judgement:
ivil Appeal No. 3573 of 1991.
From the Judgment and Order dated 25.6.1991 of the Bombay High Court in W.P. No. 1926 of 1991.
G. Ramaswamy, Attorney General, K.K. Jain, G. Banerjee, Pramod Dayal and Ajay K. Jain for the Appellants.
S.V. Mehta, A.K. Sanghi, Manjul Bajpai and section Grover for the Respondent.
Gopal Subramanium, Manjul Bajpai and section Grover for the Intervenor.
The Judgment of the Court was delivered by KANIA, J.
Leave granted.
Counsel heard.
This appeal is being disposed of, by consent, at the stage of granting of special leave in view of the urgency.
Appellant No. 1 is the Institute of Chartered Accountants of India, a body incorporated under the , (hereinafter referred to as "the Act").
Appellant No. 2 is the Secretary of Appellant No.1, Institute.
Appel lant No. 1 was formed with the object of regulating the profession of the Chartered Accountants.
Section 9 of the Act provides for the constitution of the Council of Appel lant No.1, Institute, and prescribes that the affairs of the said Institute shall be managed by the said Council which comprises not more than 24 persons elected by the fellows of the Institute and 6 persons nominated by the Central Govern ment.
Sub section (1) of Section 10 of the Act provides that the election of the said Council shall be conducted in the prescribed manner.
Section 30 of the Act confers powers upon the Council to make regulations for the purpose of carrying out the objects of the Act.
In exercise of the said powers, the Council framed regulations known as "the Chartered Accountants Regulations" (hereinafter referred to as "the Regulations").
Chapter VI of the said Regulations 924 deals with the topic of "Elections".
Regulation 82 provides that the Council shall notify in the Gazette of India, at least three months before the 'date of an election, the dates fixed for various stages of election of the members of the Council, like receipt of nominations.
scrutiny of nomi nations, withdrawal of nominations, polling dates and so on.
Regulation 87(1) provides that the Council shall publish in the Gazette of India a notice, setting out the number of members to be elected and calling for nominations of candi dates for election by a specified date, at least three months prior to the date of election.
Sub regulation (2) of Regulation 87 which is the regulation coming up for con struction before us reads as follows: (2) The nomination of a candidate shall be (i) In the appropriate form duly signed by the candidate and by the proposer and the seconder both of whom shall be persons entitled to vote in the election in the relevant regional constituency; and (ii) forwarded by registered post to the Secretary by name so as to reach him not later than 5 p.m. on the specified date.
Provided that a nomination delivered against an acknowledgement before the afore said time and date shall be deemed to have been so forwarded and so having reached if the Secretary is satisfied that the nomination has been duly fowarded by registered post at least 48 hours before the aforesaid time and date.
" Sub regulation (3)of Regulation 87 provides inter alia for the contents of the nominations.
We are not concerned with the rest of the regulations for the purpose of this appeal.
The final time for the receipt of the nominations ,was fixed as 5.00 p.m. on 20th May, 1991, and it was extended to 5.00 p.m. on 21st May, 1991.
The respondent forwarded his nominations by registered post to the Secretary on May 17, 1991, and May 18, 1991, respectively.
The nominations, however, did not reach the Secretary by 5.00 p.m. on May 21, 1991, being the final time and date prescribed for the receipt of the nominations.
Actually, they were received by the Secretary of 925 the Council by registered post on May 23, 1991, and May 27, 1991, respectively.
These nominations were rejected on the ground that they were received after the time fixed for the receipt of the nominations and the name of the respondent was not included in the list of the candidates who had filed their nominations for election to the Council.
Being ag grieved, the respondent filed a writ petition in the Bombay High Court seeking a writ of certiorari to quash the order rejecting his nominations.
The Division Bench of the Bombay High Court, which decided the writ petition, took the view that a plato reading of subregulation (2) of Regulation ' 87 made it clear that the Only mode prescribed by the Regula tions is to tender the nomination by registered post and the rigour of the rule that the nominations must reach before the specified date and specified time, Was relieved by the insertion of the proviso.
It was held by the Division Bench that once the Secretary was satisfied that a nomination had been duly fowarded by registered post to him at least 48 hours before the specified date and time, it must be deemed to have been received within the time provided.
On the basis of this conclusion the High Court made the rule absolute.
It is the correctness of this decision which is sought to be challenged before us.
It was submitted by learned 'Attorney General who ap peared on behalf of the appellants that under sub regulation (2) of Regulation 87, the general rule is that the nomina tions must be forwarded by registered post and must reach the Secretary of the Council not later than 5.00 p.m. on the specified date, the specified date in this case being May 21, 1991.
It was further urged by him that the proviso which, to a certain extent, relaxed this rule came into play only where a nomination was delivered to the Secretary against an acknowledgement before the specified time and specified date and the Secretary was satisfied that a valid nomination had been duly fowarded by registered post to him at least 48 hours before the specified date and time.
It was contended by learned Attorney General that the learned Judges of the Bombay High Court had erred in disregarding the opening part of the proviso which read "provided that a nomination delivered against an acknowledgement before the aforesaid time and date. . " In our view, there is a considerable force in the sub mission of learned Attorney General.
It is trite to say that in construing any regulation or rule it would not be proper to ignore any part of it except in special circumstances.
Moreover, accepting the construction placed by the Bombay High Court on the said proviso would lead to a startling result; for examle, a nomination might have to be treated as 926 received within the specified the and.date even though it might never have reached the Secretary at all or might reach the Secretary after the date of the election, merely because the Secretary is satisfied that the nomination had been duly forwarded to him by registered post at least 48 hours before the specified time and date.
1 is not unknown that the letters sent by registered post are occasionally received after a long delay of several weeks and on some occasions they do not reach at all.
If the construction placed on the said proviso in the impugned judgment were accepted, in such a case as aforestated the entire election would have to be set aside leading to great confusion and hardship.
This consequence must necessarily follow if the view taken by the Bombay High Court were to be accepted in our opinion,the entire scheme of sub regulation (2) and the proviso shows that one of the main pre conditions required before a nomi nation can be said to have been duly received, is that a valid nomination must be received by the Secretary before the specified time and date.
It is true that the rule, in terms, requires that the nominations should be sent by registered post, but taking into account the fact that such a nomination might not be received by the Secretary even though posted more than 48 hours before the specified time and date, it was provided that if the nomination was delivered, let us say, by hand to the Secretary before the specified time and date against acknowledgement, that nomination would be treated as having been validly received provided the Secretary was satisfied that the nomination was forwarded by registered post to him by the candidate 48 hours prior to the specified time and date.
It was contended on behalf of the respondent that in the light of the proviso to sub regulation (2) of Regulation 87 what was intended to be prescribed by the use of the expression so as to reach him not later than 5.00 p.m. on the specified date in clause (ii) of sub regulation (2) of Regulation 87, was that the nominations which had been forwarded by registered post to the Secretary 48 hours before the specified time and date of the election must be deemed to have reached the Secretary in time.
In our view, this contention is fallacious.
What is meant by the use of the aforesaid expression in sub regulation (2) of Regulation 87 is that the nomination must be forwarded by registered post to the.
Secretary so as to reach him in fact or actually reach him not later than 5.00 p.m. on the specified date.
The rigour of the rule is relaxed by the proviso under which if the nomination was delivered against an acknowledgement before the specified time and date, it would be deemed to have been forwarded and to have reached as provided in clause (ii) of sub regulation (2) referred to earlier pro vided the Secretary was satisfied that the nomi 927 nation had been duly forwarded by registered post at least 48 hours before the aforesaid time and date.
In view of the reasoning set out earlier, we set aside the judgment and order passed by the Bombay High Court and we hold that the nomination of the respondent was liable to be rejected on the ground that it was not received in time, as the respondent had failed to deliver to the Secretary against an acknowledgment a nomination before the specified time and date.
However, we find that, in the present case, the elections have already been postponed and the proposed dates for elections will now to be probably fixed in October or November, 1991.
In these circumstances, we direct that all the nominations received upto the end of August 1991 must be treated as received in time provided that the Secre tary is satisfied that they were forwarded by registered post 48 hours before the time and date specified earlier.
The Council may fix the elections on any date they consider proper.
The appeal is allowed to the extent aforesaid.
Looking to the facts and circumstances of the case, there will be no order as to costs.
We may suggest that if the Council so thinks, the regu lations may be suitably amended so as to leave no room for ambiguity, a difficult task indeed.
V.P.R. Appeal allowed.

summary:
The Respondent forwarded his nominations for election to the Council of the appellant No. 1 Institute by registered post to the Secretary, Appellant No. 1, on May 17, 1991, and May 18, 1991.
They were received on May 23, 1991, and May 27, 1991 respectively and were rejected on the ground that they were received after the time and date fixed for the reciept of the nominations, i.e., 5.00 p.m. on May 21, 1991.
Being aggrieved, the respondent filed a writ petition in the High Court seeking a writ of certiorari to quash the order rejecting his nominations.
The Division Bench of the High Court allowed the writ petition holding that once the Secretary was satisfied that a nomination had been duly forwarded by the registered post to him at least 48 hours before the specified date and time, it must be deemed to have been received within the time provided.
The Institute and its Secretary flied the SLP in this Court contending that under Regulation 87(2),the nominations must be forwarded by registered post and must reach the Secretary of ' the Council not later 922 than 5.00 p.m. on the specified date, i.e., May 21, 1991; that the proviso came into play only when a nomination was delivered to the Secretary against an acknowledgement before the specified time and specified date and the Secretary was satisfied that a valid nomination had been duly forwarded by registered post to him at least 48 hours before the speci fied date and time; and that the High Court had erred in disregarding the opening part of the proviso which read "Provided that a nomination delivered against an acknowl edgement before the aforesaid time and date. " The respondent contended that what was intended to be prescribed by the use of expression, "so as to reach him not later than 5.00 p.m. on the specified date" in clause (ii) of sub regulation (2) of Regulation 87, was that the nomina tions which had been forwarded by registered post to the Secretary 48 hours before the specified time and date of the election must be deemed to have reached the Secretary in time.
Allowing the appeal, this Court, HELD: 1.
The entire scheme of sub regulation (2) of Regulation 87 and the proviso shows that one of the main pre conditions required before a nomination can be said to have been duly received, is that a valid nomination must be received by the Secretary before the specified time and date.
[926C] 2.
It is true that the rule, in terms, requires that the nominations should be sent by registered post, but taking into account the fact that such a nomination might not be received by the Secretary even though posted more than 48 hours before the specified time and date, it was provided that if the nomination was delivered by hand to the Secre tary before the specified time and date against acknowledge ment, that nomination would be treated as having been valid ly received provided the Secretary was satisfied that the nomination was forwarded by registered post to him by the candidate 48 hours prior to the specified time and date.
[926D E] 3.
What is meant by the use of the expression, "so as to reach him not later than 5.00 p.m. on the specified date" in sub regulation (2) of Regulation 87, is that the nomination must be forwarded by registered post to the Secretary so as to reach him in fact or actually reach him not later than 5.00 p.m. on the specified date.
The rigour of the rule is relaxed by the proviso under which if a proper nomination was 923 delivered against an acknowledgement before the specified time and date, it would be deemed to have been forwarded and to have reached within the time prescribed provided the Secretary was satisfied that the nomination had been duly forwarded by the registered post at least 48 hours before the specified time and date.
[926G 927A]


judgement:
Criminal Appeal No. 538 of 1983.
From the Judgment and Order dated 6.4.1982 of the Andhra Pradesh High Court in Crl.
A. No. 469 of 1981.
G. Narasimhulu for the Appellants.
T.V.S.N. Chari, Ms. Suruchi Aggarwal and Ms. Manjula Gupta for the Respondent.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Nethala Pothuraju, Nethala Dhananjaya, Nethala Remudu and four others (hereinafter referred to as 'A 1 to A 7 ') were tried for the offences under Sections 147, 148, 323, 379 and 302 read with Section 149 I.P.C. on the allegations that they caused the death of Madda Laksha mandas of village Ramaraogudem on November 1, 1980 near the Tobacco garden of A 1.
The Trial Court acquitted A 7 of all the charges A 1 to A 6 were, however, found guilty for the offences punishable under Sections 148 and 302 read with section 149 I.P.C. They were sentenced to imprisonment for life.
On appeal, the High Court confirmed the conviction and sentence of A 1 to A 3.
The conviction and sentence of A 4 to A 6 was set aside by the High Court and they were acquit ted on the following reasoning: . . .
We feel that it would be safe to accept the evidence of P.Ws. 1 and 2 to the extent it is corroborated by the evidence 6 of P.W.3 in so far as the presence and partic ipation of the accused in the attack on the deceased is concerned.
Accepting the evidence of P.W.3 we hold that the identity of A 1 to A 3 in the unlawful assembly consisting of A 1. to A 3 and some other unidentified persons is satisfactorily established.
The manner in which the attack was made on the deceased can only lead to one inference namely that the common object of the unlawful assembly was to kill the deceased.
We accordingly confirm the conviction and sentence of A 1 to A 3 under Sections 148 and 302 read with 149 I.P.C. We set aside the conviction and sentence of A 4 to A 6 under Sections 148 and 302 read with 149 I.P.C. and acquit them." This Court granted leave to appeal on the limited ques tion of applicability of Section 149 I.P.C.
The learned counsel for the appellants has contended that after the acquittal of four accused persons by the courts below the conviction of the appellants under Section 148 and on applying 149 I.P.C. cannot be sustained.
It is argued that the appellants, being three in number, could not have formed an unlawful assembly within the definition of Section 141 I.P.C.
In our view, there is force in the contention of the learned counsel for the appellants.
The appellants being only three in number, there was no question of their forming an unlawful assembly within the meaning of Section 141 I.P.C.
It is not the prosecution case that apart from the seven accused persons there were some other unidentified persons who were involved in the crime.
The High Court clearly fell into error in confirming the conviction and sentence of the appellants under Sections 148 and on apply ing 149 I.P.C. on the ground that they formed an unlawful assembly alongwith some unidentified persons.
The prosecu tion case from the very beginning was that A1 to A7, the named persons, formed the Unlawful assembly.
A 4 to A 7 having been acquitted, the remaining three appellants cannot be convicted under Sections 148 and on applying 149 I.P.C. We, therefore, set aside the conviction of the appellants under the said sections.
The question still remains as to whether the appellants can be convieted under Section 302 read with Section 34 I.P.C.
Both Sections 149 and 34 I.P.C. deal with a combina tion of persons who become liable to be punished as sharers in the commission of offences.
The non applicability of Section i49 I.P.C. is, therefore, no bar in convicting the appellants under 7 Section 302 read with section 34 I.P.C. if the evidence discloses commission of an offence in furtherance of the common intention of them all.
PW 1, the wife of the deceased, PW 2, the daughter of the deceased and PW 3, an adjoining land owner, are the three eye witnesses to the occurrence.
It is in evidence that the complainant and the accused belonged to opposite factions and there was long standing enmity between the parties.
During the last 30 years, there had been murders and rioting between the two factions.
The deceased Madda Lakshamandas was undergoing life imprisonment for the murder of one of the persons belonging to the group of the accused.
He had come on parole.
On the day of occurrence at about 7.00 A.M. when he was passing near the field of A 1 he was attacked by the accused party.
According to the eye witness es, A 1 and A 3 were armed with spears, A 2, A 4, A 5 and A 6 with knives and A 7 was armed with a stick.
All of them way laid the deceased and dragged him into the Tobacco garden of A 1.
It is in evidence that all the accused indis criminately inflicted injuries on the deceased with their respective weapons.
When the deceased fell down the ac cused kept on giving him spear, knife and stick blows.
The deceased was crying for water and when his daughter brought water A 2 caught hold of her and pushed her aside.
She was also given beating by fists.
Thereafter, A 1 left the spear and took a stick and gave beating to the deceased on his heals and chest and A 3 chopped of the fingers of left hand of the deceased with the knife.
A 2 further gave blows to the deceased on his head.
The deceased died instantaneously on the spot.
Thereafter, at the asking of A 1, A 2 and A 3 dragged the dead body from the field of A 1 and placed the same on the road.
There were as many as 18 injuries on the person of the deceased.
Seven of those were deep penetrating wounds, 8 lacerated wounds and remaining were abrasions.
The injuries caused fracture on the right perietal bone result ing in the opening of the skull.
The fourth rib was broken and there was an injury to the lung.
There were injuries all over the body.
Keeping in view the manner of attack as disclosed by the eye witnesses and the number and nature of injuries, we have no hesitation in holding that the appellants made the mur derous attack on the deceased and caused his instantaneous death.
We are satisfied that the appellants acted in fur therance of their common intention of murdering the de ceased.
We, therefore, hold the appellants guilty under Section 302 read with Section 34 I.P.C. 8 Accordingly, we convert the conviction of the appellants to one under Section 302 read with section 34 I.P.C. and keep them sentenced to fife imprisonment.
Appellants A 1 and A 3 are on bail under orders of this Court.
We cancel the bail order.
These appellants shall surrender to their bail bonds to undergo the sentence of imprisonment.
T.N.A Appeal disposed of.

dataset_name: IN-Abs

summary:
Appellants (A1 to A3) were tried for the offences under Sections 147, 148, 323 and 309 read with section 149 of the Indian Penal Code.
The Trial Court acquitted A 7 of all the charges but convicted A 1 to A 6 under sections 148 and 302 read with section 149 and sentenced them to imprisonment for life.
On appeal the High Court acquitted A 4 to A 6 but confirmed the conviction and sentence of the appellants.
In appeal to this Court it was contended on behalf of the appellants that in view of the acquittal of four ac cused, the appellant 's conviction under section 148 and on applying section 149 cannot be sustained.
The appellants being three in number could not have formed unlaWful assem bly under section 141 IPC.
Disposing the appeal, this Court, HELD: 1.
The High Court erred in confirming the convic tion and sentence of the appellants under Section 148 and on applying 149 I.P.C. on the ground that they formed an unlaw ful assembly alongwith some unidentified persons.
The prose cution case was that the seven named accused formed the unlawful assembly and not that apart from the seven accused persons there were some other unidentified persons who were involved in the crime.
Four accused having been acquitted there was no question of the remaining three appellants forming an unlawful assembly within the meaning of section 141 of the Indian Penal Code.
Accordingly the appellants cannot be convicted under section 148 and an applying 149 I.P.C. Their conviction under the said sections is set aside.
[6F G] 5 2.
Both sections 149 and 34 I.P.C. deal with a combina tion of persons who become liable to be punished as sharers in the commission of offences.
The non applicability of Section 149 I.P.C. is, therefore, no bar in convicting the accused under Section 302 read with section 34 I.P.C. if the evidence discloses commission of offence in furtherance of the common intention of them all.
[6H, 7 A] 2.1 Keeping in view the manner of attack and the number and nature of injuries there is no hesitation in holding that the appellants acted in furtherance of their common intention, made the murderous attack on the deceased and caused his instantaneous death.
Therefore, they are held guilty under Section 302 read with Section 34 I.P.C. and are sentenced to life imprisonment.
[7G H]


judgement:
Criminal Appeal No. 393 of 1979.
From the Judgment and Order dated 26.4.1979 of the Tamil Nadu High Court in Criminal Appeal No. 197 of 1978 and Crl.
Revision Case No. 833 of 1977.
U.R. Lalit and K.R. Choudhary for the Appellants.
K.V. Venkataraman for the Respondent.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Parusuraman @ Velladurai, Karuppaiah, Nagasundaram and four others (hereinafter referred to as A1 to A7) were tried for the murder of one Jawahar.
Three charges were framed against them.
A7 was charged under Section 302 read with Section 109, I.P.C. for instigating A1 to 6 to commit the murder.
The second charge related to rioting wherein A1, A2, A4, A5 and A3, A6 were tried under Sections 147 and 148 I.P.C. respectively.
The third charge under Section 302 read with Section 149, I.P.C. was against Al to A6 on the allegations that Al, A2, A4 and A5 armed with sticks, A3 armed with aruval (bill hook) and A6 armed with vel stick (spear stick), attacked Jawahar at about 8.30 A.M. on January 2.8, 1977 and caused him multiple injuries as a result of which he died on the same day.
All the ac cused persons were acquitted by the learned Trial Judge.
On appeal the High Court maintained the acquittal of A4 to A7 but reversed the findings in respect.
of A1to A3.
Believing the prosecution evidence, the High Court came to the conclusion that the commission of offence by A1 to A3 was proved.
They were convicted under Section 304 Part I read with Section 34, I.P.C. and were sentenced to undergo rigor ous imprisonment for five years.
This appeal by A1 to A3 via special leave petition is against the judgment of the High Court.
While granting special leave to appeal this Court by its order dated August 10, 1979 allowed bail to the appel lants.
We have heard learned counsel for the parties.
We agree with the High Court that the participation of the appellants in the occurrence which resulted in the death of Jawahar has been proved beyond doubt.
We are, however, of the view that keeping in view the nature of injuries on the person of the deceased and the facts and circumstances of this case the 3 offence committed by the appellants come within the mischief of Section 325 read with 34, I.P.C. Thirteen external in juries were found on the dead body of Jawahar.
Out of those 11 were on lower legs and arms.
The High Court while consid ering the nature of offence observed as under: "These accused and their associates who be set themselves on Jawahar could never have intend ed to cause the death of Jawahar for, if such was their intention, they could have certainly killed him especially after carrying him into the cholam field and left him dead there instead of merely causing simple and grievous injuries to him.
Even with reference to the aspect whether the accused persons could have, intended to cause such injuries as would be sufficient, in the ordinary course of nature, to cause death, we are not able to give a finding in favour of the prosecution.
Even according to Jawahar 's statement (Exhibit P 6) all that first accused had remarked was that the attack on him was in retaliation for the injuries Jawahar had caused on the first accused a few weeks earlier.
" Agreeing with the above observations of the High Court we are of the opinion that the intention of the appellants was to cause grievous hurt and as such the offence committed by them comes within the parameters of Section 325, I.P.C. We, therefore, set aside the conviction and sentence of the appellants under Section 304 Part I, I.P.C. read with Sec tion 34, I.P.C. and instead convict them under Section 325, I.P.C. read with Section 34, I.P.C. We impose the sentence of imprisonment already undergone by the appellants.
We also impose the sentence of Rs. 7,000 each as fine on the appel lants.
The appellants shall deposit Rs. 7,000 each before the Trial Court within four months from today.
In the event of non payment of fine the appellants shall undergo rigorous imprisonment for five years.
The amount of Rs. 21,000 rea lised as fine from the appellants be paid to the father/mother of deceased Jawahar.
In the event of none of them surviving the amount shall be paid to Indra sister of deceased Jawahar.
The appeal is disposed of in the above terms.
V.P.R Appeal disposed of.

summary:
Three charges were framed against the appellants A1 to A7.
A7 was charged under Section 302 read with Section 109, I.P.C. for instigating A1 to 6 to commit the murder Al, A2, A4, A5 and A3, A6 were tried under Sections 147 and 148 IP.C., respectively and the third charge under section 302 read with Section 149, I.P.C. was against A1 to A6 on the allegations that Al, A2, A4 and A5 armed with sticks, A3 armed with/ aruval (bill hook) and A6 armed with vel stick (spear stick), attacked the deceased at about 830 A.M. on January 28, 1977 and caused him multiple injuries, as a result of which he died on the same day.
All the accused persons were acquitted by the learned Trial Judge, against which when appeal was filed, the High Court maintained the acquittal of A4 to A7 but reversed the findings in respect of A1 to A3 and were convicted under Section 304 Part I read with Section 34, I.P.C. and were sentenced to undergo rigorous imprisonment for five years, against that, this appeal was filed by the appellants A1 to A3 via Special Leave Petition.
Disposing the appeal, by modifying the sentence, this Court, HELD: 1.
Thirteen external injuries were found on the dead body of the deceased.
Out of these 11 were on lower legs and arms.
The intention of the appellants was to cause grievous hurt and as such the offence committed by them comes within the parameters of Section 325, I.P.C. Keeping in view the nature of injuries on the person of the deceased and the facts and circumstances of this case the offence committed by the appellants comes within the mischief of Section 325 read with 34, I.P.C. and convicted them under Section 325, I.P.C. read with Section 34, I.P.C. imposing the sentence of imprisonment already undergone by them, and the sentence of Rs. 7,000 each as fine, to be deposited before the Trial Court, within four months, which be paid to the father/mother of deceased. 2 In the event of non payment of fine the appellants shall undergo rigorous imprisonment for five years.
[3A, 3D F]


judgement:
ivil Appeal No. 3674 of 1988.
From the Judgment and Order dated 15.3.1988 of the Allahabad High Court in Civil Misc.
Writ Petition No. 20328 of 1986.
V.C. Mahajan, C.V.S. Rao and A. Subba Rao for the Appel lants.
Deoki Nandan Aggarwal in person and Mrs. section Dixit for the Respondents.
The Judgment of the Court was delivered by V. RAMASWAMI, J.
The respondent was elevated as Judge of the Allahabad High Court on November 17, 1977.
He retired on October 3, 1983 on superannuation at the age of 62.
He had elected to receive his pension under Part I of the First Schedule to the High 878 Court Judges (Conditions of Service) Act, 1954.
As he had put in only a period of five years 10 months and 17 days service as a Judge.
of the High Court, under paragraph 9 Part I of the First Schedule pension payable was determined at the rate of Rs.8,400 per annum and the family pension in the event of his death earlier than his wife at Rs.250 per month in the letter of Accountant General, Allahabad dated December 2, 1983.
The gratuity was worked out at Rs. 11,665.66 P. in lump sum under Section 17A(3) also on the ground that he had put in only five completed years of service.
The pension was payable with effect from October 4, 1983.
The Act was amended by the Amending Act No. 38 of 1986 providing for an increased pension with effect from November 1, 1986.
On December 10, 1986 the petitioner filed a writ petition before the Allahabad High Court under Article 226 of the Constitution praying for an order or directions declaring (i) that he was entitled to refixation of his pension from the date of his retirement, namely, October 4, 1983 to October 31, 1986 at Rs.9,600 per annum plus dearness allowance admissible under the rules from 'time to time on the basis that the period of his service for pension was fit to be enlarged to six years, by addition of 1 month and 13 days to the 5 years 10 months and 17 days; (ii) for refixa tion of pension for the period from November 1, 1986 at Rs.20,580 per annum plus dearness allowance or other allow ances as may be admissible under the rules from time to time, at the rate of Rs.3,430 per annum for six completed years of service as stated above; (iii) to retix the family pension admissible to his wife on the scale allowed under Section 17A as amended by Act 38 of 1986 again taking the period of completed years of service as 6 years and not as total service of 5 years, 10 months, and 17 days.
During the pendency of the writ petition the respondent made representations to the Government of India stating that since the respondent fell short for 6 completed years of service only by one month and 13 days, the President may be pleased to allow him to add the period so as to calculate the pension, gratuity and family pension on the basis of 6 completed years of service as a Judge.
By its order dated April 16, 1987 the Government of India rejected the repre sentation of the respondent among other grounds that the request was belated.
By its judgment dated March 15, 1988 the High Court allowed the writ petition directing the Government to retix his pension, his family pension and gratuity treating him as having put in six completed years of service and in the manner provided in the judgment.
The main grievance of Union of India in this appeal is that the High Court has rewritten the retirement benefit provisions of the First 879 Schedule to tile Act which it was not entitled to and the refixation of the pension on that basis was wholly illegal and unconstitutional.
Since the High Court issued the manda mus directing the Union of India to add one month and 13 days to the total length of service renderred by the re spondent as Judge of the Allahabad High Court for the com puting the pension under Section 16 of the Act, during the pendency of the appeal in this Court in the proceedings dated December 15, 1988 the Government directed, after obtaining the necessary sanction from the President under Section 16 of the Act, the addition of one month and 13 days "subject to the final decision of this Court in Special Leave Petition 6798 of 1988 (CA No. 3674 of 1988).
" However, they added that the period shall be disregarded in calculat ing additional pension, if any, under Part I and Part II and Part HI of the First Schedule of the Said Act.
In order to appreciate the argument of the learned counsel for the appellant Union of India it is necessary to set out certain provisions relating to pension payable to a Judge of the High Court on his retirement.
Clause 17 of the Government of India (High Court Judges) Order, 1937 relating to pension payable to a Judge on his retirement which was in force prior to the coming into force of the Constitution provided that "a pension shall be payable to a Judge on his retirement if, but only if, either: "(a) he has completed not less than 12 years ' service for pension; or (b) he has completed not less than 7 years ' service for pension and has attained the age of sixty; or (c) he has completed not less than 7 years ' service for pension and his retirement is medically certified to be necessitated by ill health.
" Thus it may be seen that under the provisions then existing a Judge who had completed less than seven years of service was not allowed any pension.
As we are concerned in this case to the provisions applicable to a Judge to whom Part I of the First Schedule of the is applicable either by reason of his appointment directly to the High Court from the Bar or who has elected to receive pension payable under that part we need to set out 880 only relevant provisions relating to pension in of the First Schedule.
Paragraphs 2, 3, 4, 5, and 9 as stood prior to its amendment by Act 35 of 1976 read as follows: "2.
Subject to the other provisions of this part, the pension payable to a Judge to whom this Part applies and who has completed not less than seven years of service for pension shall be the basic pension specified in para graph 3 increased by the additional pension, if any, to which he is entitled under para graph 5. 3.
The basic pension to which such a Judge shall be entitled shall be (a) for the first seven completed years of service for pension, Rs.5,000 per annum; and (b) for each subsequent completed year of service for pension, a further sum of Rs. 1,000 per annum: provided that the basic pension shall in no case exceed Rs. 10,000 per annum.
For the purpose of calculating additional pensions, service as a Judge shall be classi fied as follows: Grade I. Service as Chief Justice in any High Court; Grade II.
Service as any other Judge in any High Court.
For each completed year of service for pension in either of the grades mentioned in paragraph 4, the Judge who is eligible for a basic pension under this Part shall be enti tled to the additional pension specified in relation to that grade in the second column of the table annexed hereto.
provided that the aggregate amount of his basic and additional pension shall not exceed the amount specified in the third column of the said table in relation to the higher grade in which he has rendered service for not less than one completed year.
881 TABLE Service Additional pension Maximum aggregate per annum pension per annum Rs. Rs. Grade I 740 20,000 Grade II 740 16,000 9.
Where a Judge to whom this Part applies, retire or has retired at any time after the 26th January, 1950 without being eligible for a pension under any other provision of this Part, then, notwithstanding anything contained in the foregoing provisions, a pension of Rs.6,000 per annum shall be payable to such a Judge.
Provided that nothing in this paragraph shall apply (a) to an additional Judge or acting Judge; or (b) to a Judge who at the time of his appoint ment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Union or a State.
Note: The Proviso was added by Act No. 46 of 1958.
" By the Amending Act 35 of 1976 the First Schedule was amended by substituting paragraphs 2 and 9 and deleting paragraphs 3, 4 and 5.
The substituted paragraphs 2 and 9 read as follows: "2.
Subject to the other provisions of this Part, the pension payable to a Judge to whom this Part applies and who has completed not less than seven years of service for pension shall be (a) for service as Chief Justice in any High Court, Rs.2,400 per annum; and (b) for service as any other Judge in any High Court, Rs. 1,600 per annum: provided that the pension shall in no case exceed Rs.28,000 per annum in the case of a Chief Justice and Rs.22,400 per annum in the case of any other Judge.
882 9.
Where a Judge to whom this Part ap plies, retires or has retired at any time after the 26th January, 1950 without being eligible for pension under any other provision of this part, then, notwithstanding any thing contained in the foregoing provi sions, a pension of Rs.8,400 per annum shall be payable to such a Judge.
Provided that nothing in this paragraph shall apply (a) to an additional Judge or acting Judge; or (b) to a Judge who at the time of his appoint ment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Union or a State." These amended provisions Were held applicable in respect of all the Judges of the High Court who have retired irre spective of their dates of retirement in the decisions of this Court in Union of.
India vs B. Malick, ; and N.L. Abhyankar vs Union of India, ; However the increased pension was payable only with effect from October 1, 1974, Part I of the First Schedule was further amended by Act 38 of 1986 with effect from November 1, 1986 and the amended paragraph 2 reads as follows: "2.
Subject to the other provisions of this Part, the pension payable to a Judge to whom this Part applies, and who has completed not less than seven years of service for pension shall be (a) for service as Chief Justice in any High Court, Rs.4,500 per annum for each completed year of service; (b) for service as any other Judge in any High Court, RS.3,430 per annum for each completed year of service: provided that the pension shall in no case exceed Rs.54,000 per annum in the case of a Chief Justice and Rs.48,000 per annum in the case of any other Judge.
" The Act further amended paragraph 9 by substituting Rs. 15,750 for the figure Rs.6,000 883 At this stage itself, we may note that this Amending Act 38 of 1986 provided that the amended liberalised pension scheme would apply only to a Judge "who has retired on or after the commencement of the High Court and Supreme Court Judges (Conditions of Service) Amendment Act, 1986." A similar provision which made the amendment by Act 35 of 1976 applicable Only to those judges who have retired on or after October 1, 1974 was held ultra vires and struck down in the two decisions of this Court above referred to and it was held that the benefit of the amendment was available to all the retired judges irrespective of the date of retirement but subject to the condition that the enhanced pension was payable only with effect from October 1, 1974.
That was also ratio of the decision of the Constitution Bench of this Court in D.S. Nakara vs Union of India, ; On the same reasoning and logic we have to hold that Amending Act.
38 of 1986 could not restrict the applicability of the amended provision to only those who have retired on or after the commencement of the Amending Act.
The resultant position would be that the provisions of pension in Part I of First Schedule as amended by Act 38 of 1986 would be applicable to all the Judges irrespective of the dates of retirement and they would be entitled to be paid pension at the rates provided therein with effect from NOvember 1, 1986, As already stated, the respondent retired from service on October 3, 1983.
For the period from October 4, 1983 till October 31, 1986 the respondent claimed that he is entitled to be paid at the rate of Rs.9,600 and at the rate of Rs.20,580 per year from November 1, 1986 when the Amending Act 38 of 1986 came into force, plus the usual dearness allowance admissible from time to time.
This claim was made on the ground that the power of the President under Section 16 of the Act though discretionary could not be exercised arbitrarily or on extraneous or other unsupportable grounds that on the facts and circumstances the refusal to include the period of one month and 13 days to the length of his service by the order of 'the Government dated April 16, 1987 was illegal and on the facts and circumstances, his case is a fit one for enlarging the period of his service to six years.
On the assumption that he is entitled for such en largement and the had completed six years of service, the further case of the respondent was that he is entitled for calculation on the pension at the rate of Rs. 1,600 for each completed year of service and for six.years at Rs.9.600 per annum for the period prior to November 1, 1986.
He further contended that in paragraph 2 of Part I of the First Sched ule the words "who has completed not less than seven years of service for pension ' ' shall be read as "who has completed more than five years of service for pension" on 884 the ground that while a Judge who has completed seven years of service is permitted to calculate at the rate of Rs. 1,600 for each completed years of service, a person who had not completed seven years of service could not be denied that benefit.
But finding that a person who had completed only five years of service or less than five years of serv ice, if the pension is to be calculated at the rate of Rs. 1,600, would get Rs.8,000 or less than Rs.8,000 though Rule 9 provided for a fixed pension of Rs.8,400 per annum for those who had not completed seven years of service, he wanted to read "not less than five years" of service in paragraph 2 as "more than five years" of service.
This argument was accepted by the High Court on the ground that there is no rational basis for depriving a Judge who had put in six completed years of service to calculate the benefit of pension at the rate of Rs. 1,600 per year of service which was provided for those who had completed seven years of service.
The High Court was of the view denying the benefit of calculation at the rate of Rs. 1,600 per year would lead to the striking down of the provision as a dis criminatory piece of legislation and that however the provi sion can be saved by "reading down paragraph 2 of Part I of the First Schedule to the Act and reading 'more than five years ' in the place of not less than seven years.
" In that view the High Court amended paragraph 2 so to say by substi tuting the words "not less than 7 years" as "more than 5 years" and allowed the claim for payment of pension at Rs.9,600 per annum for the period from 4.10.1983 to 31.10.1986.
As already stated as per the Amending Act 38 of 1986 the pension payable for those who have completed 7 years of service was to be calculated at the rate of Rs.3,430 for each completed year of service and for those who have not completed 7 years of service a sum of Rs.15,750 was payable as pension.
On the same reasoning which prompted the High Court to read "less than seven years" as "more than five years" in the provision which was in force prior to November 1, 1986 the High Court further held that since in four years service the Judge would have earned Rs. 13,720 and on com pletion of five years service he would have earned Rs.17,150 calculated at the rate of Rs.3430 per annum as against a sum of Rs.15,750 provided in paragraph 9, necessarily paragraph 2 will have to be read down by providing instead of "not less than seven years" as "more than four years".
The learned Judges read the provisions in the manner as was amended by them and calculated the pension payable to the respondent at Rs.20,580 per annum for the period November 1, 1986.
Consequential relief relating to the payment of the gratuity and family pension in the light of the relief granted relating to pension was also directed to be given.
885 We are at a loss to understand the reasoning of the learned Judges in reading down the provisions in paragraph 2 in force prior to November 1, 1986 as "more than five years" and as "more than four years" in the same paragraph for the period subsequent to November 1, 1986.
It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous.
The Court cannot re write, recast or reframe the legislation for the very good reason that it has no power to legislate.
The power to legislate has not been conferred on the courts.
The Court cannot add words to a statute or read words into it which are not there.
Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency.
Courts shall decide what the law is and not what it should be.
The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself.
But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.
Vide P.K. Unni vs Nirmala Industries, at 488; Mangilal vs Suganchand Rathi, ; Sri Ram Ram Narain Medhi vs The State of Bombay, [1959] Supp. 1 SCR 489; Smt.
Hira Devi & Ors.
vs District Board, Shahjahanpur, ; at 113 1; Nalinkhya Bysack vs Shyam Sunder Haldar & Ors., ; at 545; Gujarat Steel Tubes Ltd. vs Gujarat Steel Tubes Mazdaor Sabha, ; ; section Narayanaswa mi vs G. Pannerselvam & Ors., ; at 182; N.S. Vardachari vs G. Vasantha Pai & Anr., ; ; Union of India vs Sankal Chand Himatlal Sheth & Anr., ; and Commissioner of Sales Tax, U.P.v.
Auriaya Chamber of Commerce, Allahabad; , at 438.
Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme, will not also come under the principle of affirmative action adopted by courts some times in order to avoid discrimination.
If we may say so, what the High Court has done in this case is a clear and naked usurpation of legislative power.
The view of the High Court that paragraph 2 discrimi nates between those who have completed seven years of serv ice and those who have not completed that much service is in our opinion not correct.
It is a well known practice in pensionary schemes to fix a minimum period for purposes of pension.
What shall be the minimum period for such pension will depend on the particular service, the age at which a person could enter into such service, the normal period which he is expected to serve before his retirement on superannuation, and vari 886 ous other factors.
There is nothing in evidence to suggest that the period of seven completed years of service fixed for pension is arbitrary.
So far as the Judges of the High Court is concerned as we have noticed earlier even under the Government of India Act a period of seven completed years of service before superannuation was prescribed for eligibility for pension.
In fact no pension was provided for those who had not completed seven years of service under preconstitu tion scheme.
Thus we have history or historical grounds or reasons for fixing not less than seven years of service for pension.
Part I deals with a pensionary scheme.
Prescribing a minimum period of service before retirement on superannua tion, for pension is the very scheme itself and not a clas sification.
It is so to say a qualification for eligibility.
It is different from computation of pension.
All those who satisfy that condition are eligible to get pension.
Even those who had completed seven years of service were not given pension for all the completed years of serv ice at the rate Rs. 1,600 per annum and a maximum limit has been fixed for purposes of pension.
If we calculate the maximum amount provided with reference to the rate per year roughly in about 14 years of service one would have reached the maximum amount.
Any service above that period is not taken into account.
Thus a person who had put in the minimum period for getting the maximum pension could be said to be favourably treated against the person who had put in more number of years of service than needed for the maximum pension and thereby discriminated.
Thus the reasonableness of the provision in the pensionary scheme cannot be consid ered in this line of reasonings.
It is not impossible to visualise a case where the pension payable would be more than the last drawn pay if the maximum limit had not been fixed.
It is also not correct to state that the amount of pension provided in paragraph 9 is minimum pension.
The said paragraph does not use the word 'minimum ' but only state that if a Judge retires without being eligible for pension under any of the provisions, notwithstanding anything con tained in the other provisions, the pension of a particular amount mentioned therein shall be paid to the Judge.
This amount is not calculated or has any reference to any period of service.
For instance a Judge who had put in only two years of service before retirement will also receive the same amount as that of a Judge who have completed six years of service.
Again if we run down the provision and strike as unconstitutional the condition relating to completion of seven years of service in paragraph 2 all those who had put in less than six completed years of service would be seri ously affected and 887 paragraph 9 also would become inapplicable.
Further if we amend paragraph 2 of Part I of the First Schedule of the Act as done by the High Court it may be open to those who have ' put in more than five years or more than four years as the case may be to, contend that they are discriminated against because persons who had put in less than that period will get pension at much higher rate.
We have, therefore, no doubt that the High Court had exceeded its jurisdiction and power in amending and altering the provisions of paragraph 2 by substituting different minimum period for eligibility of pension in paragraph 2 of Part I. Since the respondent has not put in seven completed years of service for pension he will be eligible for pension at the rates provided in paragraph 9 of Part I of the First Schedule to the Act, that is to say for the period from 4.10.1983 to 31.10.1986 at the rate of Rs.8,400 per annum and for the period on and from November 1, 1986 at the rate of Rs. 15,750 per annum.
We have already noticed that during the pendency of the appeal in this Court in the proceedings dated December 15, 1988 the Government of India communicated to the Chief Secretary, Government of Lucknow, in compliance with the mandamus issued by the High Court, that the President of India was pleased to sanction the addition of one month and 13 days to the service of the respondent to make it six years of completed service subject to the final decision in this appeal.
In the circumstances however and in the view we have expressed earlier on the question of pension, we do not want to go into the question whether the High Court was right in setting aside the earlier rejection for addition of the period.
Since the addition of one month and 13 days does not make any difference in calculation of pension as we have already stated, this Presidential sanction has become rele vant only for the purpose of calculating the gratuity under section 17A(3) of the Act.
As the period is less than three months and as the President was pleased to sanction the addition in exercise of his power under Section 16 of the Act though subject to the final decision of this Court we would consider it just and necessary to allow this addition remain in force for the purposes of calculation of gratuity, and family pension only though not for pension.
The appeal is accordingly allowed and the order of the High Court is set aside.
The respondent will however be entitled to fixation of family pension and for payment of gratuity calculated on the basis of his having completed six years of service.
There will be no orders as to costs.
G.N. Appeal al lowed.

summary:
The Respondent retired as Judge of the High1 Court on 3.10.1983 on superannuation and elected to receive his pension under of the First SChedule to the .
As a Judge of the High Court, he had put in service of 5 years 10 months and 17 days and his pension was determined at Rs.8,400 p.a. and family pension at Rs.250 p.m.
In 1986, the Act was amended providing for an increased pension from 1.11.1986.
Thereafter, the Respondent filed a Writ Petition before the High Court praying for directions that he was entitled to refixation of his pension from the date of his retirement at Rs.9,600 per annum on the basis that the period of his service for pension was fit to be enlarged to six years, by addition of 1 month and 13 days; that from November 1, 1986 his pension may be refixed at Rs.20,580 per annum at the rate of Rs.3,430 for six complet ed years of service; and that the family pension admissible to his wife be calculated on the basis that he had completed six years of service.
During the pendency of the Writ Petition the Respondent made representations to the Government of India that since the respondent fell short of 6 completed years of service only by 1 month and 13 days, the President may be pleased to allow him to add the period so as to 874 caluclate the pension, gratuity and family pension on the basis of 6 completed years of service as a Judge.
By its order dated April 16, 1987 the Government of India rejected the representation of the respondent among other grounds that the request was belated.
By its judgment dated March 15, 1988 the High Court allowed the Writ Petition directing the Government to retix his pension, family pension and gratuity treating him as having put in six completed years of service.
The Union of India has preferred the present appeal, by special leave against the High Court 's order.
It was contended on behalf of the appellants that the High Court has re written the retirement benefit provisions of the First Schedule to the Act which it was not entitled to and hence the refxation of the pension on that basis was wholly illegal and unconstitutional However, during the pendency of the appeal this Court in its proceedings dated December 15, 1988 the Government directed, after obtaining the necessary sanction from the President under Section 16 of the Act, the addition of 1 month and 13 days subject to the final decision of this Court in the appeal.
However, it was added that the period shall be disregarded in calculating additional pension.
if any, under , and of the First Sched ule of the said Act.
Allowing the appeal, this Court.
HELD: 1.
It is a well known practice in pensionary schemes to fix a minimum period for purposes of pension.
What shall be the minimum period for such pension will depend on the particular service, the age at which a person could enter into such service.
the normal period which he is expected to serve before his retirement on superannuation, and various other factors.
There is nothing in evidence to suggest that the period of seven completed years of service fixed for pension is arbitrary.
So far as the Judges of the High Court are concerned even under the Government of India Act a period of seven completed years of service before superannuation was prescribed for eligibility for pension.
In fact no pension was provided for those who had not com pleted seven years of service under pre constitutional scheme.
Thus there are historical grounds or reasons for fixing not less than seven years of service for pension.
Part I deals with pensionary scheme.
Prescribing a minimum period of service before retirement on superannuation, for pension is the very scheme itself and not a classification.
It is a qualification for eligibility.
It is different from computation of pension.
All those who 875 satisfy that condition are eligible to get pension.
[885G H; 886A C] 2.
Even those who had completed seven years of service were not given pension for all the completed years of serv ice at the rate of Rs.1,600 per annum and a maximum limit has been fixed for purposes of pension.
If one calculates the maximum amount provided with reference to the rate per year roughly in about 14 years of service one would have reached the maximum amount.
Any service above that period is not taken into account.
Thus a person who had put in the minimum period for getting the maximum pension could be said to be favourably treated against the person who had put in more number of years of service than needed for the maximum pension and thereby discriminated.
[886D E] 3.
It is not correct to state that the amount of pension provided in paragraph 9 is minimum pension.
The said para graph does not use the word 'minimum ' but only states that if a Judge retires without being eligible for pension under any of the provisions.
notwithstanding anything contained in the other provisions.
the pension of a particular amount mentioned therein shall be paid to the Judge.
This amount is not calculated or has any reference to any period of serv ice.
A Judge who had put in only two years of service before retirement will also receive the same amount as that of a Judge who has completed six years of service.
If the provision is struck down as unconstitutional the condition relating to completion of seven years of service in para graph 2, all those who had put in less than six completed years of service would be seriously affected and paragraph 9 also would become inapplicable.
Further, it may be open to those who have put in more than five years or more than four years as the case may be.
to contend that they are discrimi nated against because persons who had put in less than that period will get pension at much higher rate.
[886F H: 887A] 4.
The Amending Act 38 of 1980 provided that the amend ed liberalised pension scheme would apply only to a Judge who has retired on or after the commencement of the High Court and Supreme Court Judges (Conditions of Service) Amendment Act.
A similar provision which made the amendment 01 1976 applicable only to those Judges who have retired on or after October 1.
1974 was struck down as ultra vires and it was decided that the benefit of the amendment was available to.
all the retired Judges irrespective of the date of retirement but subject to the condition that the enhanced pension was payable only with effect from October 1, 1974.
The Amending Act of 1986 could not restrict the applicability of the amended provision to only those who have retired on or after the commencement of the Amending Act.
It 876 would be applicable to all the Judges irrespective of the dates of retirement and they would be entitled to be paid pension at the rates provided therein with effect from November 1, 1986.
[883A D] Union of India vs B. Malick. ; ; N.L. Abhyankar vs Union of India, ; and D.S., Nakara vs Union of India, ; , referred to.
In the instant case.
High Court had exceeded its jurisdiction and power in amending and altering the provi sions of paragraph 2 by substituting different minimum period for eligibility for pension in paragraph 2 of Part I. Since the respondent has not put in seven completed years of service for pension he will be eligible for pension at the rates provided in paragraph 9 of Part I of the First Sched ule to the Act, that is to say for the period from 4.10.1983 to 31.10.1986 at the rate of Rs.8,400 per annum and for the period on and from November 1, 1986 at the rate of Rs. 15,750 per annum.
[887B C] 6.
Since in compliance with the mandamus issued by the High Court, the President of India was pleased to sanction the addition of one month and 13 days to the service of the respondent to make it six years of completed service subject to the final decision in this appeal, this Court does not go into the question whether the High Court was right in set ting aside the earlier rejection for addition of the period.
The addition of one month and 13 days does not make any difference in calculation of pension it is relevant only for the purpose of calculating the gratuity under section 17A(3) of the Act.
As the period was less than three months and as the President was pleased to sanction the addition in exer cise of his power under Section 16 of the Act though subject to the final decision of this Court it is just and necessary to allow this addition to remain for the purposes of calcu lation of gratuity, and family pension only though not for pension.
The respondent will be entitled to fixation of family pension and for payment of gratuity calculated on the basis of his having completed six years of service.
[887D H] 7.1.
It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legis lature when the language of the provision is plain and unambiguous.
The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate.
The power to legislate has not been conferred on the courts.
The Court cannot add words to a statute or read words into it which are not there.
Assuming there is a defect or an omission in the 877 words used by the legislature the Court could not go to its aid to correct or make up the deficiency.
Courts shall decide what the law iS. and not what it should be.
The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself.
But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.
[885A D] 7.2 Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme, will not also come under the principle of affirmative action adopted by courts some times in order to avoid discrimina tion.
What the High Court has done in this case is a clear and naked usurpation of legislative power.
[885F] P.K. Unni vs Nirmala Industries, ; Mangilal vs Suganchand Rathi, ; Sri Ram Ram Narain Medhi vs The State of Bombay, [1959] Supp. 1 SCR 489; Smt.
Hira Devi & Ors.
vs District Board, Shahjahanpur, ; ; Nalinakhya Bysack vs Shyam Sunder Haldar & Ors., ; ; Gujarat Steel Tubes Ltd. vs Gujarat Steel Tubes Mazdoor Sabha, ; ; section Narayanaswa mi v.
G. Pannerselvam & Ors., ; ; N.S. Varda chari vs G. Vasantha Pai & Anr., ; ; Union of India vs Sankal Chand Himatlal Sheth & Anr., ; and Commissioner of Sales Tax, U.P.v.
Auriaya Chamber of Commerce, Allahabad; , , relied on.


judgement:
ivil Appeal No. 3574 of 1991.
From the Judgment and Order dated 5.9.1990 of the Punjab and Haryana High Court in L.P.A. No. 127 of 1983.
S.K. Mehta, Dhruv Mehta and Aman Vachher for the Appel lant.
O.P. Sharma, K.R. Gupta, Vivek Sharma, R.C. Gubrele and Ms. Nanita Sharma for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
Leave granted.
Counsel heard.
The appellant, Bhatinda Improvement Trust, framed a development scheme under the Punjab Town Improvement Act, 1922 (referred to hereinafter as "the said Act").
Notices under Section 36 of the said Act in respect of the said scheme, setting out the particulars referred to in the said Section, were published in the Daily Tribune on May 31, 1977, June 7, 1977, and June 14, 1977.
The said notices were also published in the local daily Ajit on May 30, 1977, June 6, 1977, and June 13, 1977 and in Punjab Government Gazette on June 17, 1977, June 24, 1977 and July 1977, respectively.
A Notification as required under Section 42 of the said Act was published on June 30, 1980 sanctioning the said develop ment scheme.
The said Notices and 931 Notifications were challenged by the respondents in Civil Writ No. 2508 of 1982 filed in the High Court of Punjab and Haryana, inter alia, on the ground that the Notification under Section 42 was not issued within the stipulated period of three years from the first publication of the Notice under Section 36 and on that account it was bad in law.
This contention found favour with the learned Single Judge of Punjab and Haryana High Court who allowed the writ petition and set aside the Notification under Section 42 which was issued on June 30, 1980.
A Letters Patent Appeal preferred against the said Judgment was dismissed by a Division Bench of the said High Court and the present petition is directed against the aforesaid judgment of the Division Bench, dis missing the said Letters Patent Appeal.
It was submitted by Mr. Mehta, learned Counsel for the appellant that the time limit of three years for the issue of the Notification under Section 42 of the said Act was not prescribed under the said Act and that the first proviso to Section 6 of the Land Acquisition Act.
1894, was not ap plicable to the scheme in question.
It was submitted by him that the provisions of Section 6 of the Land Acquisition Act were, in effect, incorporated into the said Act which was enacted in 1922 from the very time of its enactment and hence, any amendment to the said section after that date would not be applicable to acquisitions under the said Act.
It was pointed out by him that the aforesaid time limit of three years was inserted in the Land Acquisition Act in 1984, long after the said Act was enacted as set out partic ularly, hereinafter and hence, it could not have any appli cation to the acquisitions made for the purposes of the said Act.
In order to examine the correctness of the submissions of Mr. Mehta, it is necessary to take note of the relevant provisions of the said Act and the Land Acquisition Act.
Section 28 of the said Act sets out the matters which may be provided for in a scheme.
Under sub section (2) clause (i) of the said section it is inter alia provided that a scheme under said Act may provide for the acquisition under the Land Acquisition Act as modified by the said Act.
Section 36 of the said Act provides that when a scheme under the said Act has been framed, the trust shall prepare a notice set ting out the particulars contained in the said section.
The relevant part of sub section (2) of the said Section runs as follows: (2) The trust shall: "(a) notwithstanding anything contained in Section 78 932 cause the said notice to be published weekly for three consecutive weeks in the official Gazette and in a newspaper or newspapers with a statement of the period within which objec tions will be received. ".
Sub section (1) of Section 42 provides that the State Government shall notify the sanction of every scheme under the said Act and the trust shall forthwith proceed to exe cute the scheme and so on.
Subsection (2) of the said Sec tion provides that a Notification under subsection (1) thereof shall be conclusive evidence that the scheme has been framed and sanctioned.
Section 58 provides for the constitution of a tribunal for the purposes of performing the functions of a court in a reference to acquisition of land for improvement trust under the Land Acquisition Act.
Section 59 provides for modification of the Land Acquisition Act, as set out therein for the purposes of acquiring the land under the Land Acquisition Act for the said trust.
We are not concerned with the actual modifications referred to in Section 59.
We need only note that under sub section (b) of Section 59 it is provided that the Land Acquisition Act may be subject to further modifications as indicated in the Schedule to the said Act.
Sub clause (1) of Clause 2 of the Schedule to the said Act, referred to in Section 59, runs as follows: "(2) Notification under section 4 and declara tion under section 6 to be replaced by notifi cation under sections 36 and 42 of this Act (1) The first publication of a notice of any improvement scheme under section 36 of this Act shall be substituted for and have the same effect as publication in the Official Gazette and in the locality of a notification under subsection (1) of section 4 of the said Act, except where a declaration under section 4 or section 6 of the said Act has previously been made and is still in force.
" Sub section (1) of Section 4 of the Land Acquisition Act, inter alia, provides that whenever it appears to the appro priate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette as prescribed in the said section.
Section 5 A deals with hearing of objections.
Sub section (1) of Section 6, inter alia provides that when the appropriate Government is satis fied after considering the 933 report, if any, made under Section 5 A, sub section (2), that any particular land is needed for a public purpose, a declaration to that effect shall be made as prescribed in the said section.
The relevant part of the first proviso to the said sub section as substituted by Act 68 of 1984 runs as follows: "Provided that no declaration in respect of any particular land covered by a notification under Section 4, sub section (1) (i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1of 1967), but before the commencement of the Land Acquisition (Amend ment) Act, 1984, shall be made after the expiry of three years from the date of the publication of the notification; or".
It was by this substituted proviso that the said time limit of three years was prescribed.
Sub section (2) of Section 6 provides for the publication of the declaration under Section 6 and prescribes the manner in which the same shall be done.
It is the submission of learned Counsel for the appel lant that by the aforesaid provisions, and in particular, Sections 28, 58 and 59 of the said Act certain provisions of the Land Acquisition Act, and particularly, Section 6 there of were, in effect, incorporated into the said Act by refer ence and hence, it is only such provisions of the Land Acquisition Act as were in existence at the time when the said Act was enacted in 1922 which could be said to be incorporated into the said Act.
In support of his submission he placed strong reliance on the decision of a Bench com prising three learned Judges Bench of this Court in the case of Mahindra and Mahindra Ltd. vs Union of India and Another., ; In that case it has been point ed out that Section 55 of the (referred to hereinafter as the "MRTP Act") provides that any person aggrieved by the order made by the Central Government or the Commission (The Monop olies and Restrictive Trade Practices Commission) under Section 13 or Section 37 of the MRTP Act may prefer an appeal to the Supreme Court on one or more of the grounds specified in Section 100 of the Code of Civil Procedure.
It was pointed out in the judgment that on the date on which the MRTP Act came into force, Section 100 of the Code of Civil Procedure specified 3 grounds on which a second appeal could lie to the High Court, one of them being that the decision appealed against, was contrary to law.
By 934 an amendment made in 1976, Section 100 of the Code was subsituted by a new section which provides that a second appeal shall lie to the High Court only if the High Court is satisfied that the case involves a substantial question of law.
The appellant took the stand that under the provisions of Section 100 of the Civil Procedure Code, as it stood when the MRTP Act was enacted, the appeal was clearly maintain able as the impugned order was contrary to law.
The respond ents contended that, although this might be so, no substan tial question of law was involved in the second appeal and hence, the appeal was not maintainable.
It was submitted by the respondents that the maintainability of the appeal would have to be determined on the basis of Section 100 of the Code as amended.
This Court took the view that the appeal was maintainable.
It was held that on a proper interpreta tion of Section 55 it must be held that the grounds speci fied in Section 100 of the Code as it stood when the MRTP Act was enacted in 1969, were incorporated in Section 55 of the MRTP Act and the substitution of the new Section 100 did not affect or restrict the grounds as incorporated in Sec tion 55.
In the said judgment this Court cited with approval the judgment of the Privy Council in Secretary of State for India in Council vs Hindustan Co operative Insurance Society Ltd., [1958] I.A. 259 at 267.
where the Judicial Committee observed: "In this country it is accepted that where a statute is incorporated by reference into a second statute, the repeal of the first stat ute does not affect the second; (see the case collected in Craies on Statute Law, 3rd edn.
pp. 349,350)".
We find ourselves unable to accept the submissions of learned Counsel for the appellant.
As pointed out by the Supreme Court and the Judicial Committee in the aforesaid decisions, it is well settled law that where a statute is incorporated by a reference into a second statute, the repeal of the first statute does not affect the second.
Similarly, in a case where a statute is incorporated by a reference into another statute an amendment of the statute so incorporated after the date of incorporation does not affect the second statute and the provisions of the latter statute remain the same as they were at the time of incorpo ration.
It is again well settled that where one statute is referred to in another, it may be merely by way of reference or by way of incorporation of the same.
This depends on the language used in the latter statute and other relevant circumstances.
In the present case, however, we find that there is no question of incorporation of any of the provi sions of the Land Acquisition Act into the said Act at all.
The said Act does not deal with acquisition of land for the purposes of a 935 scheme as contemplated under the said Act.
The acquisition of such land for the purposes of the scheme is left to the general law of the land in that connection, namely, the Land Acquisition Act, which has to be resorted to for the pur poses of acquisition of land for the purposes of the schemes contemplated under the said Act.
The only difference is that some of the provisions of the Land Acquisition Act, as referred to in the relevant sections of the said Act are given effect to as amended by the relevant sections of the said Act.
In these circumstances, it cannot be held that any provisions of the Land Acquisition Act have been incorporat ed into the said Act and the provisions of the Land Acquisi tion Act which have to be applied, are the provisions as they stand at the relevant time, namely, at the time of acquisition, in the absence of a contrary intention.
There is nothing to indicate that there was any such contrary intention in the present case.
In these circumstances, the notification under Section 42 should have been published within the period of three.
years of the date of publication of the notification under Section 4(1) of the Land Acquisi tion Act, as required under the first proviso to Section '6 of the Land Acquisition Act.
Under sub clause (1) of clause (2) of the Schedule to the said Act, which we have referred to earlier, the first publication of a notice of any im provement scheme under Section 36 of the said Act, is sub stituted for and has the same effect as the publication in the Government Gazette of a notification under sub section (1) of Section 4 of the Land Acquisition Act.
The notice under section 36 of the said Act is required to be pub lished, inter alia, in a newspaper or newspapers as set out in section 36(2)(a) of the said Act.
In the present case, such a notice was first published in the daily 'Ajit ' on May 30, 1977, and hence, the notification under Section 42 of the said Act should have been published on or before May 30, 1980.
In fact, the notification under Section 42 of the said Act, admittedly, was published on June 30, 1980, and hence, was clearly beyond time.
In these circumstances, the notice under Section 36 of the said Act lapsed on the expiry of three years from May 3G, 1977, and no action pursuant to the said notice could be taken thereafter.
The notification under Section 42 of the said Act was clearly beyond time and bad in law, as it was not published within the period pro vided.
The acquisition proceedings lapsed.
The submission of learned Counsel for the appellant must be rejected.
No other point was canvassed before us.
In the result, the appeal fails and is dismissed with costs.
V.P.R. Appeal dis missed.

summary:
The appellant the Improvement Trust framed a develop ment scheme under the Punjab Town Improvement Act, 1922 and notices under Section 36 of the Act were published in the Daily Tribune on May 31, 1977, June 7, 1977 and June 14, 1977 and in the local Daily Ajit on May 30, 1977, June 6, 1977 and June 13, 1977 and in the Punjab Government Gazette on June 17, 1977, June 24, 1977 and July 1977, respectively.
A notification as required under Section 42 of the Act was published on June 30, 1980 sanctioning the development scheme.
The notification was challenged by the Respondents in a writ petition in the High Court on the ground that the notification was not issued within the stipulated period of three years from the first publications of the notice.
The Single Judge of the High Court allowed the writ application and the Division Bench of the High Court dis missed the Letters Patent Appeal, against which the present petition has been filed by the Improvement Trust, contending that the time limit of three years for the issue of the notification under section 42 of the Act was not prescribed under the Act; that the first proviso to section 6 of the Land Acquisition Act, 1894, was not applicable to the scheme in question, and; that the provisions of Section 6 of the Land Acquisition Act were 929 incorporated in the Act from the very time of its enactment and hence, any amendment to the said section after that date would not be applicable to acquisitions under Act.
Dismissing the appeal, this Court, HELD: 1.
In a case where a statute is incorporated by a reference into another statute, an amendment of the statute so incorporated after the date of incorporation does not affect the second statute and the provisions of the latter statute remain the same as they were at the time of incorpo ration.
[934F G] 2.
Where one statute is referred to in another, it may be merely by way of reference or by way of incorporation of the same.
This depends on the language used in the latter statute and other relevant circumstances.
[934G] 3.
In the present case, there is no question of incorpo ration of any of the provisions of the Land Acquisition Act into the Punjab Improvement Act 1922 at all as the latter Act does not deal with acquisition of land for the purposes of a scheme as contemplated under the Act.
The acquisition of such land for the purposes of the scheme is left to the general law of the land in that connection, namely, the Land Acquisition Act, which has to be resorted to for the pur poses of acquisition of land for the purposes of a scheme as contemplated under the Punjab Town Improvement Act.
The only difference is that some of the provisions of the Land Acqui sition Act, as referred to in the relevant sections of the Act, are given effect to as amended by the relevant sections of the Act.
In these circumstances, it cannot be held that any provisions of the Land Acquisition Act have been incor porated into the Act and the provisions of the Land Acquisi tion Act which have to be applied, are the provisions as they stood at the relevant time, namely, at the time of acquisition, in the absence of a contrary intention.
[934G C] 4.
The notification under Section 42 should have been published within the period of three years of the date of publication of the notification under Section 4(1) of the Land Acquisition Act, as required under the first proviso to Section 6 of the Land Acquisition Act.
Under sub clause (1) of Clause (2) of the Schedule to the said Act, the first publication of a notice of any improvement scheme under section 36 of the said Act, is 930 substituted for and has the same effect as the publication in the Government Gazette of a notification under sub sec tion (1) of Section 4 of the Land Acquisition Act.
The notice under section 36 of the said Act is required to he published, inter alia, in a newspaper or newspapers as set out in section 36(2)(a) of the said Act.
In the present case, such a notice was first published in the daily 'Ajit ' on May 30, 1977, and hence, the notification under Section 42 of the said Act should have been published on or before May 30, 1980.
In fact, the notification under Section 42 of the said Act, admittedly, was published on June 30, 1980 and hence, was clearly beyond time.
[935C F] Mahindra and Mahindra Ltd. vs Union of India and Anoth er; , and Secretary of State for India in Council vs Hindustan Cooperative Insurance Society Ltd., [1958] IA 259 at 267, referred to.