judgement:
: Criminal Appeal No. 76 of 1974.
Appeal by Special Leave from the Judgment dated 9 11 1973 of the Delhi High Court in, Criminal Appeal No. 174 of 1972.
R. L. Kohli (Amicus Curiae) and R. C. Kohli for the Appellant.
Hardayal Hardy, Miss A. Subhashini and R. N. Poddar for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
This appeal by special leave is filed against the judgment of the High Court of Delhi in Criminal Appeal No. 174 1972 convicting the appellant, Dara Singh, of an offence punishable under section 23F of the Foreign Exchange Regulation Act, 1947 (Act No. 7 of 1947) (hereinafter referred to as 'the Act ') and sentencing him to imprisonment for a term of one year with a direction that the said sentence should be served by him concurrently with the sentence of imprisonment for life imposed on him in another case on a charge of murder.
989 The facts leading to this appeal can be summarised thus: On March 28, 1963 foreign currencies amounting to $ 185 and U.S. $ 13060 besides Indian currency amounting to Rs. 1,300 were seized from the appellant by the Railway Police at the Railway Station at Sangrur.
Thereupon proceedings were initiated against the appellant for contravention of sections 4 and 9 of the Act under section 23 (1) (a) read with section 23D of the Act before the Director of Enforcement of Foreign Exchange Regulation appointed by the Central Government for the purpose of enforcing the provisions of the Act.
By an ex parte order dated May 12, 1967, the Director of Enforcement held the appellant guilty of contravention of provisions of section 9 of the Act read with the Central Government Notification No. F. 1(67 EC/57, dated 25 9 1958 as amended upto 6 3 1961) and section 4(1) of the Act and imposed on him a penalty of Rs. 6,000 which the appellant was directed to pay to the Directorate of Enforcement within forty five days of the issue of the order.
As the penalty was not paid within forty five days from the date of the issue of the order of the Director of Enforcement, a complaint was lodged on November 13, 1969 by the Deputy Director of Enforcement before the Judicial Magistrate, First Class, New Delhi under section 23F of the Act.
In the complaint it was specifically stated that a copy of the order of the Director of Enforcement imposing the penalty on the appellant had been served on him on May 4, 1968 and that as the appellant had not deposited the penalty with the 1 Directorate of Enforcement within forty five days from the date of the order, the appellant was liable to be punished under section 23F of the Act.
The appellant denied that he had been served with the copy of the order of the Director of Enforcement imposing penalty on him and further stated that he did not Know that he had to pay the penalty in question.
The learned Magistrate acquitted the appellant by his order dated July 29, 1972 holding that it had not been established that the order passed by the Director of Enforcement had been served on the appellant on May 4, 1968 as alleged in the complaint and that, therefore, there were no grounds to hold the appellant guilty of contravention of section 23F of the Act which read thus: "23F. If any person fails to pay the penalty imposed by the Director of Enforcement or the Appellate Board or the High Court, or fails to comply with any of their directions or orders, he shall, on conviction before a Court, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.
" The Magistrate while acquitting the appellant rejected the plea of the complainant that the appellant was liable to be punished under 990 section 23F since he had in any event come to know of the order of the Director of Enforcement on the date on which he appeared in the Court i.e., on August 7, 1970 and the charge had been framed by the Magistrate on March 4, 1972 after the expiry of a period of forty five days from the date on which the appellant had appeared in the Court by observing that "he could not be convicted in the case on that count because these allegations are not contained even in the charge much less in the complaint".
Aggrieved by the decision of acquittal of the Magistrate, the Director of Enforcement filed an appeal before the High Court of Delhi with the special leave of that court granted under section 417(3) of the Code of Criminal Procedure.
As the appellant who was undergoing imprisonment for life imposed on him in another case at the Central Jail Ferozepur did not make any arrangement for his defence before the High Court, an advocate was appointed as amicus curiae to assist the court in the appeal.
After hearing learned counsel who appeared in the case, the High Court by its judgment dated November 9, 1973 reversed the order of acquittal passed by the Magistrate, found the appellant guilty of The offence punishable under section 23F of the Act and sentenced him to imprisonment for a term of one year.
While doing so, the High Court agreed with the finding of the Magistrate that the order of the Director of Enforcement imposing penalty on the appellant had not been served on the appellant on May 4, 1968 as alleged in the complaint but it was of the view that since the appellant had come to know about the order on August 7, 1970 when he appeared before the Magistrate and he had not paid the penalty within a reasonable time thereafter, he was liable to be punished under section 23F of the Act.
The relevant part of the judgment of the High Court reads thus: "The order of acquittal made by the learned trial Magistrate proceeds, in our opinion, on an altogether erroneous view of the provisions of section 23F of the Act.
For proving the guilt of Dara Singh in the light of the charge framed against him, it had only to be established that he had failed to pay the penalty imposed by the Director of Enforcement.
As was ordered by the Director of Enforcement the penalty had to be paid within 45 days from the date of issue of the adjudication order.
Obviously, however, no payment could be made unless the person on whom the penalty was imposed had come to know about the order.
At the latest Dara Singh came to know about the adjudication order on ' August 7, 1970, if not earlier.
He should have, therefore, paid the penalty within a reasonable period from that date and in any case within 45 days from 991 the said date.
The penalty not having been paid or deposited by Dara Singh, he was clearly guilty of contravention of the adjudication order made by the Director of Enforcement and should have been, convicted under section 23F of the Act".
The question which arises for consideration in this appeal is whether the High Court was right in the circumstances of the case in finding the appellant guilty of the offence in question.
It is necessary at this stage to refer briefly to some of the provisions of the Act and the Adjudication Proceedings and Appeal Rules, 1957 (hereinafter referred to as 'the Rules ') framed under section 27 of the Act.
Under Clause (a) of sub section (1) of section "3 of the Act, the Director of Enforcement is empowered to levy penalty not exceeding three times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by him in the manner provided in the Act in any person is found to contravene the provisions of section 4, section 9 or any of the other provisions referred to in section 23(1).
Section 23D of the Act requires the Director of Enforcement to hold an inquiry in the prescribed manner against any person who is liable to be proceeded against under clause (a) of section 23 (1) after giving him a reasonable opportunity of being heard and if on such inquiry, the Director of Enforcement is satisfied that the person has committed the contravention, he may impose such penalty as he thinks fit in accordance with the provisions of section 23 of the Act.
An appeal lies to the Appellate Board under section 23E of the Act against the order of the Director of Enforcement imposing penalty.
Rules 3, 4 and 5 of the Rules set out the procedure to be followed by the Director of Enforcement in holding the enquiry under section 23D of the Act.
Rule 3 of the Rules among others provides for the issue of a notice to the person against whom proceedings are initiated for contravention of the provisions referred to in section 23(1) of the Act and for giving an opportunity to him to defend himself in the proceedings before the Director of Enforcement.
Sub rule (7) of Rule 3 of the Rules provides that if, upon consideration of the evidence produced before the Director, the Director is satisfied that the person has committed the contravention, he may, by order in writing impose such penalty as he thinks fit in accordance with the provisions of clause (a) of sub section (1) of section 23.
There is no rule requiring the person against whom an order is made to appear before the Director of Enforcement on any specified date on which the order would be pronounced in his presence.
Rule 4 of the Rules requires the Director of Enforcement to specify in his order the provisions of the Act or of the Rules, 992 directions or orders made thereunder in respect of which contravention has taken place and to give brief reasons for his decision.
Rule 5 of the Rules requires that a copy of the order made under sub rule (7) of Rule 3 shall be supplied free of charge to the person against whom the order is made and that every copy of such order shall state that the copy is supplied free of charge for the use of the person to whom it is issued and that an appeal lies against that order to the Appellate Board under section 23E within thirty days of the date of the order.
Rule of the Rules states that every appeal presented to the Appellate Board under section 23E of the Act shall be in the form of a memorandum signed by the appellant and the memorandum shall be accompanied by a copy of the order appealed against.
Having regard to the aforesaid provisions of the Act and the Rules, it has to be held that the service of a copy of the order made under sub rule (7) of Rule 3 of the Rules on the person against whom the said order is made is not an empty formality.
In the absence of a provision of law requiring the Director of Enforcement to pronounce his order in the presence of the person against whom it is made, the only date on which it can be deemed to have been effectively made is the date on which he gets the knowledge of the order either by the supply of a copy of the order or by any other means because first, the statute provides a remedy to the person against whom the order is made by way of an appeal to be preferred within the prescribed period from the date of the order to the Appellate Board under section 23E of the Act and secondly noncompliance with the order would expose him to the punishment that may be imposed on him under section 23F of the Act.
It would be wholly unjust to compute the period of limitation to file an appeal from a date earlier than the date on which the party who is entitled to prefer an appeal has the knowledge of the order.
In cases where an order which is appealable is not pronounced in the presence of the person against whom it is made, it should be assumed that unless there is any specific provision of law to the contrary the date of his knowledge of the order is the date of the order for the purpose of computing the period of limitation irrespective of the date on which it is actually passed.
(Vide Raja Harish Chandra Raj Singh vs The Deputy Land Acquisition Officer & Anr.
It is equally so even in the case of an order non compliance of which would lead to prosecution and consequent imposition of penalty.
When the law lays down that non compliance with an order would expose the person against whom it is made to 993 criminal liability, it is reasonable to hold that in the absence of proof of his knowledge of the order no penal action can be taken against him for non compliance with it.
The information or knowledge which he may gather about such order in the course of the criminal proceedings instituted for non compliance with it cannot be a substitute for the knowledge of the order as mentioned above, which should ordinarily precede the institution of such proceedings.
Under section 23F of the Act if any person fails to pay the penalty imposed by the Director of Enforcement, he on conviction is liable to be punished with imprisonment which may extend to two years or with fine or with both.
No person can be convicted under section 23F for failure to pay the penalty imposed on him by the (Director of Enforcement when he is not at all informed earlier about the imposition of the penalty.
Hence in the absence of proof of his knowledge of the order either by the supply of the copy of the order under Rule 5 of the Rules or in any other manner, it cannot be said that such person has failed to pay the penalty imposed on him under the Act and has become liable to be proceeded against under section 23F. As mentioned earlier, the specific case set out in the complaint was that a copy of the order of the Director of Enforcement had been served on the appellant on May 4, 1968 and that both the Magistrate and the High Court refused to accept it.
The finding of the High e Court is that the appellant must have come to know of the order on! August 7, 1970 when he appeared before the Magistrate.
It is; therefore, obvious that on the date on which The complaint was filed before the Magistrate i.e. On November 13, 1969 or on the date on which process was issued by the Magistrate on taking cognisance of the case to The appellant to appear before him pursuant to which he appeared before him on August 7, 1970, the appellant had not even the knowledge of the passing of the order imposing penalty on him let alone the specific provision of the Act or the Rules which according to the order he had violated and the reasons in support of the order.
The appellant had not, therefore, committed any offence punishable under section 23F of the Act on those dates.
The Magistrate could not, therefore, take cognisance of any offence punishable under section 23F of the Act on the date on which he issued process to the appellant to appear before him.
Even the charge framed against the appellant did not state that the order imposing penalty on him had been communicated to him on August 7, 1970 and the he was being tried for an offence punishable under section 23F for non compliance with the order so communicated on August 7, 1970.
994 The charge only contained the gist of what was stated in the complaint on November 13, 1969.
The High Court was, therefore, in error in the circumstances of the case in setting aside the order of acquittal passed by the Magistrate and in finding the appellant guilty of the offence complained of.
In the result, the appeal is allowed and the conviction of the appellant and the sentence imposed on him by the High Court are set aside.
The order of acquittal passed by the Magistrate is restored.
At the time of grating special leave to appeal in this case, as it was stated that the appellant had been acquitted of the charge of murder, the sentence of imprisonment for life had been cancelled and that he had been undergoing imprisonment awarded by the High Court under section 23F of the Act, this Court granted bail to the appellant to the satisfaction of the trial court and directed that he should be released on bail unless he was required to be in prison in connection with or on account of any other case.
It is not known whether the appellant was in fact released on bail pursuant to the above order.
If he is on bail, his bail bond stands cancelled.
P.B.R. Appeal allowed.

summary/full:
An exparte order holding the appellant guilty of certain offences under the Foreign Exchange Regulation Act and imposing penalty for such contravention was passed by the Director of Enforcement.
On completion of 45 days of the issue of the order within which period the penalty was required to be paid, a complaint was lodged with the Judicial Magistrate, 1st class alleging that even though a copy of the impugned order had been served on the appellant, he failed to deposit the penalty and, that, therefore, he was liable to be punished under section 23F of the Act.
Accepting the appellant 's plea that no copy of the impugned order having been served on him there was no ground to hold him guilty of contravention of section 23F the Magistrate acquitted him.
The Magistrate, at the same time, rejected the complainant 's contention that even assuming that the impugned order had not been received by the appellant he had come to know of it on the date he appeared before the Magistrate and when the charge had been framed against him and his failure to pay the penalty despite this knowledge was enough to attract the provisions of section 23F.
He held that these allegations were stated neither in the complaint nor in the charge and, therefore, the appellant could not be convicted.
Although the High Court, on appeal, upheld the finding of the Magistrate that the impugned order had not been served on the appellant it was of the view that since the appellant had come to know about the order then he appeared before the Magistrate but still had not paid the penalty within a reasonable time thereafter, he was liable to be punished under section 23F of the Act.
Allowing the appeal.
^ HELD: The appellant had not committed any offence punishable under section 23F of the Act.
[993G] When the law lays down that non compliance with an order would expose The person against whom it is made to criminal liability, It is reasonable to hold that in the absence of proof of knowledge of the order no penal action H can be taken against him for non compliance with that order.
The information or knowledge which he may gather about such order in the course of criminal 988 proceedings instituted for non compliance with it cannot be a substitute for the knowledge of the order, which should ordinarily precede the institution of such proceedings.
The High Court was, therefore, in error in the circumstances of the case in setting aside the order of acquittal passed by the Magistrate and in finding the appellant guilty of the offence complained of.
[992H] The rules framed under the Act set out the procedure to be followed by the Director in holding an enquiry under section 23D of the Act.
Although, there is no rule requiring a person against whom an order is made to appear before the Director on the date of pronouncement of his order, rule 5 of the Rules requires that a copy of the order passed under rule 3(7) should be supplied free of charge to the person against whom the order is made.
In the absence of a provision requiring the service of a notice on such a person informing him that the order would be pronounced on a specified future date, the only date on which the order can be deemed to have been effectively made is the date on which he gets knowledge of the order either by supply of a copy of the order or by any other means.
The period of limitation to appeal cannot be computed from a date earlier than the date on which the aggrieved party has knowledge of the order.
In the absence of proof of knowledge of the order either by supply of its copy or in any other manner the person failing to pay the penalty cannot be proceeded against under section 23F. [991H, 992F] In the instant case the Magistrate and the High Court refused to accept the plea of the Director that a copy of the impugned order had been served on the appellant.
Neither on the date of the complaint nor on the date on which process was issued by the Magistrate had the appellant knowledge of the order imposing the penalty; nor did the charge state that the impugned order had been communicated to him and that he was being tried for non compliance with that order.


judgement:
Civil Appeal No. 1204 of 1978.
Appeal by Special Leave from the Judgment and Order dated 5 4 1978 of the Allahabad High Court (Lucknow Bench) in Second Civil Appeal No. 90/75.
R. K. Garg, V. J. Francis and Sunil Kumar for the Appellant.
Uma Datta, Prem Malhotra and Kishan Datt for the Respondents.
The Judgment of the Court was delivered by FAZAL ALI, J.
How dishonest cousins, looking after the lands of their brother 's widow, situated far away from the place where the widow was living, taking undue advantage of the confi 865 dence reposed in them by their widowed sister in law and having painted a rosy picture of honestly managing the property and giving her due share, cast covetous eyes on their sister in law 's share and with a deplorable design, seek to deprive her of her legal share and deny her legal rights is not an uncommon feature of our village life.
That this is so is aptly illustrated by the facts of this case where the sister in law was driven by the force of circumstances to indulge in a long drawn litigation in order to vindicate her legal rights in wresting her share of the property from the hands of her cousins.
This is the unfortunate story of the poor and helpless appellant, Karbalai Begum, who having failed to get justice from the High Court of Allahabad was forced to knock the doors of the highest Court in the country and has, therefore, filed the present appeal in this Court after obtaining special leave.
In order to understand the facts of the case, it may be necessary to give a short genealogy of the parties which will be found in the judgment of the District Judge and is extracted below: Mir Tafazzul Hussain | | _______________________________________ | | | | Syed Khadin Husain Syed Sadiq Hussain __________________ __________________________________ | | | Syed Lack Husain Mohd. Bashir Modh.
Rasheed (Widow Karbalai (Deftd. No. 1) (Widow Smt Shakira Begum Plaintiff) Bano, Defdt No 2) The appellant Karbalai Begum was the widow of Syed Laek Husain and defendants No. 1 and 2 were her husband 's cousins.
The admitted position seems to be that the plaintiff and the defendants were in joint possession of the plots in dispute, being co bhumidars, because after the abolition of the zamindari by the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 the plaintiff appellant, Mohd. Bashir and Mohd. Rasheed became bhumidars of the plots in dispute.
It is also not disputed that upto 1359 Fasli both the parties had a joint khewat, as would appear from the extract of the khewat produced by the appellant.
The plaintiff 's case was that she was living with her sons at Lucknow and her husband 's cousins were looking after the lands which consisted of agricultural lands and groves and she was given her share by her cousins from time to time.
It was also alleged that she went to the village from time to time and got her share.
In her statement before the trial court, she has clearly stated that the defendants, Mohd. Bashir and Mohd. Rasheed used to manage the properties which were joint and used to give her share and assured her that her share would be properly looked after and protected by them.
Thus, 866 having gained the confidence of the plaintiff the first and the second defendants went on managing the properties and off and on gave her share so that she may not suspect their evil intentions.
The plaintiff further alleged in her statement that during the consolidation proceedings, separate plots were carved out and she was never informed about any proceedings by the defendants and was under the Impression that her share was being properly looked after.
It was only three years before the suit that the plaintiff came to know that her name had been deleted from the khewat and the entire property was mutated in the consolidation of holding proceedings in the name of the defendants.
Hence, the suit by the plaintiff for joint possession over the share.
The suit was dismissed by the trial court but on appeal, the district judge decreed the suit for joint possession in respect of Chakbandi plot Nos. 201 and 274 only.
As regards plot Nos. 93, 94 and 106 the dismissal of the plaintiff 's suit by the trial court was upheld.
In the instant case, therefore, we are concerned only with Chakbandi plot Nos. 201 and 274.
Plot No. 201 was carved out of plot Nos. 158, 159, 164, 165, 167, 166, 168, etc.
and plot No. 274 was formed out of plot Nos. 267, 268, 272, 273, 276, 277, 278, 279 and 280.
The suit was contested by the defendants mainly on the ground that the defendants were in separate occupation of the land or plots in dispute and the plaintiff had absolutely no concern with them.
It was further averred that although at some time before, the lands in dispute were joint but during the consolidation proceedings the plots in possession of the plaintiff were occupied by Adhivasi who having acquired the rights of a Sirdar under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, the plaintiff lost her title by operation of law.
The allegation of the plaintiff that the defendants had committed fraud was stoutly denied.
The learned trial court accepted the allegations of the defendants and dismissed the case of the plaintiff.
The District Judge, however, found that on the admitted facts even after the abolition of zamindari, the position was that in 1357 Fasli the plaintiff 's name was clearly recorded as a co sharer with the defendants and continued to be so until 1359 Fasli as would appear from exhibit 2.
The learned District Judge further found that the name of the plaintiff was suddenly deleted after 1359 Fasli and there was no order of any authority or court to show the circumstances under which the plaintiff 's name was suddenly deleted nor were there any judicial proceedings under which the name of the plaintiff as a co bhumidar was 867 deleted.
The learned District Judge, after a careful consideration of the documentary evidence, came to the clear conclusion that some sort of fraud must have been committed by Mohd. Bashir, and Mohd. Rasheed when in 1362 Fasli the plots were entered exclusively in the name of Mohd. Bashir and Mohd. Rasheed.
Even if no share was given to the plaintiff by the defendants, as the defendants were co shares, unless a clear ouster was pleaded or proved the possession of the defendants as co sharers would be deemed in law to be the possession of the plaintiff.
Another obvious fact which emerges from the admitted position is that if Mohd. Bashir and Mohd. Rasheed were co bhumidars with the plaintiff in the khewat and had also sirdari tenants under them, how could the sirdari tenants occupy the land of one of the co sharers leaving the defendants alone so that the plots were re allotted to them.
It is well settled that mere non participation in the rent and profits of the land of a co sharer does not amount to an ouster so as to give title by adverse possession to the other co sharer in possession.
Indeed even if this fact be admitted, then the legal position would be that Mohd. Basir and Mohd. Rashid, being co sharers of plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaintiff would be deemed to be protected by the trustees.
The learned counsel appearing for the respondent was unable to contest this position of law.
In the present case, it is therefore manifest that the possession of the defendants, apart from being in the nature of constructive trustees, would be in law the possession of the plaintiff.
Apart from this, the fact remains that the District Judge has come to a clear finding of fact after consideration of the evidence that a clear fraud was committed during the consolidation operation either by the defendants or by somebody else as a result of which the rights of the plaintiff were sought to be extinguished.
In this connection, the learned District Judge found as follows: "This shows that a planned fraud was made to drop the appellant 's name from the revenue records and full advantage was taken of the consolidation operations in the village by the respondents.
In para 20 of the written statement, paper 31A, it was pleaded by the respondents that they acquired the suit plot through litigation and the plaintiff 's right extinguished during the consolidation proceedings.
There is no evidence before me to show that there was any litigation with the subtenants and the defendants acquired the plots exclusively.
Even 868 if it is accepted for the sake of arguments that the respondents did obtain the plots through litigation, even then it cannot be said that the plaintiff 's rights extinguished.
" This finding of the learned District Judge was a clear finding of fact and even if it was wrong (though in our opinion it is absolutely correct) it was not open to the High Court to interfere with this finding of fact in second appeal.
Furthermore, the District Judge at another place found that there was no evidence on the record to prove that the plaintiff was not given any share out of the produce and, therefore, the conclusion that the plaintiff should be deemed to be ousted from possession, was not correct.
In this connection, the learned Judge observed as follows: "The argument advanced by the counsel for the respondents that there is no evidence on the record that the plaintiff was given any share out of the produce and, therefore, the plaintiff should be deemed to be ousted from possession, is fallacious.
" This was also a finding of fact which was binding in second appeal.
The High Court seems to have relied on the fact that there was no evidence to prove that the plaintiff was prevented from filing a petition under section 9 of the U.P. Consolidation of Holdings Act, 1953 or that the defendants assured the plaintiff that her name shall be entered in the record during the consolidation proceedings.
Here also, the High Court committed an error of record because the clear evidence of PW, Karbalai Begum, is to the effect that she was not at all informed about the consolidation proceedings and was assured by the defendants that they would take proper care of her share in any proceedings that may be instituted.
This was accepted by the District Judge and should not have been interfered with by the High Court in second appeal.
The High Court proceeded on the basis that there was nothing to show that any fraud was practised upon the consolidation authorities so as to make the order a nullity.
Here the High Court completely misunderstood the case made out by the plaintiff.
It was never the case of the plaintiff that any fraud was committed on the consolidation authorities.
What she had stated in her plaint and in her evidence was that the defendants had practised a fraud on her by giving her an assurance that her share would be properly looked after by them and on this distinct understanding she had left the entire management of the properties to the defendants who also used to manage them.
The trial court did not fully appreciate this part 869 of the case made out by the plaintiff and the District Judge in clear terms accepted the same.
In these circumstances, therefore, the finding of the High Court regarding fraud having been committed in the consolidation proceedings was not legally sound.
The last ground on which the High Court non suited the appellant was that after the chakbandi was completed under the U.P. Consolidation of Holdings Act, the suit was barred by section 49 of the said Act.
It is well settled that unless there is an express provision barring a suit on the basis of title, the courts will not easily infer a bar of suit to establish the title of the parties.
In Subha Singh vs Mahendra Singh & Ors.
this Court made the following observations: "It was thus abundantly clear that an application for mutation on the basis of inheritance when the cause of action arose, after the finalisation and publication of the scheme under Section 23, is not a matter in regard to which an application could be filed "under the provisions of this Act" within the meaning of clause 2 of Section 49.
Thus, the other limb of Section 49, also is not attracted.
The result is that the plea of the bar of the civil courts ' jurisdiction to investigate and adjudicate upon the title to the land or the sonship of the plaintiff has no substance.
" In view of the clear decision of this Court, referred to above, the High Court erred in law in holding that the present suit was barred by section 49 of the U.P. Consolidation of Holdings Act.
Thus, the grounds on which the High Court reversed the decision of the District Judge are not sustainable in law and the judgment of the High Court cannot be allowed to stand.
We, therefore, allow the appeal with costs throughout, set aside the judgment of the High Court, decree the plaintiff 's suit for joint possession as far as plots Nos.
201 and 274 are concerned and restore the judgment of the District Judge.
The cost allowed by this Court would be set off against the sum of Rs. 15,000/ (fifteen thousand only) deposited by the respondents in the High Court and paid to the appellant and the balance may be refunded to the respondents.
N.K.A. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant a widow and defendants nos.
1 and 2 were her husband 's cousins.
They were in joint possession of the plots in dispute, being co bhumidars.
The parties had a joint Khewat upto 1359 Fasli.
The plaintiff filed a suit for joint possession over her share contending that she was living with her sons at Lucknow and defendants were looking after the agricultural land and groves and that she was given her share by the defendant from time to time.
She also went to the village from time to time and got her share.
She alleged that the defendants assured her that her share would be properly looked after and protected by them.
The plaintiff further alleged that it was only 3 years before the suit that she came to know that her name had been deleted from the Khewat, and the entire property was mutated in the consolidation of holding proceedings, in the name of defendants of which she was never informed.
The defendants contested the suit on the grounds that, they were in separate occupation of the land in dispute, the plots in dispute were occupied by Adhivasi who acquired the Sirdar rights under the U. P. Zamindari Abolition and Land Reforms Act, 1950, the plaintiff lost her title by operation of law, and denied the allegation of fraud.
The trial court dismissed the suit but on appeal the District Judge decreed the suit for joint possession in favour of the plaintiff in respect of two plots of the land.
The High Court accepted the appeal of the defendants.
Allowing the appeal this Court, ^ HELD: 1.
The grounds on which the High Court reversed the decision of the District Judge are not sustainable in law and the judgment of the High Court cannot be allowed to stand.
[869F] 2.
Another fact which emerges from the admitted position is that if defendants 1 and 2 were co bhumidhars with the plaintiff in the Khewat and had also sirdari tenants under them, how could the sirdari tenants occupy the land of one of the co sharers leaving the defendants alone so that the plots were reallotted to them.
[867C] 864 3.
It is well settled that mere non participation in the rent and profits of the land of a co sharer does not amount to an ouster so as to give title by adverse possession to the other co sharer in possession.
Even if this fact be admitted, then the legal position would be that defendants nos.
1 and 2 being co sharers of the plaintiff, would become constructive trustees on behalf of the plaintiff and the right of the plaintiff would be deemed to be protected by the trustees.
[867D] In the instant case it is manifest that the position of the defendants apart, from being in the nature of constructive trustees, would be in law the possession of the plaintiff.
[867E] 4.(i) The finding of the District Judge that a planned fraud was made to drop the appellant 's name from the revenue records was a clear finding of fact and even if it was wrong (though it is absolutely correct) it was not open to the High Court to interfere with the finding of fact in second appeal.
[868B] 4.(ii) The High Court proceeded on the basis that there was nothing to show that any fraud was practised upon the consolidation authorities so as to make the order a nullity.
The High Court here completely misunderstood the case made out by the plaintiff.
[868G] 5.
The finding of fact of the District Judge that there was no evidence on the record to prove that the plaintiff was not given any share out of the produce and, therefore, the conclusion that the plaintiff should be deemed to be ousted from possession, was binding in second appeal.
[868C D] 6.
The High Court committed an error of record because the clear evidence of the appellant is to the effect that she was not at all informed about the consolidation proceedings and was assured by the defendants that they would take proper care of her share in any proceedings that may be instituted.
[868F] 7.
It is well settled that unless there is an express provision in the statute barring a suit on the basis of title, the courts will not easily infer a bar of suit to establish the title of the parties.
[869B] Suba Singh vs Mahendra Singh and Ors.
A.I.R. 1974 section C. 1657 referred to.


judgement:
N: Criminal Appeal No. 687 of 1980.
Appeal by Special Leave from the Judgment and Order dated 18 4 1980 of the Punjab and Haryana High Court in Crl.
No. 26 M/1980.
Mrs. Urmila Sirur for the Appellant.
Mrs. Shobha Dixit and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
On August 13, 1979, Gurnam Singh a resident of Chandigarh submitted a complaint to the Judicial Magistrate 1st Class Chandigarh, alleging that the appellant H. section Bains accompanied by two persons had come to his house in a car on the morning of August 11, 1979, at about 8 a.m., tress passed into the house and threatened to kill him and his natural son if he did not take away his natural son Aman Deep Singh from the house of his sister Bakshish Kaur, who had taken the boy in adoption as she was issueless.
Bakshish Kaur was the widow of the brother of the appellant and the adoption made by Bakshish Kaur was not to the liking of the appellant.
It was alleged in the complaint that the appellant was armed with a revolver which he pointed at the complainant.
The complainant raised a hue and cry.
The accused and his companions fled away in their car.
As August 11, 1979 and August 12, 1979 were holidays, he was able to file the complaint only on 13th August, 1979.
The learned Magistrate to whom the complaint was submitted ordered an investigation by the police under Sec.
156(3) of the Code of Criminal Procedure.
The police after completing the investigation, 937 submitted a report to the Magistrate under Sec.
173 of the Code of Criminal Procedure stating that the case against the appellant was not true and that it might be dropped.
The police arrived at the conclusion that the case against the appellant was not true as their investigation revealed, according to them, that the appellant was at Amritsar with Shri Jai Singh, District Magistrate of Amritsar at 9 a.m. on August 11, 1979 and it was, therefore, impossible for him to have been at Chandigarh at 8 a.m. on August 11, 1979.
The learned Magistrate after perusing the report submitted by the police disagreed with the conclusion of police, took cognizance of the case under Sections 448, 451 and 506 of the Indian Penal Code and directed the issue of process to the appellant.
Aggrieved by the issue of process, the appellant filed Criminal Miscellaneous Case No. 26 M of 1980, in the High Court of Punjab and Haryana to quash the proceedings before the Magistrate.
The application was dismissed by the High Court and the appellant filed a petition for the grant of special leave to appeal against the order of the High Court.
We granted Special Leave and straightaway heard the appeal with the consent of the parties.
Shri Kapil Sibal urged that the Magistrate had issued process to the accused without recording the statement, on oath, of the complainant and the witnesses under Sec.
200 Criminal Procedure Code and therefore, he must be taken to have taken cognizance of the case under Sec.
190(1)(b), as if upon a police report.
Shri Sibal submitted that the Magistrate was not competent to take cognizance of the case as if it was upon a police report as the report under Sec.
173 Criminal Procedure Code submitted to him disclosed that no offence had been committed by the accused.
According to Shri Sibal, in the circumstances of the case, the Magistrate, on receipt of the report under Sec.
173 Criminal Procedure Code to the effect that the case against the accused was not proved, had only two options before him.
He could either order a further investigation or he could take cognizance of the case as if upon a complaint, record the statements of the complainant and witnesses under Sec.
200 Criminal Procedure Code and then proceed to issue process if he was satisfied that process ought to be issued.
In any case Shri Sibal submitted that the order of the Ist Class Magistrate taking cognizance of the case was so unjudicial that it ought to be struck down.
Shri Sibal invited our attention to two decisions of this Court: Abhinandan Jha & Ors.
vs Dinesh Mishra; and Tula Ram & Ors.
vs Kishore Singh.
938 Chapter XII of the Code of Criminal Procedure 1973 deals with information to the Police, and their powers to investigate.
156 (1) vests in an officer incharge of a Police Station the power to investigate any cognizable case, without the order of a Magistrate.
156(3) authorises a Magistrate, empowered under Sec. 190, to order an investigation as mentioned in Sec.
156(1).
The provisions from Sec.
157 onwards are concerned with the power and procedure for investigation.
169 prescribes that if upon an investigation it appears to the officer incharge of the Police Station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond (with or without sureties) to appear if and when required, before a Magistrate empowered to take cognizance of an offence on a police report and to try the accused or commit him for trial.
170 prescribes that if upon investigation it appears to the officer incharge of the Police Station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of an offence on a police report and to try the accused or commit him for trial.
If the offence is bailable the officer shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.
173(1) casts a duty upon the police officer to complete the investigation without unnecessary delay.
173(2) prescribes that as soon as the investigation is completed the officer incharge of the police station shall forward to a Magistrate empowered to take cognizance of an offence on a police report, a report in the prescribed form stating the various particulars mentioned in that sub section.
190(1) which occurs in Chap.
XIV (Conditions requisite for initiation of proceedings) may be extracted at this stage.
It is as follows: "190(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub section (2), may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; 939 (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed".
What has been extracted is Sec. 190 as it stands at present.
190 of the previous Code was slightly different.
Clause (1)(b) read as "upon a report in writing of such facts made by any police officer".
In clause (1)(c) after the word 'knowledge ', the words 'or suspicion ' occurred, and these words have now been omitted.
Chapter XV (Sections 200 to 203) of the Code deals with "complaints to Magistrates".
A Magistrate taking cognizance of an offence on complaint is required by Sec. 200 to examine the complainant and the witnesses present, if any.
Sec. 202 provides that a Magistrate taking cognizance of a case upon complaint, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.
203 empowers the Magistrate to dismiss the complaint, if, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the enquiry or investigation (if any) under Sec. 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding.
Chapter XVI deals with "commencement of proceedings before Magistrate" and Sec. 204 enables a Magistrate to issue summons or a warrant as the case may be to secure the attendance of the accused if in the opinion of the Magistrate taking cognizance of the offence there is sufficient ground for proceeding.
It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him.
He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Sec. 200.
Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Sec.
If in his opinion there is sufficient ground for proceeding he may issue process under Sec. 204.
However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding.
He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding.
On the other hand, in the first instance, on receipt 940 of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Sec. 156(3).
The police will then investigate and submit a report under Sec. 173(1).
On receiving the police report the Magistrate may take cognizance of the offence under Sec.
190(1)(b) and straightaway issue process.
This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not.
The Police report under Sec.
173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom.
The Magistrate is not bound by the conclusions drawn by the Police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further.
The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Sec.
200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process.
The mere fact that he had earlier ordered an investigation under Sec. 156(3) and received a report under Sec.
173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204.
Thus, a Magistrate who on receipt of a complaint, orders an investigation under Sec.
156(3) and receives a police report under Sec. 173(1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Sec.
190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report: (3) he may take cognizance of the offence under Sec.
190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Sec. 200 If he adopts the third alternative, he may hold or direct an inquiry under Sec. 202 if he thinks fit.
Thereafter he may dismiss the complaint or issue process, as the case may be.
In Abhinandan Jha & Ors.
vs Dinesh Mishra, (supra) the question arose whether a Magistrate to whom a report under Sec.
173(1) had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge sheet, on his disagreeing with the report submitted by the Police.
This Court held that the Magistrate had no jurisdiction to direct the police to submit a charge sheet.
It was open to the Magistrate to agree or 941 disagree with the police report.
If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings.
If he came to the conclusion that further investigation was necessary he might make an order to that effect under Sec.
156(3).
If ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report.
While expressing the opinion that the Magistrate could take cognizance of the offence notwithstanding the contrary opinion of the police the Court observed that the Magistrate could take cognizance under Sec.
190(1)(c) '.
We do not have any doubt that the reference to 'Sec.
190(1)(c) ' was a mistake for 'Sec.
190(1)(b) '.
That appears to be obvious to us.
But Shri Kapil Sibal urged that the reference was indeed to Sec.
190(1)(c) since at that time Sec.
190(1)(c) included the words 'or suspicion ' and the Court had apparently taken the view that the Magistrate could take cognizance of the offence not under Sec.
190(1) (b) as if on a police report but under Sec.
190(1)(c) as if on suspicion '.
We do not agree with this submission.
190(1)(c) was never intended to apply to cases where there was a police report under Sec. 173(1).
We find it impossible to say that a Magistrate who takes cognizance of an offence on the basis of the facts disclosed in a police report must be said to have taken cognizance of the offence on suspicion and not upon a police report merely because the Magistrate and the Police arrived at different conclusions from the facts.
The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint.
If a complainant states the relevant facts in his complaint and alleges that the accused is guilty of an offence under Sec.
307 Indian Penal Code the Magistrate is not bound by the conclusion of the complainant.
He may think that the facts disclose an offence under Sec.
324 Indian Penal Code only and he may take cognizance of an offence under Sec. 324 instead of Sec. 307.
Similarly if a police report mentions that half a dozen persons examined by them claim to be eye witnesses to a murder but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses.
He may prefer ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence.
If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report.
He would be taking cognizance upon the facts disclosed by the police 942 report though not on the conclusions arrived at by the police.
It could not be said in such a case that he was taking cognizance on suspicion.
In Tula Ram & Ors.
vs Kishore Singh (supra) the Magistrate, on receiving a complaint, ordered an investigation under Sec.
156(3).
The Police submitted a report indicating that no case had been made out against the accused.
The Court, however, recorded the statements of the complainant and the witnesses and issued process against the accused.
It was contended that the Magistrate acted without jurisdiction in taking cognizance of the case as if upon a complaint when the police had submitted a report that no case had been made out against the accused.
This Court held that the Magistrate acted within his powers and observed that the complaint did not get exhausted as soon as the Magistrate ordered an investigation under Sec.
156(3).
We are, therefore unable to agree with the submission of Shri Sibal that the Magistrate acted without jurisdiction in taking cognizance of the offence and issuing process to the accused notwithstanding the fact that the police report was to the effect that no case had been made out.
We do not propose to say a word about the merits of the case since it was entirely a matter for the learned Magistrate to take cognizance or not to take cognizance of the several offences.
We however wish to observe that it was wholly unnecessary for the Magistrate to write such an elaborate order as if he was weighing the evidence and finally disposing of the case.
We also desire to say that some of the observations of the learned Magistrate about the District Magistrate were wholly uncalled for as the latter was yet to appear before him as a witness.
We are told that the case has already been transferred to some other Magistrate.
It is, therefore, unnecessary to say anything further in the matter.
The appeal is, therefore, dismissed.

summary/full:
On a complaint by the complainant that the appellant, armed with a revolver and accompanied by two persons, trespassed into his house and threatened to kill him, the Magistrate ordered investigation by the police under section 156(3) of the Code of Criminal Procedure.
In their report under section 173 the police stated that the complaint was false in that on the date and time mentioned therein, the appellant was at a different place far away from the place where the complainant alleged that the appellant had threatened to kill him.
Disagreeing with the conclusion of the police the Magistrate took cognizance of the case under sections 448, 451 and 506 I.P.C. and directed the issue of process to the appellant.
The appellant 's petition seeking to quash the proceedings before the Magistrate was dismissed by the High Court.
In appeal to this Court, it was contended on behalf of the appellant that the Magistrate was not competent to take cognizance of the case as if it was upon a police report since the report under section 173 by the police did not disclose any offence having been committed by the appellant.
Dismissing the appeal ^ HELD: Where the Magistrate, on receiving a complaint orders investigation under section 156(3) and receives a report under section 173 to the effect that no offence was disclosed against the accused, the Magistrate might either (i) decide that there is no sufficient ground for proceeding further and drop action or (ii) he may take cognizance of the offence under section 190(1)(b) and issue process without being bound in any manner by the conclusion of the police or (iii) he may take cognizance of the offence under section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under section 200.
If he adopts the third alternative, he may hold or direct an enquiry under section 202 if he thinks fit.
Thereafter he may dismiss the complaint or issue process as the case may be.
[940E G] In any event, it is impossible to say that the Magistrate, who takes cognizance of an offence on the basis of the facts disclosed in the police report, 936 must be said to have taken cognizance of the offence "on suspicion" and not upon police report, merely because he and the police arrived at different conclusions from the facts.
The Magistrate is not bound by the conclusions of the police: if he ignores their conclusions and takes cognizance of the offence himself, he does so upon the facts disclosed by the police report though not on the conclusions arrived at by them.
In such a case, it cannot be said that he was taking cognizance "on suspicion".
[942E H] In Abhinandan Jha & ors.
vs Dinesh Mishra ; , where this Court stated that the Magistrate could take cognizance of the offence under section 190(1)(c) notwithstanding the contrary opinion of the police, the reference to sub clause (c) therein was a mistake for sub clause (b).
The argument of the appellant that the Court, in this case, had apparently taken the view that the Magistrate could take cognizance of the offence not under section 190 (1)(b) as if it was a police report but under section 190(1)(c) as if it was "on suspicion" is not sustainable, because section 190(1)(c) was never intended to apply to cases where there was a police report under section 173(1).
[942C D]


judgement:
ition No. 267 of 1979 (Under Article 32 of the Constitution) E. X. Joseph and N. section Das Bahl for the Petitioners.
L. N. Sinha, Att.
of India and Hardayal Hardy for RR 1 to 4.
section L. Aneja for RR 5 10 and 13.
The Judgment of the Court was delivered by CHANDRACHUD, C. J.
This is a Writ Petition under Article 32 of the Constitution by which the petitioners ask for an appropriate writ quashing the orders dated May 29, 1965 and May 16, 1975 issued by Respondent 2, the Director General of Posts and Telegraphs, New Delhi, and for striking down the provisions in Col. 10 of the Schedule to the Recruitment Rules, 1969.
Petitioner 1 joined the Posts and Telegraphs Audit Office of the Government of India at Delhi on July 31, 1956 as a Lower Division Clerk.
In 1961 he qualified in the departmental examination for promotion as an Upper Division Clerk.
On May 4, 1962 he joined the Savings Bank Control Organisation and Savings Bank Internal 974 Check Organisation (SBCO ICO), as an Upper Division Clerk.
Petitioner 2 joined the P and T Audit Office at Madras on June 3, 1950 as a Lower Division Clerk.
On passing the departmental examination he was promoted as an Upper Division Clerk on September 10, 1958.
He joined SBCO ICO on April 1, 1963 in the same capacity.
He is due to retire on October 31, 1980.
Respondent 1 to the Writ Petition is the Union of India, Respondent 2 is the Director General of P & T and Respondents 3 and 4 are the Post Master Generals of the Delhi Circle and the Tamil Nadu Circle respectively.
Respondents 5 to 13, though junior to Petitioner 1 in the Delhi Circle, have been promoted as Selection Grade Clerks/Head Clerks in supersession of him.
Respondents 14 to 47, though junior to Petitioner 2 in the Tamil Nadu Circle, have been promoted as Selection Grade Clerks/Head Clerks in supersession of him.
The petitioners, in effect challenge their supersession to the post of Selection Grade Clerks/Head Clerks.
Until the year 1961, the Savings Bank work of the post office was under the supervision and control of the Indian Audit and Accounts Department of which the Comptroller and Auditor General of India is the Head.
The branches of the Indian Audit and Accounts Department doing the Savings Bank work and the work of auditing P & T accounts were called P & T Audit Offices.
The Government of India having decided that the Savings Bank work should be taken over by the P & T Department, the audit offices were relieved of that responsibility by stages during the years 1961 to 1964 and a new Organisation called the Savings Bank Control Organisation and Savings Bank Internal Check Organisation (SBCO ICO) was created on May 4, 1962.
With the setting up of that organisation, volunteers were given the option of joining it.
Amongst those who were thus invited to opt for service in the new Organisation were Upper Division Clerks in the Audit Offices, Lower Division Clerks who had qualified for promotion to the Upper Division Clerks ' cadre in the audit offices, employees under the Post Master General and lastly those from amongst the time scale clerks in the P & T Accounts Organisation.
Employees belonging to the aforesaid departments who opted for service in the new Organisation were transferred thereto in the interest of public service.
In the audit department, 10% of the sanctioned strength of the posts of Upper Division Clerks were in the Selection Grade and promotion to those posts was made on the basis of seniority cum fitness.
By a letter dated May 15, 1964 the P & T Board informed all the Heads of Circles that the sanction of the President was obtained 975 to the conversion of 10% posts in the cadre of UDCs in the SBCO ICO into Selection Grade UDCs.
But, by the impugned letter No. 56/4/65 SPB I dated May 29, 1965 addressed to all Heads of P & T Circles, the Director General, Posts and Telegraphs modified the policy of reservation of 10% of the posts in the cadre of UDCs in the Selection Grade by directing, that the total number of Selection Grade posts available for the UDCs who came from the Audit Offices should be 10% of the total number of Audit office UDCs working in any particular Circle of the organisation.
Thus, whereas, under the original intendment, if the total number of posts in the cadre of UDCs in the new Organisation was 100, 10 posts were available in the Selection Grade for all the UDCs, under the new policy if, out of the total strength of 100, 40 posts were occupied by UDCs who had come from the Audit Offices, they would, as amongst themselves, be entitled to four posts only in the Selection Grade.
Under the new dispensation, the test is how many UDCs from Audit Offices are working in the Circle, not what is the total strength of the UDC cadre in the Circle.
On January 22, 1968, the President of India, acting in exercise of his powers under Article 309 of the Constitution, framed rules regulating the recruitment to the cadre of UDCs and other posts in the SBCO ICO.
The rules are called "The Indian Posts & Telegraphs (Clerks in Savings Bank Control and Internal Check Organisation) Recruitment Rules, 1969".
Brevity is obviously indicated and, for its sake, we will refer to these rules as the Recruitment Rules, 1969.
Rule 4 provides that the method of recruitment to the various posts, the age limit, qualifications etc.
shall be as specified in Columns 4 to 12 of the Schedule provide to the Rules.
Column 4 of the Schedule provides that the post of Selection Grade UDCs is a non Selection post.
Column 9 provides that recruitment of Selection Grade UDCs will be exclusively by promotion.
Column 10 provides that the appointment to the Selection Grade will be made from amongst Upper Division Clerks with 10 years of service in that grade in case of Audit office Staff, or with five years service in that grade in case of other Upper Division Clerks.
This is one of the provisions of the Rules which is challenged as being discriminatory.
On the basis of the recommendations made by the Third Pay Commission, the Supervisory Cadre in the SBCO ICO was reorganised with a view to providing better promotional avenues to the members of the staff.
Accordingly, the Director Gerneral issued instructions by his letter dated April 10, 1975 that the existing provision relating to the Selection Grade Posts will be replaced by the creation of a cadre of Head Clerks and that the number of posts in the said 976 cadre of Head Clerks will be fixed at 20 per cent of the posts of UDCs.
By another letter dated May 16, 1975 the Director General clarified this position by saying: "Under the new scheme the audit office UDCs will get the posts of Head Clerks to the extent of 20% of their strength instead of 10% as at present.
The remaining posts of Head Clerks will go to the non audit UDCs.
" This is the other of the two impugned letters.
The petitioners contend that the classification of the Upper Division Clerks for the purpose of promotion to the Selection Grade/Head Clerks Cadre, on the basis of the sources from which they are drawn and the limiting of the promotional posts available to them to 10% in the case of Selection Grade Posts and 20% in the case of the posts of the Head Clerks has resulted in stagnation of the UDCs.
, who joined the new organisation from the Audit Offices.
The petitioners ' grievance is that UDCs.
who joined that organisation from the P & T offices and who were junior to them in terms of the length of service in the U.D.C. cadre have been already promoted to the Selection Grade/Head Clerks cadre.
This classification of the U.D.Cs. of the SBCO ICO into two groups for the purpose of promotion on the basis of the sources from which they are drawn is challenged by the petitioners as discriminatory, arbitrary and unreasonable.
According to them, since the promotional post is a non selection post, the only criterion for promotion from amongst the U.D.Cs.
in the SBCO ICO can be the length of service in the cadre of U.D.Cs., subject to fitness.
Shri E. X. Joseph, who appears on behalf of the petitioners has made a very neat argument, focussing with the help of telling illustrations the injustice which has been done to the petitioners and to those similarly situated.
The learned Attorney General who appears for the Union of India and Shri Aneja who appears for the U.D.Cs.
drawn from the other departments, have attempted to meet Shri Joseph 's argument but we are left in no doubt that the policy adopted by the Union of India is discriminatory and unreasonable.
Though it appears prima facie that U.D.Cs.
in SBCO ICO were drawn from four different sources, the sources are really two and not four.
U.D.Cs.
in that organisation were appointed from amongst those who were previously serving in the Audit Offices and secondly from amongst the other employees of the P & T Department.
The recruitment rules of 1969 make a classification amongst the U.D.Cs. by providing that in so far as the U.D.Cs.
drawn from the 977 Audit Offices are concerned they will be eligible for promotion to the Selection Grade/Head Clerks Cadre after they put in a service of 10 years in the new organisation.
In regard to the U.D.Cs.
drawn from the P and T Department, the rules provide that they will be eligible for such promotion on completing five years ' service only.
Bearing in mind that the posts in the Selection Grade/Head Clerks Cadre are non selection posts to which appointments are made by the test of seniority cum fitness, that is the farthest limit to which classification of the U.D.Cs.
for the purpose of promotion could be carried.
It is difficult to appreciate the logic or the principle behind the direction that the Selection Grade Posts or the posts of Head Clerks which will be available to the U.D.Cs.
drawn from the Audit offices will be determined on the basis of the existing strength, at any given time, of such Clerks in the particular circle.
Since, under the impugned directions, the number of Selection Grade Posts/Head Clerks has to be 10% of the number of U.D.Cs.
drawn from the Audit Offices, no promotional opportunities at all will be available to them in certain circles in which less than 10 U.D.Cs.
drawn from the Audit Offices are working.
It is indisputable that, according to the impugned directive, there have to be at least ten persons drawn from the Audit Offices in a Circle, in order that at least one promotional post may become available to them.
We are informed, which again is not disputed, that in some small Circles, less than 10 U.D.Cs.
drawn from the Audit Offices are working in the new organisation.
These persons, for a purely fortuitous reason, will be denied for ever all promotional opportunities.
That seems to us wholly indefensible.
Apart from the injustice in specific cases where U.D.Cs.
drawn from the Audit Offices are attached to comparatively smaller Circles, the classification made for the purpose of determining the promotional opportunities seems to us unreasonable and arbitrary.
It is contended by the learned Attorney General that persons drawn from different sources were not integrated into a common service in the instant case and therefore different rules of promotion can be applied to the two classes.
We are unable to accept this contention.
The duties, functions and responsibilities of all the U.D.Cs.
in the new organisation are identical.
They are all in the same cadre and they draw the same pay in the same grade.
There is no reason then why different tests should be prescribed for determining their respective promotional opportunities, and that too solely in reference to the source from which they are drawn.
The test of educational qualifications can conceivable be an intelligible differentia bearing nexus 978 with the object of ensuring greater efficiency in public services.
But once a cadre is formed by recruiting persons drawn from different departments of the Government, there would normally be no justification for discriminating between them by subjecting one class to more onerous terms in the matter of promotional chances.
The impugned directives are therefore unconstitutional.
Apart from this consideration, we are unable to understand how the Director General could issue any directive which is inconsistent with the Recruitment Rules of 1969 framed by the President in the exercise of his powers under Article 309 of the Constitution.
Those rules do not provide for the kind of classification which is made by the Director General by his letters to the Heads of respective Circles of the new organisation.
It may be recalled that the Recruitment Rules only provide for a classification on the basis of the length of service in the new organisation.
Any directive which goes beyond it and superimposes a new criterion on the Rules will be bad as lacking in jurisdiction.
No one can issue a direction which, in substance and effect, amounts to an amendment of the Rules made by the President under Article 309.
That is elementary.
We are unable to accept the learned Attorney General 's submission that the directive of the Director General is aimed at further and better implementation of the Recruitment Rules.
Clearly, it introduces an amendment to the Rules by prescribing one more test for determining whether U.D.Cs.
drawn from the Audit Offices are eligible for promotion to the Selection grade/Head Clerks Cadre.
The High Court of Kerala in Balakrishnan vs Comptroller & Auditor General of India and the High Court of Karnataka in Krishnamurthy C.K. vs Director General, P & T have struck down the impugned directions issued by the Director General P & T on the ground that they are discriminatory and therefore unconstitutional.
These decisions of the Kerala and the Karnataka High Courts are correct.
In fact, it is significant that the Union of India did not file any appeal against those decisions and has acquiesced in them.
The High Court of Andhra Pradesh in V. Subramanyam vs The Director General of Posts and Telegraphs, New Delhi and the High Court of Madras in V. section Rajagopalan vs post Master General seem to have rejected the writ petitions filed before them by persons similarly situated as the petitioners, by holding that no 979 discrimination was involved in fixing separate quotas for the purpose of promotion between the U.D.Cs.
drawn from the Audit Offices and the other U.D.Cs.
With respect, we consider the decisions of the High Courts of Andhra Pradesh and Madras as incorrect.
The petitioners have also challenged the provision in Column 10 of item 3 of the Schedule to the Recruitment Rules of 1969 which provides that U.D.Cs.
drawn from Audit Offices must put in 10 years of service for acquiring eligibility for promotion whereas other U.D.Cs. are eligible for promotion after putting in 5 years ' service.
We are not inclined to entertain that challenge since the impugned provision has been in force since 1969 and it was not until the filing of this petition in 1979 that any objection was taken to its legality.
Besides, we are of the opinion that considering the history leading to the formation of the new organisation, SBCO ICO, the distinction made between the two classes of U.D.Cs. in the context of the length of their service for the purposes of promotion is not arbitrary or unreasonable.
The staff of the Audit Offices which was engaged in the Savings Bank 's work might well have faced retrenchment.
Instead of subjecting them to that hardship, they were given the option of joining the new organisation.
Experience wise also, there would appear to be fair justification for requiring them to put in longer service in the new organisation before they are eligible for promotion to the higher grade.
That challenge has therefore to be repelled.
In the result, we allow the writ petition partly and quash the directions issued by respondent 2 by his letters of May 16, 1975 and May 29,1965 to the effect that U.D.Cs.
drawn from the Audit Offices will be eligible for promotion to the Selection Grade on the basis of 10 per cent of the posts held by them or to the Head Clerks ' Cadre on the basis of 20 per cent of the posts held by them in SBCO ICO.
They and the other U.D.Cs. will accordingly be entitled equally to promotional opportunities.
We direct that the petitioners, and others similarly situated as them, shall be promoted to the Selection Grade/ Head Clerks Cadre with effect from the dates on which they were due for promotion, by applying the test of seniority cum fitness.
Since we have upheld the provision in Column 10 of item 3 of the Schedule to the Recruitment Rules, 1969, the petitioners will have become eligible for promotion after completing 10 years ' service in SBCO ICO.
Since the demotion of the respondents or any of them is likely to lead to undue hardship to them and to some administrative confusion, the Government may create supernumerary posts to which the petitioners and others similarly situated as them, may be promoted.
We are informed that consequent upon the judgments of the High 980 Courts of Kerala and Karnataka, the Government has adopted a similar course in the Kerala and Karnataka Circles.
The Writ Petition thus succeeds partly.
The petitioners will be entitled to their costs from the first respondent, the Union of India.
NKA Petition partly allowed.

summary/full:
The Government of India created the Savings Bank Control Organisation and Savings Bank Check Organisation (SBCO ICO).
Amongst those who were invited to opt for service in the said organisation were UDCs in the Audit Offices, LDCs who had qualified for promotion to the UDC cadre in the Audit Offices, employees under the Post Master General and those from amongst the Time Scale Clerks in the P & T Accounts Organisation.
By a letter dated May 15, 1964 the P & T Board informed all the Heads of the Circles that the sanction of the President of India was obtained to the conversion of 10% posts in the cadre of UDCs in the SBCO ICO into Selection Grade UDCs.
But, by his letter dated May 29, 1965 addressed to all Heads of P & T Circles, the Director General, Post & Telegraphs modified the policy of reservation of 10% of the post in the cadre of UDCs in the Selection Grade by directing, that the total number of Selection Grade Posts available for the UDCs who came from the Audit offices should be 10 of the total number Audit officer UDCs working in any particular circle of the Organisation.
On January 22, 1968, the Indian Posts & Telegraphs (Clerks in Savings Bank Control and Internal Check Organisation) Recruitment Rules, 1969 were framed regulating the recruitment to the cadre of UDCs and other posts in the SBCO ICO.
Col. 10 of Item 3 of the Schedule to the Rules provides that the appointment to the Selection Grade will be made from amongst UDCs with 10 years of service in that grade in case of Audit Office Staff, or with five years ' service in that grade in case of other UDCs.
Later, the Supervisory Cadre in the SBCO ICO was recognised.
Creating a cadre of Head Clerks in place of the Selection Grade posts and fixing the number of posts in the said cadre at 20% of the posts of UDCs.
By letter dated May 16, 1965, the Director General however, clarified the position by saying that "under the new scheme the audit office UDCs will get the post of Head Clerks to the extent of 20% of their strength instead of 10% as at present.
The remaining posts of Head Clerks will go to the non audit UDCs".
972 The two petitioners who belonged to the P & T Audit Offices and had qualified the departmental examination for promotion as UDCs, joined the SBCO ICO as UDCs.
They challenged the classification of UDCs for the purposes of promotion to the Selection Grade/Head Clerks cadre on the basis of the sources from which they were drawn and the limiting of the promotional posts available to them to 10% in the case of Selection Grade post and 20% in the case of Head Clerk posts thereby resulting in promotion of their Juniors who had joined the organisation from the P & T Offices, as discriminatory, arbitrary and unreasonable.
According to them the only criterion for promotion from amongst the UDCs in the SBCO ICO could be the length of service in the cadre of UDCs, subject to fitness.
The provision in Column 10 of Item 3 of the Schedule to the Recruitment Rules of 1969 was also challenged.
The respondents argued that persons drawn from different sources were not integrated into a common service and therefore different rules of promotion could be applied to the two classes and that the directive of the Director General was aimed at further and better implementation of the Recruitment Rules.
Partly allowing the petition.
^ HELD 1.
The Directions issued by Respondent 2 by his letters dated May 16, 1975 and May 29, 1965 that UDCs drawn from the Audit offices will be eligible for promotion to the Selection Grade on the basis of 10% of the posts or to the Head Clerks cadre on the basis of 20% of the posts, held by them in SBCO ICO are quashed.
[979 E F] The petitioners and the other UDCs will be entitled equality to promotional opportunities.
They and others similarly situated as them shall be promoted to the Selection Grade/Head Clerks Cadre with effect from the dates on which they were due for promotion by applying the test of seniority cum fitness.
[979 F G] 2.
The policy adopted by respondent 2 is discriminatory and unreasonable.
Apart from the injustice in specific cases where UDCs drawn from the Audit Offices are attached to comparatively smaller circles, the classification made for the purpose of determining the promotional opportunities seems unreasonable and arbitrary.
Since under the impugned directions, the number of Selection Grade/Head Clerks has to be 10% of the number of UDCs drawn from the Audit Offices, no promotional opportunities at all would be available to them in certain circles in which less than 10 UDCs drawn from the Audit Offices are working.
These persons, for a purely fortuitous reason.
will be denied for ever all promotional opportunities.
That seems wholly indefensible.
[976G, 977B F] 3.
The duties, functions and responsibilities of all the UDCs being identical, there is no reason why different tests should be prescribed for determining their respective promotional opportunities and that too solely in reference to the source from which they are drawn.
The test of educational qualifications can conceivably be an intelligible differentia bearing nexus with the object of ensuring greater efficiency in public services.
But once a cadre is formed by recruiting persons drawn from different departments of the Government, there would normally be no justification for discriminating between them by subjecting one class to more onerous terms in the matter of promotional chances.
The impugned directives are therefore unconstitutional.
[977G H, 978A B] 973 Balakrishnan vs Comptroller & Auditor General of India, 1976 Kerala Law Times 401 & C. K. Krishnamurthy vs Director General P & T , affirmed.
V. Subramanyam vs The Director General of Posts and Telegraphs, New Delhi WP 3935/75 decided on 18th November 1978 & V. section Rajagopalan vs Post Master General WP 3796/75 decided on 24th November 1976, reversed.
4.No one can issue a direction which, in substance and effect, amounts to an amendment of the Rules made by the President under Article 309.
The Recruitment Rules of 1969 do not provide for the kind of classification which is made by the Director General by his letters to the Heads of respective Circles of the new organisation.
They only provide for classification on the basis of length of service in the new organisation.
Any directive which goes beyond it and superimposes a new criterion on the rules will be bad as lacking in jurisdiction.
[978B E] 5.
The distinction made between the two classes of UDCs, in the context of the length of their service for the purposes of promotion is not arbitrary or unreasonable.
The staff of the Audit Offices which was engaged in the Savings Bank 's work might well have faced retrenchment.
Instead of subjecting them to that hardship, they were given the option of joining the new organisation.
Experience wise also, there would appear to be fair justification for requiring them to put in longer service in the new organisation before they are eligible for promotion to the higher grade.
The provision in Col.10 of Item 3 of Schedule to the Recruitment Rules 1969 is therefore upheld.
[979C E]


judgement:
Civil Appeal No. 2520 of 1980.
Appeal by Special Leave from the Judgment and order dated 3 12 1979 of the Allahabad High Court in Civil Misc.
Writ No, NIL of 1979.
Yogeshwar Prasad and Mrs. Rani Chhabra for the Appellants.
O. P. Rana and P. K. Pillai for the Respondents, The Judgment of the Court was delivered by DESAI, J.
The appellants applied for temporary permits under section 68 F (1 C) for plying the passenger vehicles on Khurja Pahasu Chhatari Dabai Rajghat Ramghat Atrauli route (route for short) which applications came to be rejected by the State Transport Authority and their appeal to the State Transport Appellate Tribunal and writ petition to the High Court, of Allahabad did not meet with success.
It is a common ground that in respect of the route a scheme has been prepared and published under section 68C of Chapter IV A of .
The route in question is an inter regional route and therefore an application for temporary permit for the period intervening between the date of publication of the scheme and the date of publication of the approved or modified scheme has to be made to the State Transport Authority under sec.
68(1 C).
Ignoring the previous history of the litigation for the present, it may be noticed that the appellants made applications to the State Trans port Authority for grants of temporary permits to ply their vehicles on the route.
The U.P. State Road Transport Corporation (Corporation for short) also made an application for grant of three temporary 983 permits for the same purpose and the application of the Corporation for three permits was granted while the application made by each of the appellants was rejected on The ground that once a scheme has been published in view of the provision contained in Sec.
68 F(1 A) the Corporation alone to the exclusion of others, is entitled to apply for temporary permit and if such application is made by the Corporation and granted no one else is entitled to obtain a temporary permit.
This decision of the State Transport Authority has been upheld both by the State Transport Appellate Tribunal and the High Court Section 68 F(1) makes it obligatory upon the State Transport Authority or Regional Transport Authority as the case may be to grant permit of the nature envisaged in the section to the Corporation to the exclusion of any other applicant.
Section 68 F (1 A) confers power on the State Transport Authority or the Regional Transport Authority as the case may be, for the period intervening between the date of publication of the scheme and the date of publication of the approved or modified scheme to increase in public interest the number of vehicles operating on the route or the area in respect of which the scheme has been published by State Transport Corporation under section 68C and further enables the Corporation to apply for temporary permits to ply the vehicles during the interregnum.
On such applications being made it is obligatory upon the State Transport Authority or the Regional Transport Authority as the case may be to grant such temporary permits.
Section 68 F (1 B) is not relevant for the present purpose.
Section 68 F(1 C) reads as under: "If no application for a temporary permit is made under sub section (l A), the State Transport Authority or the Regional Transport Authority, as the case may be, may grant, subject to such conditions as it may think fit, temporary permit to any person in respect of the area or route or portion thereof specified in the scheme and the permit so granted shall cease to be effective on the issue of a permit to the State Transport Undertaking in respect of that area or route or portion thereof.
" Section 68 F (1D) takes away the power of permit granting authority to grant or renew any permit during the period intervening between the date of publication, under section 68 C of any scheme and the date of publication of the approved or modified scheme, in favour of any person for any class of road transport service in relation to an area or route or portion thereof covered by such scheme except as provided in sub section ((1 A) and sub section (1 C).
984 The Corporation has published a scheme in respect of the route.
Even when a scheme is published it is open to the State Transport Authority or the Regional Transport Authority as the case may be to fix or increase the number of vehicles that may operate on the route.
But the power to increase the number must be exercised in public interest.
It is common ground that the strength of vehicles on the route in question was raised from 13 to 20.
Hence in view of this raising of the strength, 7 temporary permits could be granted.
However, in view of the provision contained in section 68 F(1 A) consequent upon the scheme being published by the Corporation under section 68 C in respect of the route the Corporation will be entitled to all the temporary permits to the exclusion of any other operator.
But Legislature was aware of a possible situation where the Corporation though entitled to temporary permits to the exclusion of other operators may not be in a position to avail of this statutory right.
Section 68 F(1 C) appears to have been introduced to meet with the situation arising out of the inability of the Corporation to obtain all available temporary permits.
Section 68 F(1 C) caters to such a situation where a scheme has been published and, therefore, the Corporation would be entitled, to temporary permits till the approved scheme is published, yet if the Corporation is unable to provide service by obtaining all requisite temporary permits, the State Transport Authority or the Regional Transport Authority as the case may be, in exercise of power conferred specifically upon it by section 68 F(1 C) can grant temporary permits to persons other than the Corporation to operate vehicles on the route for which the scheme is published till modified or approved scheme is published.
It is not in dispute that there are 7 vacancies for temporary permits.
It is an admitted position that the Corporation applied for only 3 permits.
The State Transport Authority has not recorded finding that in public interest remaining 4 permits were not required to be issued.
Undoubtedly, therefore, there were 4 vacancies for which 4 temporary permits could be issued by the State Transport Authority on this inter regional route.
Undoubtedly the permits will have to be temporary permits because the scheme has been published in respect of the route under section 68C.
The State Transport Authority, the State Transport Appellate Tribunal and, the High Court fell into an error by interpreting section 68 F(1 C) only to mean that even though there are 7 vacancies and the Corporation applied for only 3 temporary permits, once the Corporation made an application for temporary permits not for the full strength but something short of it there was no power left in 985 the State Transport Authority to grant temporary permits to any one else.
Obviously section 68 F(1 C) does not admit of such a construction.
The State Transport Authority has power under sub section (1 C) to grant temporary permit to any person in respect of the area or the route or part thereof specified in the scheme.
The expression 'any person ' would comprehend any person even other than the Corporation.
One has to read section 68 F (1 A) and section 68 F (1 C) harmoniously.
If the Corporation applies for temporary permits undoubtedly the State Transport Authority cannot grant permit to any one else if the Corporation has applied for all the permits.
But section 68 F(1 C) clearly envisaged a situation where application for a temporary permit is not made under section 68 F(1 A) by the Corporation.
And there is felt need for providing transport service on the route in question.
Now it cannot be gain said that there were 7 vacancies for temporary permits because the strength was increased from 13 to 20.
The State Transport Authority is the proper authority lo decide the strength of vehicles to be plied on a route.
If the Corporation is willing to operate vehicles to the maximum strength undoubtedly the State Transport Authority will have to grant permit to the Corporation under section 68 F(1 A) to the exclusion of others.
But if the Corporation was unable to provide vehicles for the optimum strength fixed by the State Transport Authority the remaining permits will have to be granted to any other person willing Jo obtain temporary permit and ply vehicle because in respect of the remaining strength there would be no application by the Corporation and section 68 F(1 C) would be squarely attracted.
In interpreting the provisions of Chapter IV A of it is undoubtedly true that the Corporation enjoys a preferential treatment in the matter of obtaining permits.
The authority under the Act must not ever lose sight of the fact that the primary consideration must be the service available to the travelling public.
While interpreting the provisions of the undoubtedly the competing claims between the Corporation and the other private operators may be examined with reference to the provisions of the Act.
But the overall consideration namely the service is for the benefit of the travelling public should never be overlooked for a moment.
Reverting to the facts of this case if the approach of the High Court is accepted it would lead to a startling result.
Assuming there were 10 vacancies for temporary permits and the Corporation was able to provide only one vehicle and therefore applied for only one permit, according to the State Transport Appellate Tribunal as well as the High Court no temporary permit can be granted to any one else 986 for the remaining 9 vacancies.
Such is not the position emerging from a combined reading of section 68 F(1 A) and Section 68 F(1 C).
The correct approach would be that keeping in view the strength of the vehicles fixed by the competent authority, the authority should first examine the application for number of temporary permits made by the Corporation.
If the Corporation has made application for temporary permits covering all the vacancies the matter ends there.
But if the Corporation does not apply for all the permits but only for some, the inescapable conclusion is that for the remaining strength the Corporation has made no application for the temporary permits and section 68 F(1 C) would be squarely attracted.
In That event the State Transport Authority or the Regional Transport Authority as the case may be will have to examine the application for temporary permits made by persons other than the Corporation and if they are found to be competent, eligible and qualified they may have to be granted permits for the benefit of the large travelling public.
That is why power to increase strength of fleet operating on the route is conferred and has to be exercised in public interest meaning transport facility to travelling public.
In this case there were 7 vacancies for temporary permits.
The Corporation applied for only 3.
It was incumbent upon the State Transport Authority to consider the applications of the present appellants for the remaining 4 vacancies and grant four permits according to law.
Accordingly this appeal is allowed and the orders of the State Transport Authority, the State Transport Appellate Tribunal and the High Court are set aside and the matter is remitted to the State Transport Authority to consider the applications of the present appellants for the remaining 4 vacancies and pass orders according to law.
In the circumstances of this case, there will be no order as to costs.
S.R Appeal allowed.

summary/full:
Allowing the appeal by special leave, the Court ^ HELD: 1.
The combined reading of section 68 F (1 A) and section 68 F (1 C) makes it clear that keeping in view the strength of the vehicles filed in public interest by the competent authority under section 68 F (1 A), for the period intervening between the date of publication of the scheme and the date of publication of the approved or modified scheme, the authority should first examine the application for number of temporary permits made by the Corporation.
If the Corporation has made application for temporary permits covering all tho vacancies, the authority must grant permit to the Corporation to tho exclusion of any other applicant, as section 68 F(1) makes it obligatory upon the State Transport Authority or the Regional Transport Authority, as the case may be, to grant the same.
If the Corporation does not apply for all the permits but only for some, the inescapable conclusion will be that for tho remaining strength the Corporation has made no application for the temporary permits and section 68 F (1 C) of the Act squarely being attracted, the State Transport Authority or the Regional Transport Authority, as the case may be, will have to examine the application for temporary permits made by persons other than the Corporation and if they are found to be competent eligible and qualified they may have to be granted permits for the benefit of the largo travelling public.
That is why power to increase strength of fleet operating on the route is conferred under section 68 F (1 A) of the Act and has to be exercised in public interest meaning transport facility to travelling public.
In this case there were 7 vacancies for temporary permits.
The Corporation applied for only 3.
It was incumbent upon the State Transport Authority to consider the applications of the present appellants for the remaining four vacancies and grant four permits according to law.
[986A D] 2.
The expression "any person" in section 68 F (1 C) of the would comprehend any person to mean any one other than the Corporation.
[985A B]] Section 68 F (1 C) caters to such a situation where a scheme has been published and, therefore, the Corporation would be entitled to temporary permits till the approved scheme is published, yet if tho Corporation is unable to provide vehicles for the optimum strength fixed by the State Transport 982 Authority or the Regional Transport Authority, as the case may be, the concerned authority in exercise of power conferred specifically upon it by section 68 F (1 C) can grant temporary permits to persons other than the Corporation to operate vehicles on the route for which the scheme is published till modified or approved scheme is published.
[984C E] 3.
In interpreting the provisions of Chapter IV A of it is, undoubtedly, true that the Corporation enjoys a preferential treatment in the matter of obtaining permits the authority under the Act must not ever lose sight of the fact that the primary consideration must be the service available to the travelling public.
While interpreting the provision of the , undoubtedly, the competing claims between the Corporation and the other private operators may be examined with reference to the provisions of the Act.
But the overall consideration namely the service is for the benefit of the travelling public should never be overlooked for a moment.
[985F G]


judgement:
: Special Leave Petition (Crl.) No. 1620 of 1980.
From the Judgment and order dated 13 11 1979 of the Bombay High Court in Criminal Appeal No 1310 of 1979.
Pramod Swarup for the Petitioner.
M. C. Bhandare and M. N. Shroff for the Respondent.
The order of the Court was delivered by KRISHNA IYER J. We were not happy at the disposal by the High Court of a case under section 302 I.P.C. without a speaking order.
After all in so serious a crime as murder, where so severe a sentence as life imprisonment has been inflicted by the trial court and the appeal is as of right, the High Court must indicate in a reasoned judgment that it has applied its mind to the material questions of fact and law.
A judgment may be brief but not a blank, especially in a situation such as this.
For this reason we should have straightaway set aside the judgment of the High Court and sent it back for fresh hearing, but under Article 136 where justice is the paramount consideration we wanted to reduce the delay in the proceedings since there is a sentence of life imprisonment on the petitioner so we directed that the original record be sent for so that counsel on both sides may 1195 have the opportunity to peruse the entire case records and make submissions to us as if we were hearing the appeal in the regular course.
Counsel have had that facility and have made submissions after perusal of the materials.
After a brief hearing counsel for the petitioner was unable to demonstrate that the trial court 's judgment was vitiated by any flaw in appreciation of evidence or assessment of probabilities.
We, therefore, dismiss the Special Leave Petition after satisfying ourselves that natural justice has had its full play.
Dismissed.
P.B.R. Petition dismissed.

summary/full:
In so serious a crime as murder where so severe a sentence as life imprisonment has been inflicted by the trial court and the appeal is as of right, the High Court must indicate in a reasoned judgment that it has applied its mind to the material questions of fact and law.
A judgment may be brief but not a blank especially in a situation such as this.
[1194 F G]