaries also lends support to this view.
In the Unabridged Edition of the Random House Dictionary of the English Language at page 1075, the expression is given the following meaning: "Personal effects, privately owned articles consisting chiefly of clothing, toilet items etc.
for intimate use by an individual".
(1) 426 In Black 's Law Dictionary, Fourth Edition at Page 1301, the expression is assigned the following meaning: "Personal effects.
Articles associated with person, as property having more or less intimate relation to person of possessor;" In Cyclopedic Law Dictionary, Third Edition, at page 832, the expression "personal effects ' without qualifying words is interpreted to include generally such tangible property as is worn or carried about the person.
In 'Words and Phrases ' (Permanent Edition), Volume 32 at page 277 it is stated that the words "personal effects" when used without qualification, generally include such tangible property as is worn or carried about the person, or to designate articles associated with the person.
At another place at the same page, it is stated that the words "personal effects" are used to designate articles associated with person, as property having more or less intimate relation to person of possessor or such tangible property as attends the person.
Bearing in mind the aforesaid meaning assigned to the expression in various dictionaries and cases the silver bars or bullion can by no stretch of imagination be deemed to be "effects" meant for personal use.
Even the sovereigns and the silver coins which are alleged to have been customarily brought out of the iron safes and boxes on two special occasions namely, the Ashtmi Day of 'Sharadh Pakh ' for Maha Lakshmi Puja and for worship on the occasion of Diwali festival can not also be designated as effects meant for personal use.
They may have been used for puja of the deities as a matter of pride or ornamentation but it is difficult to understand how such user can be characterised as personal use.
As rightly observed by the Income Tax authorities if sanctity of puja were considered so essential by the asses see, the aforesaid articles would not have been delivered by this guardian to the Banks for sale.
The language of section 5(1)(viii) of the Wealth Tax Act, 1957 which is pari materia with the definition of the expression "personal effects" as given in section 2(4A) (ii) of the Act is also helpful in cons truing the latter provision.
That provision runs as follows: "5.
(1) Subject to the provisions of sub section (1 A), wealth tax shall not be payable by an assessee in respect of the following assets, and such assets shall not be included in the net wealth of the assessee.
. . . . . (viii) furniture, household utensils, wearing apparel, provisions and other articles intended for the personal or household use of the assessee but not including jewellery;" In section Poddar vs The Commissioner of Wealth Tax, Bombay City II(1) where the assessee at the time of his appointment in the year (I) I.L.R. [1965] Bom.1062.
427 1945 as a Justice of the Peace was presented with two gold caskets, a gold tray,, two gold glasses, a gold cup, saucer and spoons, and photo frames as souvenirs by the dealers and brokers in cloth with whose business he was connected and he kept these articles in a glass show case for display in his drawing room and in assessment year 1959 60 claimed exemption in respect of these articles under the above quoted provision i.e. under section 5(1)(viii) of the Wealth Tax Act, 1957, it was held that merely because the gold caskets were kept in the show case did not make them part of the furniture and the rest of the articles could not be considered to be household utensils as that expression did not embrace within its sweep gold articles meant for ornamental use for special occasions but meant household articles which were normally, ordinarily, and commonly so used.
It was further held in this case that the use as a decoration in the drawing room which is only calculated to give a pride of possession is not contemplated by the exemption and that the personal use which is contemplated by the exemption is the use of like nature as the use of other items mentioned in the clause, namely, furniture, household utensils, wearing apparel and provisions.
It was further held in that case that the expression "intended for personal or household use" did not mean capable of being intended for personal or household use.
It meant normally, commonly, or ordinarily intended for personal or household use.
This in our opinion is the true concept of the expression "personal use".
It is also significant that no exemption on behalf of the assessee was claimed in respect of the aforesaid effects under the aforesaid provision of the Wealth Tax Act.
The decision of this Court in Commissioner of Wealth Tax, Gujarat vs Arundhati Balkrishna (supra) on which strong reliance has been placed by Mr. Desai is of no assistance to the appellant as the point now sought to be agitated before us was never canvassed or considered in that case.
We are, therefore" of the considered view that the aforesaid articles were capital assets and not personal effects as contended on behalf of the assessee appellant and as such could not be excluded while computing the gains.
For the foregoing reasons, we do not find any merit in this appeal which is hereby dismissed with costs.
V.P.S. Appeal dismissed.

summary:
Section 2(4A) (ii), Income Tax 'Act, 1922, provides that 'personal effects, that is to say, movable property (including wearing apparel, jewellery, and Furniture) held for personal use by the assessee or any member of his family dependent on him, ' shall not be included in the 'capital assets ' of the assessee.
The context in which the expression 'personal effects ' occurs and the enumeration of articles like wearing apparel, jewellery and furniture, show that only those articles are to be included as personal effects which are intimately and commonly used by the assessee.
The dictionary meaning of the expression is also the same.
Therefore, 'personal effects ' mean those items which are normally, commonly or ordinarily intended for personal use and not items which are capable of being intended for personal use.
[425E 426F 427C D] Where the assessee was in possession of a large number of gold sovereigns, silver rupee coins and silver bars, which were used at the time of the puja of deities on special religious festivals or rituals, they could not be deemed to be 'effects ' meant for Personal use.
They are capital assets and not personal effects and so, when sold, could not be excluded while computing the capital gains liable to capital gains tax under section 12B, Income Tax Act, 1922.
[427F] G. section Poddar vs The Commissioner of Wealth Tax, Bombay City, II, I.L.R. , approved. ^


judgement:
Civil Appeal No. 1432 of 1968, (From the judgment and decree dated the 26 10 1959 of the Patna High Court in appeal from original decree No. 280 of 1953.) Sarjoo Prasad with D. Goburdhun, for the appellants.
V. section Desat with D. P. Mukherjee for respondents 3, 4, S, 6(a) 14 and is.
Ex parte, for respondents 1, 2, 6, 7 to 13 & 16 17.
The Judgment of the Court was delivered by KHANNA, J.
The plaintiff appellants field a suit in the Court of Subordinate Judge against 41 defendants for a declaration of their title to land measuring 142 bighas, 17 kathas described in the schedule to the plaint situated in village Shivpur Diar in District Shahbad.
Prayer was also made for delivery of possession of the land and for mesne profits amounting to Rs. 4,100.
The trial court dismissed the suit in respect of land measuring 28.36 acres out of plot No. 3863/ 41.
Suit in respect of the remaining land was decreed.
The plaintiffs were also held entitled to recover mesne profits from defendants who might be found in possession of the land decreed.
On appeal by defendants 3, 7, 12 and 14 the Patna High Court accepted the appeal and dismissed the suit in its entirety.
The plaintiffs have come up in appeal to this Court against the judgment and decree of the High Court on certificate granted under article 133 (1) (a) of the Constitution.
Village Shivpur Diar consists of five Mahals, Shivpuur Diar Nambari, Shivpur Diar Gangbarar Shurnali, Shivpur Diar Gangbarar Janubi, Shivpur Diar Sarju Barar and Shivpur Diar Naubarar.
Each of the two Mahals, Shivpur 'Diar Gangbarar Chummily and Shivpur Diar Nambari has 18 pattis.
Proprietorship rights in each patti were calculated as 16 annas.
One Brahmdeo Singh had a share of S annas 4 pies in patti Bhrighunath Singh in the above Mahals.
He also held different shares in the other pattis of the two Mahals.
Brahmdeo Singh mortgaged with possession his share in the said lands in favour of Sitaram Sahu and Sheogulam Sahu by means of several mortgage deeds.
As the mortgagees were dispossessed from some of the lands mortgaged in their favour, they filed a suit for recovery of the mortgage amounts.
Final decree was awarded in that suit on June 13, 1925.
In execution of that decree proprietary interest of Brahmdeo Singh in Mahal Shivpur Diar Nambari and Mahal Shivpur Diar Gangbarar Shumali were auctioned on June 15, 1932 and was purchased by Maine Kuer, widow of Sitaram Sahu mortgagee.
Sale certificate was granted to Maine Kuer auction purchaser on February 26, 1935.
She got delivery of possession of the land sold in her favour on March and 20, 1935.
On November 9, 1936 Shea Prasad Singh, who held general power of attorney from Maina Kuer, executed a patta (lease) for seven years in respect of 135 bighas, 15 kathas out of the land purchased by Maina Kuer in favour of Mahadeo Rai and others.
On September 27, 1940 Sheo Prasad Singh 557 executed on behalf of Maina Kuer a deed for perpetual lease of land measuring 134 bighas, 17 kathas out of the land purchased by her in favour of plaintiffs 1 to 9, 14, 16 to 18 and father of plaintiffs 10 to 13.
Three days later on September 30, 1940 Sheo Prasad Singh executed another deed for perpetual lease in respect of the remaining land measuring 8 bighas in favour of plaintiff No. 15.
On May 16, 1941 Mahadeo Rai and others, in whose favour lease deed of the land had been executed for seven years, relinquished their rights under the lease in favour of the plaintiffs.
On July 13, 1942 Maina Kuer sold her proprietary interest which she had acquired under the auction sale lo Rajendra Prasad Singh and others.
The plaintiffs in whose favour deed for perpetual lease of the land purchased by Maina Kuer had been executed filed the present suit in January 1950 against the defendants, on the allegation that defendants 1 to 18 had taken wrongful possession of the land.
Prayer was also made, as mentioned above, for recovery of Rs. 4,100 as mesne pretty.
It was also mentioned by the plaintiffs that proceedings under section 145 of the Code of Criminal Procedure in respect of the land in dispute had been initiated but as those proceedings were dropped the plaintiffs had to seek redress by means of the present suit.
The suit was resisted by the defendants who denied the title of the plaintiffs or Maina Kuer to the land in dispute.
It was also stated that the said land had not been partitioned.
Plea was also taken that the defendants had all along remained in possession of the land and the plaintiffs suit was barred by limitation.
The trial court dismissed the suit in respect of 28.36 acres of land on the ground that the defendants had built their houses on that land.
The plaintiffs suit was held to be barred in respect of that land on account of the doctrine of waiver and acquiescence.
The suit in respect of the remaining land, as already mentioned, was decreed.
on appeal the High Court held that the plaintiffs had failed to prove their title to the land in dispute.
The land in dispute, it was held, was not shown to be the same as had been purchased by Maina Kuer in auction sale.
The plaintiffs suit for possession of the land was also held to be barred by limitation.
In appeal before us Mr. Sarjoo Prasad on behalf of the appellants had made a number of contentions, but in our opinion, it is not necessary to go into all of them for the appeal is liable to be dismissed on the short ground that the plaintiff appellants have failed to establish that the land in dispute is the same as had been purchased in auction by Maina Kuer as per sale certificate dated February 26, 1935 and was thereafter leased on her behalf in favour of the appellants as per two lease deeds dated September 27 and 30, 1940.
It is not disputed that if on the above view of the matter the appellants are found to have not proved their title to the land in dispute, the question of going into other contentions would not arise.
Mr. Sarjoo Prasad, however, sub mist that the defendant respondents did not dispute in the trial court that the land in dispute was the same which had been purchased by Maina Kuer in auction sale and had been leased in favour of the 558 plaintiffs.
We find it difficult to accede to this submission.
In para 15 of their written statement defendants 2, 3, 12 and 14 stated as under: "That Maina Kuer was not ' at all auction purchaser of the property in dispute nor was she a proprietor nor Zamindar nor was she at any time in possession and occupation of the lands in dispute.
The allegation of the plaintiff in respect of these facts are altogether wrong." In the same language is couched para 15 of the written statement of defendant No. 7 who filed a separate written statement.
It was incumbent in view of the averments in para 15 of the written statements for the plaintiff appellants to establish by clear evidence that the land in dispute was the same which had been purchased in auction sale by Maina Kuer and had been subsequently leased by her in favour of the appellants.
The learned Judges of the High Court discussed the or and documentary evidence which had been adduced in the case and came to the conclusion that there was no cogent material to show that the land in dispute was the same which and been purchased by Maina Kuer and had been leased by her in favour of the appellants.
After hearing Mr. Sarjoo Prasad we find no sufficient ground to take a different view.
The land which had been purchased by Maina Kuer in the auction sale as per sale certificate dated February 26, 1935 was situated in Bihar district in the State o Uttar Pradesh on the left bank of the Ganges.
The land which is the subject matter of the present that land in situated in Shahbad district in the State of Bihar on the right bank of the Ganges.
Although the land is subject to river action, the onus to prove that the land in dispute in Shahbad district represents the land which got submerged as a result of the river action in Bihar district was upon the plaintiff appellants.
The appellants have failed as held by the High Court, to discharge this onus.
Mr. Sarjoo Prasad took us through the evidence of Ram Pachise Lall (DW 3) and Nanku Lall Singh (DW 5), but the evidence of these witnesses is far from proving that the land in dispute is the same as was purchased by Maina Kuer.
The evidence of Raghunath Prasad (PW 6), to which also passing reference was made, is not sufficient to connect the land in dispute with sale certificate dated February 26, 1935.
Prayer has also been made by Mr. Sarjoo Prasad for the remand of the case to the trial court as the plaintiff appellants were laboring under the impression that the defendant respondents had not disputed that the land in dispute was the same as had been purchased by Maina Kuer.
It is urged that because of that impression, material which could have clearly proved that the land in dispute was the same as had been purchased by Maina Kuer could not be brought on the record.
We find it difficult to accede to this prayer.
As already pointed out above, the contesting defendants clearly stated in their written state meets that Maina Kuer was not the auction purchaser of the land in dispute.
In view of that unequivocal averment, there was no vaIid 559 basis for the assumption or the impression under which plaintiff appeliants are stated to have labored.
Apart from that, we find that the suit out of which the present appeal has arisen was filed as long ago as January 1950.
From the title of the appeal we find that many of the original plaintiffs and defendants have during this period of more than a quarter of century departed and are no more in the land of the living, having bowed as it were to the inexorable law of nature.
They are now represented by their legal representatives.
To remand the suit to the trial court would necessarily have the effect of keeping alive the strife between the parties and prolonging this long drawn litigation by another round of legal battle in the trial court and thereafter in appeal.
It is time, in our opinion, that we draw the final curtain and put an end to this long meandering course of litigation between the parties.
If the passage of time and the laws of nature bring to an end the lives of men and women, it would perhaps be the demand of reason and dictate of prudence not to keep alive after so many years the strife and conflict started by the dead.
To do so would in effect be defying the laws of nature and offering a futile resistance to the ravage of time.
If human life has a short span, it would be irrational to entertain a taller claim for disputes and conflicts which are a manifestation of human frailty.
The courts should be loth to entertain a plea in a case like the present which would have the effect of con damning succeeding generation of families to spend major part of their lives in protracted litigation.
It may be appropriate in the above context to reproduce what was said in the case of Sant Narain Mafhur Ors.
vs Rama Krishna Mission & ors.(1): It is time, in our opinion, that we draw the final curtain on this long drawn litigation and not allow its embers to shoulder for a further length of time, more so when the principal contestants have all departed bowing as it were to the inexorable law of nature.
one is tempted in this context to refer to the observations of Chief Justice Crete in a case concerning peerage claim made after the death without issue of the Earl of oxford.
Said the learned Chief Justice: Time hath its revolutions; there must be a period and an end to all temporal things an end of names, and dignities and whatsoever is terrne, and why not of De Vere? For where is Bohun? Where is Mortimer ? Where is Mortimer ? Why, which is more and most of all, where is Plantagenet ? They are all entombed in the urns and sepulchers of mortality.
" What was said about the inevitable end of all mortal beings, however eminent they may be, is equally true of the affairs of mortal beings, their disputes and conflicts, their ventures in the field of love and sport, their achievements and failures for essentially they all have a stamp of mortality on them." (1) A.T.R.1974 S.C.2241. 560 one feels tempted to add that if life like a dome of many colored glass stains the white radiance of eternity, so do the doings and conflicts of mortal beings till death tramples them down.
The appeal fails and is dismissed but in the circumstances without costs.
P.H.P Appeal dismissed.

summary:
The plaintiff appellants filed a suit against defendants for a declaration of their title to the land in question admeasuring 142 bighas.
The trial Court dismissed the suit in respect of land admeasuring 28 acres and decreed the suit in respect of the remaining land.
The plaintiffs ' suit was held to be barred in respect of that land on account of the doctrine of waiver and acquiescence.
The plaintiffs were also held entitled to recover mesne profits.
On an appeal filed by some of the respondents, the High Court accepted the appeal and dismissed the suit in its entirety.
The High Court held that it was not shown that the disputed land was the same as had been purchased by Mina Kuer in auction sale.
The High Court also held that the plaintiffs ' suit for possession was barred by limitation.
The appellants contended.
(1) The respondent did not dispute that the suit land was the same which was purchased by Mina Kuer as per sale certificate dated 26 2 1935.
(2) In any case the matter may be remanded for determining the above issdue.
Dismissing the appeal, ^ HELD: (1) The appellants have failed to establish that the land in dispute is the same as has been purchased in auction by Mina Kuer as per sale certificate dated 26 2 1935.
The contention of the appellant that the respondents did not dispute that the suit land is the same as the one purchased by Mina Kuer is not correct.
The respondents did deny this fact in their written statement.
The land which is the subject matter of the present litigation is situate in the State of Bihar on the right bank of the Ganges.
Although the land is subject to river action, the onus to prove that the land in dispute in Bihar State represents the land in U.P. which got submerged as a result of river action was upon the appellants.
The appellants have failed to discharge this onus.
[557F, H, 558A, E] (2) The prayer of the appellants for remand of the case is rejected because there was no valid basis for the assumption of the appellants that the appellants did not dispute the identity of the land.
The suit was filed as long ago as in January, 1950.
During the pendency of this litigation many of the original plaintiffs and defendants have died and are now represented by their legal representatives.
It is time that we draw the final curtain and put an end to this long course of litigation between the parties.
If the passage of time and laws of nature bring to an end the lives of men and women it would perhaps be the demand of reason and dictate of prudence not to keep alive after so many years the strife and conflict started by the dead.
To do so would in effect be defying the laws of nature and offering a futile resistance to the ravage of time.
If human life has short span, it would be irrational to entertain a taller claim for disputes and conflicts which are a manifestation of human frailty. 'the Courts should be loth to entertain a plea in a case like the present which would have the effect of condemning succeeding generation of families to spend major part of their lives in protracted litigation.
[558G H, 559A D] Sant Narain Mathur vs Rama Rrishna Mission ; reiterated.


judgement:
Civil Appeal No. 1844/1975.
(Appeal by special leave from the judgment and order dated the 17 7 1974 of the Allahabad High Court in special appeal No. 121 of 1974) R. N. Trivedi and O. P. Rana, for the appellants.
section C. Aggarwal and V. J. Francis, for the respondent.
The Judgment of the Court was delivered by BEG, J.
This appeal by special leave granted to the Regional Manager of U.P. State Road Transport Corporation, Allahabad, challenges the findings of a learned single Judge, affirmed by a Division Bench of the Allahabad High Court holding that the respondent, Pawan Kumar Dubey, was reverted from the post of a Senior Station Incharge, in which he was officiating, to his substantive post of a Junior Station Incharge by means of an order dated 20 2 1973 passed as a measure of punishment inflicted upon him for alleged misconduct indicated by an adverse entry communicated to him by a letter dated 25th January, 1973.
His juniors, it was found, were still officiating in posts of Senior Station Incharge.
The respondent 's chances of promotion were said to be adversely affected by the reason given for the reversion in the impugned order: that the respondent was "not fit yet" for the higher post.
The learned single Judge and the Division Bench in the Allahabad High Court were referred to several decisions of this Court mentioned by the Division Bench These were: State of Bombay vs F. A. 542 Abraham(1); Champaklal Chimanlal Shah vs Union of India(2) Divisional Personnel Officer vs Raghavendrachar(3); and State of U.P. & Ors.
vs Sughar Singh(4).
The Allahabad High Court had followed what it considered to be the ratio decidendi of Sughar Singh 's case (supra), the last case of this Court available at the time.
Special leave to appeal was sought in the case before us on the ground that Sughar Singh 's case (supra) had been misunderstood by the High Court and required some elucidation by this Court.
Special leave was granted on condition that, in any event, the costs of the respondent will be borne by the appellants.
The question to be determined was assumed to be one of law only.
The appeal was, therefore, to be heard on the special leave paper 'Book with such additional documents from the record of the case as the parties may choose to file.
We find that, although a number of documents were filed, neither side has chosen to file a copy of the order impugned which has been interpreted by the single Judge as well as by the Division Bench of the Allahabad High Court as one amounting to award of a punishment not merely in the light of the circumstances preceding the order but also from the terms of the order itself and its effect upon the respondent 's future.
The question, therefore, arises whether we really have before us any point of law of such a nature as to justify interference in exercise of the exceptional powers of this Court under article 136 of the Constitution.
Even though we have come to the conclusion that the question before us is substantially one of fact, we would like to explain a little the law applicable to such cases in view of the submission that Sughar Singh 's case (supra) had led to some misunderstanding of it.
Not much clarification seems necessary so far as conditions for the application of Article 311(2) are concerned as this question has been considered and decided by this Court in a number of cases including the recent decision by a bench of seven Judges of this Court in Shamsher Singh & Anr.
vs State of Punjab (5).
It was pointed out in that case (at p. 937): "No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment on the facts and circumstances of the case.
If a probationer is: discharged on the ground of misconduct, or, inefficiency, or for similar reason, without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge, it may, in a given case, amount to removal from service within the meaning of Article 311(2) of the Constitution." (1) ; (2) [1964](5) S.C.R. 190.
(3) ; (4) ; (5) 543 Shamsher Singh 's case (supra) related to an order of termination of services of a probationer which, on the face of it, appeared to be innocuous.
Nevertheless, this Court, after examining the facts and circumstances constituting the background of the order and its consequences, held it to be substantially one of punishment and set it aside for a violation of Article 311(2) of the Constitution.
It was explained there (at p. 837): "Before a probationer is confirmed, the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post.
In the absence of any Rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other reason not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged.
No punishment is involved in this.
The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry.
But, in these cases, the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation.
If, on the other hand, the probationer is faced with an inquiry on charges of misconduct or inefficiency or corruption, and, if his services are terminated without following the perversions of Article 311(2), he can claim protection.
In Gopi Kishore Prasad vs Union of India A.I.R. 1960 S.C., 689, it was said that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by may of punishment.
Instead of taking the easy course, the Government chose the more difficult one of starting proceedings against him and branding him as a dishonest and incompetent officer".
It was also observed in Shamsher Singh 's case (supra) (at p. 838) "The fact of holding an inquiry is not always conclusive.
What is decisive is whether the order is really by way of punishment.
(See: State of Orissa vs Ramnarain Das ; If there is an enquiry, the facts and circumstances of the case will be looked into in order to find out whether the order is one of dismissal in substance (see: Modan Gopal vs State of Punjab (1963) 3 S.C.R. 716).
In R. C. Lacy vs State of Bihar & ors.
, (Civil Appeal No. 590 of 1962 decided on 23 October, 1963) it was held that an order of reversion passed following an enquiry into the conduct of the probationer in the circumstances of the case was in the nature of preliminary inquiry to enable the Government to decide whether disciplinary action should be taken.
A probationer whose terms of service provided that it could be terminated without any notice and without any 544 cause being assigned could not claim the protection of Article 311(2).
[See: R. C. Banerjee vs Union of India ; A preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employee has been held not to attract Article 311 [see.
Champaklal C. Shah vs Union of India On the other hand, a statement in the order of termination that the temporary servant is undesirable has been held to import an element of punishment [See: Jagdish Mitter vs Union of India, A.I.R. 1964 S.C. 449]".
We think that the principles involved in applying Article 311(2) having been sufficiently explained in Shamsher Singh 's case (supra) it should no longer be possible to urge that Sughar Singh 's case (supra) could give rise to some misapprehension of the law.
Indeed, we do not think that the principles of law declared and applied so of have really changed.
But, the application of the same law to the differing circumstances and facts of various cases which have come up to this Court could create the impression sometimes that there is some conflict between different decisions of this Court.
Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood.
It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar.
One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.
We have examined the record of the case of Sughar Singh (supra).
our judgment in the case perhaps does not fully bring out the factual background on which the decision of that case was based.
In that case, the Government servant concerned had been suspected of making an alteration in his own service record.
It was not shown how he could possibly have had access to his service record as he was not in charge of the record.
One of the alterations made meant an increase in his age so that he would, according to the altered state of the record, have had to retire earlier.
Sughar Singh complained, when asked to show cause against the alleged tampering, that it must have been manipulated by his enemies interested in injuring him.
It could not be determined who was responsible for the alterations.
Nevertheless, the following adverse entry was made on Sughar Singh 's record: "1966 Is suspected to have got entries of date of birth and educational qualifications altered on the authority of a fictitious certificate which had to be corrected later on.
Severely warned".
Two years later, as a result of this entry based expressly on bare suspicion, without further inquiry into the question whether Sughar Singh could be responsible for tampering with the record, a reversion order, innocuous on the face of it, had been made on 12th August 1968.
The effect of the reversion order was that Sughar Singh who, 545 apart from this entry, had an excellent record, was reverted from a post in which he had been officiating from 16th March, 1961, until the reversion order dated 12th August, 1968.
It was shown that about 200 officers, junior to him, were still officiating in the cadre from which Sughar Singh had been reverted to his substantive post of Head Constable.
No administrative need or exigency could be shown to justify the reversion order.
All officers, including Sughar Singh, who had been officiating, had been selected after special training for the higher cadre.
The question, naturally arose: Why was Sughar Singh selected for this discriminatory treatment ? A single Judge of the Allahabad High Court held, acting on the Principle that a mere reversion, from a post to which the incumbent had no right, did not amount to punishment within the meaning of Article 311(2) so that Sughar Singh had no remedy.
He only took the for of the action into account.
No further probe was considered necessary by the learned Judge.
When the case came before a Division Bench, in special appeal, one of the learned Judges agreed with the learned single Judge who had dismissed Sughar Singh 's position merely on the ground that Sughar Singh had no right to the post without considering the impact of the surrounding facts or the background of the order.
The other learned Judge, however, carefully examined the background of Sughar Singh and the reversion order as revealed by facts on record.
He pointed out that the averments of Sughar Singh, that he had a splendid record, apart from the adverse entry in question, and that there was no inefficiency on his part, were not controverted in the counter affidavit filed.
This learned Judge found the reversion order against Sughar Singh to be punitive.
He, however, added that, even if the order could not be held to be punitive, it was certainly violative of the guarantee contained in Article 16(1) of the Constitution.
When the matter was heard by Verma, C.J., on a reference occasioned by the difference of opinion between the two learned Judges on the Division Bench, it was again argued that both Articles 16(1) and 311(2) had been infringed.
The learned Chief Justice did not find sufficient material to uphold a violation of Article 16.
But, after taking into account the admission of the Counsel appearing for the State that the sudden reversion of Sughar Singh could not at all be explained or accounted for unless it could be linked with the adverse entry, the learned Chief Justice held the action against Sughar Singh to be punitive and violative of Article 311(2) of the Constitution.
Sughar Singh had been held to have been punished for nothing beyond what had taken place two years before the reversion order so that it could not have been justly or reasonably connected with the delayed action based upon it.
This Court could have dismissed the appeal by special leave solely on the ground that no question of law arose on the finding of fact, also upheld by this Court that Sughar Singh was punished, in substance, so that Article 311 (2) was attracted.
This Court 's judgment in Sughar Singh 's case (supra) shows that it was only following the law on Article 311(2) of the Constitution as laid down repeatedly earlier by this Court.
It specifically referred to 546 the following cases: Purshotam Lal Dhingra vs The Union of India(1); State of Punjab & Anr.
vs Sukh Rai Bahadur(2); State of Orissa vs Ram Narayan Das(3); B. C. Lacy vs State of Bihar(4); Jagdish Mitter vs Union of India(5); A. G. Benjamin vs Union of India(6); Ram Gopal Chaturvedi vs State of Madhya Pradesh(7); Union of India vs Gajendra Singh(8); Divisional Personnel Officer vs Raghavendrachar (supra); Union of India vs Jaswan Ram (9); Madhav vs State of Mysore(10); State of Bombay vs Abraham (supra),.
In Sughar Singh 's case, this Court summarised the propositions of law deducible from the cases mentioned above; and, while considering the applicability of some of the propositions of law to the facts of the case, it did observe that, on the face of it, the action against Sughar Singh did not appear to be punitive.
Nevertheless, on a total consideration of all the facts, including the admission in the High Court before Verma, C.J., by the Standing Counsel appearing on behalf of the State, that the reversion order could not be explained except as a result of the adverse entry made two years earlier, it had finally applied the ratio decidendi of the State of Bihar & Ors.
vs Shiva Shukshuk Mishra(11), where this Court had affirmed the opinion of the High Court, on facts, that the "reversion was not in the usual course or for administrative reasons but it was after the finding on an enquiry about some complaint against the plaintiff and by way of punishment to him".
On this view of the case, it was not really necessary for this Court to consider whether the reversion of Sughar Singh was contrary to the provisions of Article 16 also.
Nevertheless, this Court held there, alternatively, after referring to State of Mysore vs P. P. Kulkarni (19), that the action taken against Sughar singh also resulted in a violation of the provisions of Articles 14 and 16 of the Constitution.
It seems to us to be clear, after examining the record of Sughar Singh 's case (supra), that what weighed with this Court was not only that there was a sufficient "element of punishment" in reverting Sughar Singh: for a supposed wrong done, from which the order of reversion could not be divorced, so that Article 311(2) had to be complied with, but, there was also enough of an impropriety and unreasonableness in the action taken against Sughar Singh, solely for a very stale reason, which had become logically quite disconnected, to make out a case of "malice in law" even if it was not a case of "malice in fact".
If an authority acts on what are, justly and logically viewed, extraneous sounds, it would be such a case.
All these aspects of the case were kept in view.
by this Court when it recorded the conclusion: "In this view of the matter, we have no doubt that the order was passed by way of punishment, though all outward indicia show the order to be a mere order of reversion.
Even if it were not so, we have no doubt that the order would be (1) ; (2) (3) [1961](1) S.C.R. 606.
(4) C.A. No. 590 of 1962 decided on 23 10 63.
(5) A.I.R. 1964 S.C. 449.
(6) C.A. No. 1341 of 1966 decided on 13 12 66.
(7) [1970](1) S.C.R. 472.
(8) [1972](3) S.C.R. 660.
(9) A.I.R. 1958 S.C. 905.
(10) A.I.R. 1962 S.C. 811.
(11) [1971](2) S.C.R.191 (12) A.I.R. 1972 section C. 2170.
547 liable to be quashed on the ground of contravention of Articles 14 and 16 of the Constitution".
We do not think that Sughar Singh 's case, in any way, conflicts with what has been laid down by this Court previously on Article 311(2) of the Constitution or Article 16 of the Constitution.
We would, however, like to emphasize that, before Article 16 is held to have been violated by some action there must be a clear demonstration of discrimination between one Government servant ' and another, similarly placed, which cannot be reasonably explained except on an assumption or demonstration of "malice in law" or "malice in fact".
As we have explained, acting on a legally extraneous or obviously misconceived ground of action would be a case of "malice in law".
Orders of reversion passed as a result of administrative exigencies, without any suggestion of malice in law or in fact, are unaffected by Sughar Singh 's case (supra).
They are not vitiated merely because some other Government servants juniors in the substantive rank, have not been reverted.
This Court has held in section C. Anand vs Union of India(1), that no question of applying Articles 14 or 16 could arise where a termination of service takes place in terms of a contract of service.
Again, in Champaklal Chiman Lal Shah (supra), this Court held that the motive behind an order of termination of service, in accordance with the terms of a contract, would not be really relevant even if an enquiry had been held to decide whether proceedings under Article 311(2) should be instituted or the services of a Government servant terminated in terms of his contract.
Champaklal Chimanlal Shah 's case (supra was not one in which any question of mala fides arose.
Protection of Article 16 was claimed there on the ground that Rule 5, providing for termination of services of temporary servants, was itself hit by Article 16.
Such a contention was repelled.
On the other hand, Kulkarni 's case (supra), relied upon in Sughar Singh 's case (supra), was one in which "misuse of power" or detournement de puvoir" (as it is called in French Administrative law), had been proved.
Another term for such use of power for an improper object is "malice in law".
We repeat that, before any such case of "malice in law can be accepted, the person who alleges it must satisfactorily establish it on proved or admitted facts as it was in Kulkarni 's case (supra).
Where the allegations are of malice in fact, which are generally seriously disputed, and the case cannot be satisfactorily decided without a detailed adduction of evidence of cross examination of witnesses, Courts will leave the party aggrieved to an ordinary civil suit.
This rule, relating to exercise of discretionary powers under Article 226, is also well settled.
We have tried to gather, from such materials on the record of the case before us as have been made available to us by the parties, the spirit and substance", to use the expressions employed by this Court in Champaklal 's case e (supra), of the action taken against the contest (1) ; 548 ing respondent.
We have examined the background of the order of reversion.
We find that, on the one hand, there is fulsome praise, ill testimonials given to the respondent by his superior officers, for meritorious work done by him.
On the other hand, we find that, preceding the order of reversion, passed on 20th February, 1973, against the respondent, there is a spurt of warnings and very vague complaints and adverse remarks of 30th September, 1972, and 4th October, 1972, 21st October, 1972, and 25th January, 1973, presumably all by a particular superior officer, alleging disrespect shown, disobedience to orders given, and aspersions said to have been cast by the respondent against the conduct of the superior officer.
The respondent was warned by this superior officer, an Assistant General Manager, by a letter dated the 4th October, 1972.
There is also a copy of an order on a complaint against the respondent that the respondent had misused the services of a Chowkidar.
The detailed order of 2nd June, 1970, shows that, although, the complaint was dismissed by the General Manager, yet, he had admonished the respondent and had advised him to conduct himself more respectfully towards superior officers and to be "sweet tempered".
There were some old adverse entries also against the respondent.
But, they must be deemed to have been washed off by orders of his promotion, on an "ad hoc" or officiation basis, by an order of 7th March, 1972, which had been approved by the Deputy Transport Commissioner of Uttar Pradesh on 18th March, 1972, as required by the rules.
It appears that the respondent had asked for particulars to meet the vague allegations of insubordination and disobedience which had found their way into his service record for 1972 to 1973.
It has not been shown that the respondent was supplied with these particulars.
He professed ignorance of occasions on which he had been disrespectful or of existence of any orders which had been disobeyed by him.
These particulars could have been easily supplied to him if the allegations against him were justified The respondent 's representation against the last adverse entry, of the kind indicated above, made on 25th January, 1973, was pending when the reversion order of 20th February, 1973, was passed.
His allegations that his juniors are still holding the posts in the cadre in which he was officiating and that there are no administrative reasons for his reversion are not controverted.
In these respects, the facts of the case are similar to those of Sughar Sungh 's case (supra).
In addition, as the High Court points out, the express condemnation of the respondent as "not fit" for the higher post, in which his juniors were allowed to officiate, categories him as inferior to his juniors even if it was qualified by the addition of the word "yet".
The only possible justification which could be offered for this discriminatory treatment were the sudden adverse entries of 1972 73 against the respondent which were quite vague.
If there had been anything really serious against the respondent, proceedings under Article 311 (2) of the Constitution should have been instituted.
Indeed, they can still be taken if there are substantial grounds against the respondent.
On the other hand, if the action against him is due merely to a feeling of pique or anger with him on the part of his superior officers, to which the respondent 's tactlessness 549 may have contributed, it did not deserve anything more than the warnings and the adverse entry.
Indeed, even the bona fides of the last adverse entry becomes doubtful when we find that the respondent was not, despite his requests, given particulars of any facts upon which the conclusion that he was disrespectful or disobedient was based.
To allege such misconduct against him and then to stigmatise the respondent as "not fit" for working in the higher post could appear, on the facts and circumstances of the particular case, to be more vindictive than just and fair.
It may mar or delay his chances of promotion in future.
We, however, refrain from commenting further on what may or may not have been the real cause of the respondent 's reversion.
If the respondent is really unfit or inefficient, as compared with his juniors, there is no reason why, on a comparative assessment of merits, at a time when such assessment may be called for under the rules (there should be rules on the subject if there are none so far), his juniors in service should not be preferred over him.
A decision given after fair comparisons with records of others officiating in the same cadre would have ensured that no violation of Article 16 took place.
The sudden reversion of the petitioner, for the reason given in tile reversion order, could be held to amount to an unjustified stigma which could not be said to be "devoid of an element of punishment".
As we have indicated, there is no magic formula or uniform set of facts which could convert even an apparently colourless or innocuous order into punitive or unjustifiably discriminatory action.
It is, however, well established that even an apparently inoffensive order may fail to pass tested imposed by Articles 16 and 311 of the Constitution.
Dealings of superior officers with their subordinates in Government service in a Welfare State must be shown to be based on fair play and reason when facts are actually proved which indicate that these requirements may be lacking.
Even if the case before us could be one in which the High Court could have refrained from interfering, we do not consider it to be a fit case for invoking our jurisdiction under Article 136 of the Constitution.
The High Court has only quashed an order of reversion which was detrimental to the respondent and was passed in violation of rules of natural justice.
It did not give the respondent any other or consequential relief.
And, as we have already indicated, it is still open for the authorities to proceed in a just and legal way against the respondent if there is really a substantial case against him deserving punitive action.
As we are leaving the authorities free to take action, in accordance with either applicable rules for a comparative assessment of merits of 550 the respondent and others who may be eligible to officiate in the post of a Senior Station Incharge, or, to take disciplinary proceedings, it considered necessary no observation made that in this judgment or by the High Court will operate as a finding on any question except that the quashed reversion order was punitive and passed contrary to rules of natural justice embodied in Article 311(2).
It is not necessary to invoke the aid of Article 16 of the Constitution at all on such a finding.
This, we think, was also the position in Sughar) Singh 's case (supra) .
This appeal is dismissed with costs.
V.P.S. Appeal dismissed.

summary:
The respondent was reverted from the higher post in which he was officiating, to his substantive post, by an order which stated that he was 'not fit yet ' for the higher post.
His juniors continued to officiate in the higher post.
Till some time before the order of reversion, the respondent was praised by his superior officers, but, during a period of about six months before the reversion, there was a spurt of warnings, complaints, and adverse remarks, alleging disrespect, disobedience to orders, and that he cast aspersions on his superior officer.
the respondent asked for particulars to meet the allegations, but they were not given to him.
His representation against the last adverse entry was pending when the reversion order was passed.
He challenged the order and the High Court, following State of U.P. vs Sughar Singh , quashed the order, holding that the reversion was a punishment in the light of the circumstances preceding the order, from the terms of the order, and its effect on the respondent 's future and that there was a violation of rules of natural justice.
In appeal to this Court by special leave, the appellant contented that the High Court misunderstood Sughar Singh 's case.
Dismissing the appeal, ^ HELL): (1) As the reversion order was punitive and passed contrary to the rules of natural justice embodied in article 311(2), it must be quashed.
The authorities are, however, free to take action, either in accordance with applicable rules for a comparative assessment of the merits of the respondent and others who may be eligible, or to take disciplinary proceedings.
[550A B] (a) In Sughar Singh 's case, this Court was only following the law on article 311(2) as laid down repeatedly.
In that case also the reversion of Sughar Singh was apparently not punitive, but, since it could not be explained except as a result of an adverse entry made two years earlier, it was held to be by way of punishment.
On this view it was not necessary to consider whether there was a violation of article 16, but this Court held that there was.
What weighed with this Court was not only that there was a sufficient element of punishment in reverting him so that article 311(2) had to be complied with, but that there was also enough of impropriety and unreasonableness in the action taken solely for a very stale reason which had become logically disconnected and extraneous, to make out a case of 'malice in law ' if not 'malice in fact '.
[545H 546F] (b) Whether an apparently innocuous order is punitive or amounts to unjustifiable discriminatory action violating either article 311 or article 16 depends on the facts of the case.
[549E] (c) This Court has, in Shamsher Singh vs State of Punjab ; , laid down authoritatively the conditions necessary in such cases for the applicability of article 311(2) after considering all the previous cases and there is no scope for any misapprehension of the law.
[544C] (d) As regards article 16, before it is held to have been violated, there must be discrimination between one Government servant and another, similarly placed.
which cannot be reasonably explained except on the basis of 'malice in law ' or 'malice in fact '.
But, the person who alleges such malice in law must 541 satisfactorily establish it on proved or admitted facts as in State of Mysore vs A Kulkarni (AIR When the allegations, are of 'malice in fact ' which are disputed and require a detailed adduction of evidence or examination of witnesses, the Court will leave the party aggrieved to an ordinary civil suit and will not exercise its discretionary power under article 226.
Reversion of an officer as a result of administrative exigencies, without any suggestion of malice in law or in fact, is unaffected by Sughar Singh 's case, and is not vitiated even if some Government servants, junior to him, have not been reverted.
[547B D, F G] (e) The facts of the present case are similar to those of Sughar Singh 's case and the High Court was right in holding that there was a violation of the principles of natural justice embodied in article 311(2).
[548F G] There were no administrative reasons for the respondent 's reversion.
If there had been anything really serious against him, proceedings under article 311(2) should have been instituted.
The sudden reversion for the reason given in the order amounts to unjustified stigma which could not be said to be devoid of the element of punishment.
[548G H, 549D L] (f) If he was really unfit as compared with his juniors there could have been a fair comparison with them at a time when such assessment is called for under the rules (rules should be made if there are none) and on such a comparative assessment of merits, the juniors could have been preferred ensuring that there was no violation of Act.
Dealings of superior officers with their subordinates in Government must be shown to be based on fair play and reason.
But it is not necessary to invoke the aid of article 16 to quash the order.
[549 C D, E , 550B] (2) Even if the High Court should not have interfered, it is not a fit ease for interference by this Court under article 136, as it is still open to the authorities to proceed in a just and legal way against the respondent if necessary.
[549F H]