judgement:
Civil Appeal No. 862 of 1968.
Appeal by special leave from the Judgment and order dated the 6th December, 1964 of the Punjab & Haryana High Court in Civil Writ No.587 of 1964.
G. L. Sanghi and Girish Chandra for the Appellants.
section N. Anand for the Respondents.
79 The Judgment of the Court was delivered by GUPTA, J.
This appeal by special leave arises out of a proceeding under the (hereinafter referred to as the Act).
The only question for determination in the appeal is whether the deletion of rule 30 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 (hereinafter referred to as the Rules) with effect from August .
13, 1963 made any difference to the rights of the parties concerned in this case.
The question arises on the following facts.
Shop No. 2 in Tripri township in Patiala which is a government built property was allotted in 1950 to the first respondent Khillu Ram jointly with one Tara Chand and his son by the Custodian of Evacuee Property.
In 1951 both Tara Chand and his son Left Tripri to settle elsewhere and the second respondent Teju Mal applied for allotment of their share in the shop to him.
By his order dated November 11, 1959 the Managing officer, Tripri and Rajpura, held that Teju Mal and Khillu Ram were in possession of the shop as allottees respectively of 2/3 and 1/3 shares therein.
Aggrieved by the order of the Managing officer, the first respondent Khillu Ram preferred an appeal to the Settlement officer, Jullundur, who by his order dated February 12, 1962 set aside the order of the Managing officer and remanded the case for a fresh decision under rule 30 of the Rules.
Rule 30 is in these terms: " Payment of compensation where an acquired evacuee property which is an allotable property is in occupation of more than one person.
If more persons than one holding verified claims are in occupation of any acquired evacuee property which is an allotable property, the property shall be offered to the person whose gross compensation is the biggest and the other persons may be allotted such other acquired evacuee property which is allotable as may be available :" This rule has a proviso and an explanation none of which is relevant for the present purpose.
After remand the case was transferred to the Assistant Settlement officer who found that the gross compensation payable to the first respondent was higher than that of the rival claimant, Teju Mal and in terms of rule 30 allotted the entire shop to the first respondent by his order dated November 27, 1962.
A revision petition against this order made by Teju Mal was dismissed by the Deputy Chief Settlement Officer on September 5, 1963.
In the meantime, as stated already, rule 30 had been abrogated with effect from August 13, 1963.
Teju Mal then moved the Central Government under sec.
33 of the Act.
Teju Mal 's application under sec.
33 was heard on February 25, 1964.
The effect of deletion of rule 30 was that the properties which were in the occupation of more than one person were to be put to sale.
The Joint Secretary to the Government of India who heard the application under sec.
33 held that the case should be governed by the Rules as amended in 1963 excluding rule 30, and accordingly by his order dated February 80 26, 1964 he set aside the order allotting the shop to the first respondent Khillu Ram and directed the property in question to be put to sale.
The first respondent filed a writ petition in the Punjab High Court for quashing the order passed under sec.
The Punjab High Court held that the subsequent deletion of rule 30 did not affect the existing rights of the first respondent and quashed the order of the Central Government made under sec.
The correctness of this ` order is challenged in the appeal before us which has been preferred by the Union of India and several other authorities concerned with the administration of the .
The only submission made by Mr. Sanghi appearing for the appellants is that rule 30 was a rule of procedure and its deletion in 1963 affected only the mode of proceeding by which the rival claims of Khillu Ram and Teju Mal was to be decided.
It was argued that amendment of the Rules in 1963 deleting rule 30 being procedural in character would affect the proceeding between the two respondents then pending, and their rights, it was submitted, should therefore be decided on the footing as if Rule 30 had never been in force.
We are unable to accept this submission.
The Act provides for the payment of compensation and rehabilitation grants to displaced persons and matters connected therewith.
Under the Act a displaced person has a right to get compensation in the form and manner prescribed by the Act and the Rules framed thereunder.
Rule 30 is in Chapter V of the Rules which deals with payment of compensation by transfer of acquired Evacuee Properties.
Though the shop in question is a government built property and not an acquired evacuee property, rule 43 in Chapter VI of the Rules which provides for payment of compensation by transfer of government built property says that the "pro visions of rules 25 to 34 shall, so far as may be, apply to the transfer of any Government built property or Government plot under this Chapter".
Rule 30 prescribes that where the property is in the occupation of more persons than one, it shall be offered to the person whose gross compensation is the highest.
Clearly rule 30 deals not with the form of procedure but with a substantive right conferred by the Act on displaced persons.
Mr. Sanghi described this rule as only a mode or manner of payment of compensation.
This may be so, but the form and manner in which compensation is payable is also part of the right to get compensation.
Rule 30 is not an instrument or machinery for asserting the right conferred by the Act; it does not regulate the procedure for settlement of disputes concerning that right.
Therefore, the deletion of the rule in 1963 cannot affect pending actions.
The rights of Khillu Ram and Teju Mal must be governed by rule 30 which was in force in 1959 when the dispute arose and was decided by the Managing officer.
A full Bench of the Punjab and Haryana High Court in Pt.
Dev Raj vs Union of India & ors.(1) considering the same question which arises for determination in this appeal, held that "a displaced person has a right to the determination of his claim for compensation and its satisfaction in the 1) A. I. R. 81 prescribed manner and this is a substantive right", that so far as rule 30 is concerned "the right which a displaced person claims under this rule . cannot be adversely affected or taken away unless it is expressly stated in the amending provision, or the language of the Act This, in our opinion, is a correct statement of the law.
Neither by express words nor by implication the amendment of the Rules in 1963 deleting rule 30 has been made retrospective in operation.
For these reasons the appeal fails and is dismissed but without any order as to costs.
V.P.S. Appeal dismissed.

summary/full:
Rule 30 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, prescribes that where property is in the occupation of more persons than one, it shall be offered to the person whose gross compensation is the highest.
A particular property was allotted under this rule to the first respondent.
A revision petition by the rival claimant, was dismissed ill September, 1963.
But on August 13, 1963, the rule had been abrogated.
The effect of the deletion was that a property in the occupation of more than one person was to be put to sale.
In an application under section 33 of the , by the rival claimant, the appellant held that the case should be governed by the rules as amended, that is, excluding r. 30, and set aside the order allotting the premises to the first respondent.
A writ petition filed by the first respondent in the High Court was allowed.
In appeal to this court, the appellant contended that the rule was one of procedure and its deletion affected only the mode of proceeding by which the rival claim was to be decided.
Dismissing the appeal, ^ HELD: The rights of the two rival claimants must be governed by r. 30 which was in force when the dispute arose and was decided by the authorities under the Act.
[80 G H].
(a) Rule 30 deals, not with form of procedure, but with the substantive right conferred by the Act on displaced persons.
The Act provides for the payment of compensation and rehabilitation grants to displaced persons and matters connected therewith.
Rule 30 is in Chapter V of the Rules which deals with payment of compensation by transfer of acquired evacuee properties.
Assuming that the rule is only a mode or manner of payment of compensation, the form and manner in which compensation is payable is also a part of the right to get compensation.
The rule is not an instrument of machinery for asserting a right conferred by the A t. it does not regulate the procedure for settlement of disputes concerning that right.
Therefore, the deletion of the rule in 1963 cannot affect pending actions, [80 D G].
(b) Neither by express words nor by implication the amendment of the rules in 1963 deleting r. 30 has been made retrospective in operation.
[81 A B].
Dev Raj vs Union of India & ors.
, A.I.R. 1974 Pun 65, approved.


judgement:
Civil Appeal No. 1257 of 1975.
Appeal by Special Leave from the Judgment and order dated the 5th May 1972 of the Allahabad High Court in Civil Misc.
Writ Petition No. 5546 of 1971.
M. Natesan and N. H. Hingorani, for the Appellant.
Govind Das and Girish Chandra, for the Respondents.
The Judgment of the Court were delivered by UNTWALIA, J.
The appellant in this appeal by special leave is a registered partnership firm and is carrying on business of manufacturing a number of milk products including Condensed Milk and Condensed Skimmed Milk.
By the Finance Act, 1969 item 1B was added to the First Schedule of The Central Excise and Salt Act, 1944.
hereinafter called the Excise Act, levying 10% ad valorem duty on "prepared or preserved foods put up in unit containers and ordinarily intended for sale including preparations of . milk . " In exercise of the powers of the Central Government under sub rule (1) of Rule 8 of the Central Excise Rules, 1944 and in supersession of the earlier notifications the Central Government issued Notification No. G.S.R. 339 dated the 1st March, 1970 exempting prepared or preserved foods falling under Item No. 1B of the first Schedule of the Excise Act other than those specified in the Schedule annexed to the notification from the whole of the duty of excise leviable thereon.
In the Schedule is mentioned as items 12 and 13: "12.
Milk powder but excluding such powder specially prepared for feeding of infants;" ""13.Condenced milk, whether sweetened or not;" Thus preparations of milk leviable to excise duty under the Excise Act became exempt from the levy of the duty.
But from that exemption were excluded certain milk preparations mentioned in items 12 and 13.
on and from the 1st March, 1970 the Excise authorities levied excise duty on condensed milk and condensed skimmed milk manufactured by the petitioner treating both of them as included in Item 13 of the Exemption Notification dated the 1st March, 1970.
For sometime the petitioner paid excise duty not only on condensed milk but also on condensed skimmed milk.
Later he objected to the payment of such duty on the latter product on the ground that condensed skimmed milk fell within the Exemption Notification and not within the excluded Item 13 of that notification.
The authorities did not accept his stand to be correct and issued two notices dated 4 8 1971 and 7 8 1971 demanding a sum of Rs. 1,048/ and Rs. 3.064/ respectively as duty payable on condensed skimmed milk manufactured by the petitioner during certain periods.
The petitioner filed a writ application in the Allahabad High Court to challenge the (demand of excise duty on condensed skimmed milk.
A Bench of the High Court took the view that condensed skimmed milk was also condensed milk covered by the excluded Item 13 of the Exemption Notification dated the 1 st March, 1970.
It, therefore, dismissed the writ application.
Hence this appeal.
95 It is well established by several authorities of this Court that for the purpose of levy of excise duty or any other similar tax the description of goods as popularly and commonly understood has to be taken as the description of the same goods in the relevant provisions of the Statute or the Rules.
In this case there are materials to show that condensed milk and condensed skimmed milk are two different items of milk preparations.
In common parlance milk means the full cream milk as milked from the cattle.
It becomes skimmed milk when cream i.e. fat is extracted from milk.
Thereafter the skimmed milk which also can be called a form of preparation of milk is known as such.
It becomes easy to digest and is used in preparation of other milk products, which are different from the milk products prepared from full cream milk.
In the Hand Book on Self Removal Procedure under The Central Excise Rules, 1944, 3rd edition published in June, 1972 by the Central Board of Excise and Customs is to be found Instruction 8(b) to say: "Every assessee is also required to maintain a daily account of important raw materials in Form IV (Annexure II) and also to submit a quarterly return in form RT5 (Annexure III) under Rule 55 of Central Excise Rules, 1944.
One or two important raw materials, which have been prescribed for most of the excisable goods under Self Re moval Procedure, are shown in Annexure IV.
The assessees may maintain daily account and submit quarterly RT5 return only in respect of these specified raw materials.
" In Annexure IV are to be found Items 13 and 14 respectively in these terms: "13.
Milk powder but excluding such powder specially pre pared for feeding of infants" ""14.
Condensed milk whether sweetened or not.
" In column 4, under the heading "names of important raw materials" against item No. 13 is mentioned "whole fresh milk/skimmed milk as the case may be" and against item 14 are found the words "fresh milk/and sugar".
It would be noticed that the description in Items 13 and 14 of Annexure IV. is identical to that of items 12 and 13 in the list of excluded items from the Exemption Notification.
Yet in item milk powder in Annexure IV as against the names of important raw materials, both "whole fresh milk" and "skimmed milk" are mentioned.
But as against condensed milk only "fresh milk" is mentioned.
Such a handling of the description of the milk products and preparations does indicate that the Central Government when it mentioned condensed milk in item 13 of the notification dated the 1st March, 1970 it meant to exclude from exemption only condensed milk of full cream milk and not the condensed skimmed milk prepared from skimmed milk.
The milk preparation condensed skimmed milk prepared from skimmed milk fell within the Exemption Notification and not within excluded item 13.
96 Some support, although a feeble one, can be lent to the above view with reference to Rule 42 of The Prevention of Food Adulteration Rules, 1955.
In clause (B) of the said Rules are mentioned the forms of label to be put on condensed milk and the four types of labels are: (1) Full Cream Milk (unsweetened) (2) Condensed Full Cream Milk (Sweetened) (3) Condensed Machine Skimmed Milk or Condensed Skimmed Milk (unsweetened) (4) Condensed Machine Skimmed Milk or Condensed Skimmed Milk (sweetened) " In Item 13 of the notification when the Government added the words "whether sweetened or not" it did mean to classify the condensed milk of sweetened or unsweetened variety but did not intend to include in item 13 condensed skimmed milk whether sweetened or unsweetened.
Learned counsel for the respondents pointed out that the petitioner had obtained a licence for manufacture of condensed milk only under he Excise Act.
It did not obtain a licence for manufacture of condensed skimmed milk.
Counsel, therefore, submitted that for the purpose of the levy of the excise duty both would be on the same footing.
Learned counsel for the appellant submitted in reply that if excise duty was not leviable on condensed skimmed milk then no licence was required for its manufacture.
The position of law seems to be this.
Under section 6 of the Excise Act no person can engage in the production or manufacture of any specified goods included in the First Schedule of the Act except under the authority and in accordance with the terms and conditions of a licence granted under the Act.
It will have been seen, therefore, that since skimmed milk or condensed skimmed milk will be a milk preparation within the meaning of item 1B of the First Schedule, a licence to manufacture such milk would be required.
If any goods specified in the First Schedule are exempted from the levy of excise duty by the Central Government in exercise of their power under Rule 8(1) of the Central Excise Rules that cannot affect the provision or taking licence for the manufacture of the said goods.
But in this case we are not concerned to find out whether the petitioner was manufacturing condensed skimmed milk without a licence and if so, whether it was committing any offence.
But even assuming that the petitioner had a manufacturing licence under section 6 of the Act only for manufacture of condensed milk that by itself will not take condensed skimmed milk out of the Exemption Notification and include it in the excluded item 13.
For the purpose of levy of excise duty therefore condensed skimmed milk remains included in the Exemption Notification.
Learned counsel also drew our attention to the form of price list of the petitioner showing separate prices for "Condensed milk (full 97 cream)" and "Condensed milk (Skimmed)". 'that again is of no help for the determination of the point at issue.
Unless and until skimmed milk is included in item 13 of the Exemption Notification of the 1st March 1970 it remains an item of goods exempted from levy of excise duty.
For the reasons stated above we allow this appeal, set aside the judgment and order of the High Court and direct the respondents B. not to enforce their demand of excise duty made in the two notices dated 4 8 1971 and 7 8 1971.
In the circumstances we shall make no order as to costs.
V.P.S. Appeal allowed.

dataset_name: IN-Abs

summary/full:
By virtue of a Notification dated March 1, 1970, issued by the Central Government under r. 8(1) of the Central Excise Rules.
1944, preparations of milk, leviable to excise duty under the Excise Act, 1944, became exempt from the levy.
but from that exemption were excluded certain milk preparations, namely, items 12 and l 3 of the Schedule annexed to the Notification.
They refer to 'milk powder, but excluding such powder specially prepared for feeding of infants '.
and 'condensed milk, whether sweetened or not ', respectively.
The appellant challenged the levy of excise duty on condensed skimmed milk, which he manufactured, on the ground, that it fell within the exemption Notification and not within item 13 of the excluded items.
The High Court dismissed the writ petition holding that condensed skimmed milk was also condensed milk.
Allowing the appeal to this Court, ^ HELD: (1) For the purpose of levy of excise duty or any other similar tax the description of goods as popularly and commonly understood has to be taken as the description of the same goods in the relevant provisions of the statute or the rules.
In common parlance milk means the full cream milk and it becomes skimmed milk when cream is extracted from it.
[95 A B].
(2) In the present case, there are materials to show that the Government itself treated 'Condensed milk ' and 'Condensed skimmed milk ' as different milk preparations, [95 H].
(a) In Annexure IV to the Hand Book of Self Removal Procedure under central Excise Rules, 1944, published in June 1972 by the Central Board of Excise, are items 13 and.
14 corresponding to items 12 and 13 of the Schedule to the exemption Notification.
Against each item certain important raw materials are mentioned of which the assessee has to maintain accounts.
Against milk powder, the raw materials shown are both fresh milk and skimmed milk, while, against condensed milk only fresh milk is mentioned.
[95 G H].
(b) Further, r. 42 of the Prevention of Food Adulteration Rules, 1955, prescribes various forms of labels to be put on tins of condensed milk and they also refer to condensed full cream milk and condensed skimmed milk separately.
[96, A D].
(3) The fact that the appellant had a manufacturing licence only for the manufacture of condensed milk while he was in fact manufacturing condensed skimmed milk will not take ' condensed skimmed milk out of the exemption notification and include it in the excluded item Under section 6 of the Act a licence would be required for the manufacture of condensed skimmed milk and the appellant by manufacturing condensed skimmed milk without a licence, may be committing an offence.
But, if condensed milk is exempt from the levy of excise duty by the Central Government in exercise of its power under r. 8(1), the exemption cannot be affected by the provision for taking a licence for its manufacture.
[96 F H].
(4) The fact that the appellant was showing separate prices in the list of prices for condensed milk (full cream) and condensed milk (skimmed) would not help in the determination of the question.
Unless and until skimmed milk is included in item 13 of the exemption Notification, it remains an item of goods exempt from the levy of excise duty.
[97 A Bl. 94


judgement:
Civil Appeal No. 1266 of 1975.
Appeal by special leave from the Judgment and order dated 3rd March, 1971 of the Madras High Court in Writ Petition No. 583 of 1971.
K. section Ramamurthi, A. T. M. Sampath and E. C. Agarwala, for the Appellant.
B. Sen and Vineet Kumar for Respondent No. 2.
The Judgment of the Court was delivered by KRISHNA IYER, J.
A single fundamental flaw in the order of the Appellate Tribunal (under the ), constrains us to allow this Appeal challenging the High Court 's refusal to interfere with the grant of the permit in favour of Respondent No. 2.
Many applicants for one permit for a "short route" pressed their claims before the Regional Transport Authority which evaluated the relevant merits and awarded the permit to Applicant No. 6, who is the Appellant before us.
On appeal, Applicant No. 3, who is respondent No. 2 before us, succeeded.
Whereupon a Writ Petition was filed without success and the disappointed appellant has come to this Court by special leave.
The system of marks, under the Rules framed under the Act by the Tamil Nadu Government, prescribes the various qualifications for applicants for permits for passenger transport under the , Rule 155 A crystallises these considerations and describes them as guiding principles for the grant of stage carriage permits.
The rule itself emphasizes what is obvious, that the paramount consideration of the interest of the public, as enshrined in Section 47 (1), must given full weight while awarding permits.
That means to say that the various factors set out in rule 155 A are subject to Section 47(1).
This is clarified by sub rule (4) of Rule 155 A, which runs thus: "After marks have been awarded under sub rule (3), the applicants shall be ranked according to the total marks obtained by them and the applications shall be disposed of in accordance with the provisions of sub section (1) of Section 47".
There is no doubt that bus transport is calculated to benefit the public and it is in the fitness of things that the interest of the travelling public is highlighted while evaluating the relevant worth of the various claimants.
There are two circumstances which require to be stressed because they have been overlooked by the appellate tribunal in its disposal of the comparative merits of the rival claimants.
Sub rule (5)(i) of Rule 155 A states that preference shall, other things being equal, be given in the disposal of applications in respect of short routes. .to persons who have not held any permit for a stage carriage.
Among the considerations which must weigh with the authorities entrusted with the power to grant permits, is business or technical experience in the 216 field of motor vehicles operation.
Rule 155 A in Item (D), sub rule (3) specifically states "two marks shall be awarded to the applicants who have business or technical experience in the road transport service as defined in clause (a) of Section 68 A of any class of transport vehicles for a period of ten years or more".
Having regard to the marking system as adumbrated in rule 155 A, a broad sheet was apparently prepared and the appellant before us (Applicant No. 6) secured 4 marks as against the second respondent (Applicant No. 3) who got 3.10 marks.
Ordinarily, therefore, the applicant who got higher marks should have won the battle.
Moreover, in a short route, as in this case, the rule contemplates preference being given to a new entrant, of course, other things being equal.
In this case, therefore, the appellant before us, being admittedly a new entrant, was entitled to preference, the route being a short one, other things being equal.
The short question that, therefore, fell before the Appellate Authority was as to whether other things were equal.
This aspect attracted the attention of the Appellate Authority, but its consideration unfortunately was unsatisfactory.
The Appellate Tribunal observed that though the Applicant No. 6 had secured higher marks than Applicant No. 3: "I am inclined, having regard to the public interest in the matter of passenger transport service, to agree with the appellant 's contention that the respondent 's experience as lorry operator cannot be equated with the appellant 's experience in bus operation.
" This view, according to him, is tenable under Section 47 (1) since this matter involves grant of bus permit.
"The fact that the appellants are bus operators, must necessarily over ride the fact of the respondent being a lorry operator.
Though the route in question is a short route and there is a new entrant like the respondent, the respondent cannot automatically be preferred in the absence of other things being equal, in accordance with clause 5(1) of Rule 155 A".
The error that has crept into the order of the Appellate Tribunal consists in thinking that the rules or guidelines could be discarded in the name of Section 47(1).
Actually, Rule 155 A is in implementation of Section 47(1), but is not exhaustive of all the considerations that will prevail in a given situation.
Therefore, it is that there is jurisdiction given to the Tribunal to take note of other considerations in public interest flowing out of Section 47(1).
Not that the sub rules of Rule 155 A can be discarded, but that they may be supplemented or outweighed.
Not that, in the name of public interest, something opposed to the sub rules of Rule 155 A can be done but that, within the combined framework of Section 47(1) and rule 155 A, there is scope for play of the jurisdiction of the Tribunal to promote public interest.
Viewed in this perspective the Appellate Tribunal has actually contravened Rule 155(3)(D).
That provision expressly accords two marks for applicants who have a certain experience in road transport service. 'Road transport service ' is defined in clause (a) of Section 68 A and this definition is specifically incorporated in Rule 155 A (3) (D).
It follows that the rule makes no distinction between the type of transport vehicle in which experience has been gained whether it be a passenger transport or a lorry transport.
The view taken by the appellate tribunal 217 that because the permit is for passenger transport, lorry service experience, even if it falls under Rule 155 A (3) (D), can be ignored, is therefore, illegal.
A relevant factor has thus been wrongly excluded.
Connected with the same flaw is what we have earlier indicated namely, that the Appellate Tribunal has held that the new entrant (Applicant No. 6) need not be given the preference he is eligible for under Rule 155 A (5) because other things are not equal.
According to him, other things not equal because Applicant No. 6 has lorry transport experience while Applicant No. 3 has bus transport experience.
We have already explained that this is a fallacy.
In this view, the preference that flows in favour of applicant No. 6 under Rule 155 A (5) should not have been denied to him for the reasons set out by the Tribunal.
For these reasons, the order of the Appellate Tribunal is liable to be quashed.
The well worn ground that mat material consideration, if ignored, makes the order vulnerable, applied.
Moreover, these is an apparent mis construction of the relevant rule by the Appellate Tribunal, as we have explained above.
This does not mean that this Court will award the permit to one party or the other.
That is the function of the statutory body created under the .
Moreover, as Mr. Sen, appearing for the second respondent, has rightly pointed out, his client had many other grounds to urge before the Appellate Tribunal to establish his superiority, which have not been adverted to by the Appellate Tribunal because on one ground he succeeded.
It is only fair, therefore, that the case is remanded to the Appellate Tribunal for being heard de novo wherein both sides (no other applicant will be heard), will be entitled to urge their respective claims, for the single permit that is available to be awarded.
The only point that remains to be decided is as to what is to happen for bus operation during the period the Appeal is to be heard and the further proceedings which may follow.
We direct that the second respondent be allowed to ply the bus as he is doing it now until disposal of the appeal by the Appellate Tribunal.
It is represented by Mr. Ramamurthy, appearing for the Appellant, that his client had been plying the bus on the route on and earlier occasion till the High Court dismissed the Writ Petition.
If there had been any period when both operators had been plying their buses on the route during the course of this litigation, especially at the time the Writ Petition was pending in the High Court, it will be open to the Appellate Tribunal to allow thee Appellant before us (Applicant No. 6) also to ply his bus on the same route.
With these directions, we allow the Appeal and direct the Appellate Tribunal to dispose of the motor vehicles Appeal No. 542 of 1970.
Parties will bear their own costs throughout.
P.H.P. case remanded.

summary/full:
Many applicants for one permit for a short route pressed their claims before the Regional Transport Authority under the .
The Transport Authority evaluated the relevant merits and awarded the permit to the appellant.
The system of marks under the Rules framed under the Act by the Tamil Nadu Government, prescribes various qualifications for applicants for permits for passenger transport under the Act.
The rule emphasises that the paramount consideration of the interest of the public as enshrined in section 47(1) must be given full weight while awarding permits.
One of the rules provides that preference shall, other things being equal, be given in respect of the routes to persons who have not held any permit for stage carriage.
One of the considerations which must weigh with the authorities is the business of technical experience in the field of motor operation.
The appellant secured 4 marks as against 3.1 marks secured by respondent No. 1.
In addition, the appellant was entitled to a preference for being a new entrant since the route was a short one.
The Appellate Tribunal reversed the order of the Transport Authorities and granted the permit to respondent No. 2 and set aside the permit granted in favour of the appellant on the ground of public interest in the matter of passenger transport service and held that the appellant 's experience as lorry operator cannot be equated with respondent No. 2 's experience in Bus operation.
This view was taken by the Tribunal following section 47(1).
The appellant filed a Writ Petition in the High Court which was rejected.
On appeal by Special Leave, ^ HELD: (1) The rules or guidelines could not be discarded in the name of section 47(1).
The Rules made are really in implementation of section 47(1) but is not exhaustive of all the considerations that would prevail in a given situation.
The jurisdiction is given to the Tribunal to take note of other considerations in public interest flowing out of section 47(1).
The Rules, are, however, not to be discarded but they can be supplemented or outweighed.
In the name of public interest something opposed to the Rules cannot be done.
The Appellate Tribunal has actually contravened rule 155(3) which accords 2 marks for applicants who have a certain experience in road transport service.
Road Transport Service is defined by section 68A(a) and it makes no distinction between the type of transport vehicles in which experience has been gained whether it be of passenger transport or a lorry transport.
The distinction made between passenger transport and lorry service experience by the Tribunal is illegal.
A relevant factor has thus been wrongly excluded.
The order of the Appellate Tribunal is liable to be quashed on the well worn ground that material consideration if ignored makes the order vulnerable.
More over, there is an apparent mis construction of the relevant rule.
The respondent No. 1 stated that there were many other grounds which he could have urged before the Tribunal but which have not been adverted to by the Tribunal because he could have urged before the Tribunal but which have not been adverted to by the Tribunal because respondent No. 2 succeeded on one ground.
It is, therefore, fair that the case should be remanded to the Appellate Tribunal for being heard de novo.
[216 E H, 217A E] 215


judgement:
Civil Appeal No. 852 of 1968.
Appeal by Special Leave from the Judgment and Order dated the 9th August, 1967 of the Punjab & Haryana High Court in L.P. A. No. 199/67.
Naunit Lal and R. N. Sachthey for the Appellants.
Madan Bhatia for Respondent.
The Judgment of the Court was delivered by GUPTA, J.
The respondent Jiwan Singh who is a displaced person from Pakistan was allotted 55.80 standard acres of land in village Neza Dali Kalan in Sirsa Tehsil of Hissar District in lieu of the land left by 211 him in Pakistan.
The second appellant, Collector Surplus Area, Sirsa, in determining the surplus area under the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the Act) left only 100 ordinary acres with the respondent as his permissible area and declared the rest of the land measuring 78.57 ordinary acres, equivalent to 25.99 standard acres, as surplus.
Permissible Area as defined in sec.
2(3) of the Act is as follows: "Permissible area" in relation to a land owner or a tenant, means thirty standard acres and where such thirty standard acres on being converted into ordinary acres exceed sixty acres, such sixty acres: Provided that (i) no area under an orchard at the commencement of this Act, shall be taken into account in computing the permissible area: (ii) for a displaced person (a) who has been allotted land in excess of fifty standard acres, the permissible area shall be fifty standard acres or one hundred ordinary acres, as the case may be.
(b) who has been allotted land in excess of thirty standard acres, but less than fifty standard acres, the permissible area shall be equal to his allotted area.
(c) who has been allotted land less than thirty standard acres, the permissible area shall be thirty standard acres, including any other land or part thereof, if any, that he owns in addition.
" There is an explanation to this definition which is not relevant for the present purpose.
Surplus Area would be the area in excess of the permissible area.
According to the respondent the surplus area in his case cannot exceed 5.80 standard acres in view of the proviso (ii) (a) to sec.
2(3), and being aggrieved by the order of the Collector preferred an appeal to the Commissioner.
The Commissioner remanded the case to the Collector for a fresh determination of the respondent 's surplus area observing that in the case of a displaced person if the allotment was in standard acres, 50 standard acres would be the permissible area and if the allotment was in ordinary acres the permissible area would be 100 ordinary acres.
On remand the Collector upheld his own previous order and the appeal taken by the respondent from this order was dismissed by the Commissioner.
The respondent filed a revision petition before the Financial Commissioner, Punjab, who also upheld the order of the Collector and dismissed the petition.
The respondent thereafter filed a writ petition in Punjab and Haryana High Court which was allowed.
The learned Judge who heard the writ petition held following a full Bench decision of the same High Court, Khan Chand vs State of Punjab, (1) that it was "not legitimate for the authority to treat as surplus 212 area anything more than 5.80 standard acres of the petitioner 's land".
The Letters Patent appeal preferred against the decision of the learned single Judge by the State of Haryana and the Collector Surplus Area, Sirsa, was dismissed.
The correctness of the High Court 's decision is challenged before us in this appeal by special leave.
The case turns on the true meaning of proviso (ii) (a) to sec.
Counsel for the appellants submits that this provision means that the permissible area in the case of displaced persons who were allotted land in excess of 50 standard acres can be determined either in terms of standard acres or in terms of ordinary acres, as the authority concerned chooses.
Counsel contends that the words "as the case may be" refer to the discretion of the authority in this matter.
We do not find it possible to accept this contention.
There is no specific provision in the Act giving a discretion to the Collector or any other authority under the Act to determine the permissible area for a displaced person was in standard acres or in ordinary acres.
On a plain reading proviso (ii) (a) seems to indicate that where the land allotted to a displaced person was in standard acres and its area exceeded 50 standard acres, the permissible area would be 50 standard acres, and where the land was allotted not in standard acres the permissible area would be 100 ordinary acres.
The nature of the original allotment whether it was in standard acres or in ordinary acres seems to be the determining factor.
The Full Bench decision of the Punjab and Haryana High Court, Khan Chand vs State of Punjab (supra), on which the Judgment under appeal relies, reads proviso (ii) (a) to mean: "For a displaced person who has been allotted land in excess of 50 standard acres or in excess of 100 ordinary acres the permissible area shall be 50 standard acres or 100 ordinary acres, as the case may be.
" We agree that this is the correct meaning to be given to this provisions; it is only construed this way that the words "as the case may be" acquire a significance, otherwise they would be mere surplusage.
Clauses (b) and (c) of proviso (ii) lend assurance to this construction.
Clauses (b) deals with the case of a displaced person who has been allotted land in excess of thirty standard acres but less than fifty standard acres and provides that the permissible and in his case shall be equal to his allotted area.
Clause (c) fixes the permissible area for a displaced person who has been allotted land less than thirty standard acres providing that it shall be thirty standard acres including any other land or part thereof, if any, that he owns in addition.
Clauses (b) and (c) both deal with cases where the original allotment was in standard acres, and there is nothing in either of them sanctioning the conversion of the permissible area in standard acres into ordinary acres, though perhaps any other land which a displaced person whose case in covered by clause (c) might own in addition to the 30 standard acres allotted to him may be in ordinary acres requiring conversion of such land into standard acres to determine the permissible area in standard acres in his case as provided in clause (c).
But this does not mean that the permissible area in cases covered by clauses (b) and (c) can also be fixed 213 in ordinary acres.
Proviso (ii) to sec.
2(3) appears to group displaced persons into two categories, those who were allotted land in standard acres and those whose allotment was in ordinary acres.
Clause (a) deals with both these categories and limits the permissible area of those who were allotted land in standard acres at 50 standard acres and those who were allotted land in ordinary acres at 100 ordinary acres; clauses (b) and (c) deal only with those who were allotted land in standard acres.
Those whose allotment was in ordinary acres, their permissible area is fixed at 100 such acres, but those who were allotted land in standard acres, in their case the permissible area varies as provided in clauses (a), (b) and (c) though the measure in each case would be in standard acres.
This appears to be the scheme.
In defining "Permissible area" sec.
2(3) of the Act provides differently for land owners and tenants covered by the substantive part of the definition, and displaced persons mentioned in proviso (ii), and also makes a distinction between displaced persons inter se as provided in the different clauses of the proviso.
In the course of argument questions were raised about the logical basis for such differentiation, but the policy of the Act being clear we have to interpret the provision as we find it; if there is any anomaly in the policy itself, it is for the legislature to remove that defect.
In this case the land allotted to the respondent being admittedly 55.80 standard acres, the permissible area for him would be 50 standard acres under clause (a) and that being so, the High Court was right in holding that it was not legitimate for the authority to treat as surplus area anything more than 5.80 standard acres.
The appeal is accordingly dismissed but in the circumstances of the case without any order as to costs.
S.R. Appeal dismissed.

summary/full:
The respondent, a displaced person from Pakistan was allotted 55 80 Standard Acres of land in lieu of the land left by him in Pakistan.
While determining the surplus area, the appellant State interpreting the phrase "as the case may be" in proviso (ii)(a) to Section 2(3) of the Punjab Security of Land Tenures Act, 1953, left with the respondent 100 ordinary acres equivalent to 29.81 Standard Acres and treated 25.99 standard acres equivalent to 78.57 ordinary acres as surplus.
The respondent preferred an appeal contending that the surplus should be 5.80 standard acres on a true interpretation of the proviso, which failed.
The revision before the Financial Commissioner met with the same fate.
The contention of the respondent was upheld by the High Court while allowing the Writ Petition filed by him.
The Letters Patent Appeal filed by the State was dismissed.
On an appeal by special leave, the Court, while dismissing it, ^ HELD: (i) The contention that the words "as the case may be" in proviso (ii)(a) to section 2(3), gives a discretion to the authorities to determine the permissible area either in standard or in ordinary acres is not correct.
[212 B C] (ii) On a plain reading, proviso (ii)(a) indicates that where the land allotted to a displaced person was in standard acres and its area exceeded 50 standard acres, the permissible area would be 50 standard acres, and where the land was allotted not in standard acres, the permissible area would be 100 ordinary acres.
The nature of the original allotment whether it was in standard acres or in ordinary acres is the determinating factor.
[212 C D] (iii) The meaning given to proviso (ii)(a) by the Full Bench of the Punjab & Haryana High Court, in Khan Chand vs State of Punjab A.I.R. 1966 Punjab 423, is correct It is only construed this way that the words "as the case may be" acquire a significance, otherwise they would be mere surplusage.
[212 D E] Khan Chand vs State of Punjab, A.I.R. 1966 Punjab 423, approved.


judgement:
ivil Appeals Nos.
518 to 530 of 1970.
Appeals by Special Leave from the Judgment and order dated the 21st May, 1969 of the Punjab and Haryana High Court in L.P.As.
Nos. 286, 327, 340, 368, 374, 375, 376, 377, 378, 379, 380, 502 and 511 of 1968.
O.P. Sharma (In all appeals) V. C. Mahajan (In C.A. 518) Kapil Sibal (In C.As. 529 530) and N. section Das Bahl (In C. A. 519 528 for the Appellants.
M. N. Phadke, Mrs. Archana Kumar, M. R. Agnihotri and P. C. Bhartari for Respondents in C.A. 526.
K. P. Bhandari (In CA 521) M. R. Agnihotri (In CA 522) K.J.John (in Cas.
524, 527 and 528), and P. C. Bhartari (In all appeals) for the Respondents.
section K. Mehta, K. R. Nagaraja, M. Qamaruddin, P. N. Puri and K. L. Mehta for Respondents (In CA. 530).
The Judgment of the Court was delivered by UNTWALIA, J.
In these 13 appeals by special leave the appellants are (1) the State of Punjab, (2) Union of India.
Respondent No. 1 in Civil Appeal No. 519 of 1970 and the sole respondent in each of the remaining 12 appeals are the concerned Government servants.
The said 13 Government servants alongwith two more filed 15 writ petitions to challenge order dated the October 28, 1966 made by the Government of the erstwhile undivided State of Punjab.
Their writ applications were allowed by a learned single Judge of the High Court of Punjab and Haryana at Chandigarh.
15 Letters Patent Appeals were filed by the appellants.
They have been dismissed by a 118 Division Bench of the High Court.
13 appeals have been brought to this Court and not the other two.
Since the Division Bench of High Court has disposed of all the 15 Letters Patent appeals by a common judgment, to avoid confusion in the statement of facts we think it better to state in a chart form the number of the Civil Appeal the corresponding number of the L.P.A. and the name of the Government servant concerned.
Civil Appeals of 1970 L. P. As of Names of the Govt.
servants 1968 518 . . . . 286 Balbir Singh 519 . . . 327 Bhagwan Singh 520 . . . 340 Surmukh Singh 521 . . .
368 Dasaundi Ram 522 . . . 374 Jagdish Singh 523 . . . 375 R. R. Bhanot 524 . . . 376 Surat Singh 525 . . . 377 Shamsher Singh 526 . . . 378 Bakhatawar Singh 527 . . . 379 Jodh Singh 528. . . .380
Kartar Singh 529. . . .502
Gurcharan Singh 530 . . . 511 Gurbux Singh nil . . . 289 Devdutta nil . . . 328 Sushil Kumar Khallar At the outset it may be stated that the respondent in Civil Appeal No. 521 Dasaundi Ram is dead and that appeal has abated on that account.
Bhagwan Singh, respondent in Civil Appeal No. 519 does not seem to be in service any longer and no body has appeared in this Court on his behalf.
Out of the remaining 11 respondents, we were informed at the Bar, that the 7 respondents in Civil Appeals 522 to 527 and 529 have since retired from service.
Only 4 of the respondents in Civil Appeals 518, 520, 528 and 530 are still in service.
Respondents Balbir Singh, Surmukh Singh, Dasaundi Ram, Jagdish Singh, Surat Singh, Kartar Singh and Gurbux Singh were promoted and appointed on officiating basis as Sub Divisional Officers in the Punjab Public Works Department (Buildings and Roads Branch) on various dates between 30 7 1960 to 10 5 1963.
Respondents R. R. Bhanot, Jodh Singh and Gurcharan Singh were so appointed between dates 17 12 1957 and 10 12 1959.
Respondents Shamsher Singh and Bhakhtawar Singh were promoted on 22 10 1956 and 1 3 1956 respectively.
Respondent Kartar Singh was working as planning Assistant cum Draftsman while the other respondents were Overseers before they were appointed as officiating Sub Divisional Officers.
By the impugned order dated October 28, 1966 the then Government of the erstwhile Punjab State reverted them to their original rank.
The orders of their reversion were challenged by the said respondents on the ground that they were governed by the Punjab Service of Engineers, Buildings and Roads Branch (Recruitment and Conditions of Service) Rules, 1942 (for brevity, the 1942 Rules).
They claimed that they 119 had become automatically confirmed as members of the service under the said Rules and could not be reverted without complying with the provisions of Article 311(2) of the Constitution of India and the other statutory Rules relating to disciplinary matters.
This was the only point which succeeded before the learned single Judge and he allowed all the writ applications, it appears, without fully appreciating, the distinction of facts of the various cases for the acceptance of this ground.
Respondent Bhagwan Singh was appointed as temporary Assistant Engineer on completion of his six months training period with effect from December 3, 1960.
His service was terminated by the then Punjab Government by order dated October 28, 1966 on the ground of his having been found unsuitable for appointment to P.S.E. Class II (B & R Branch).
Bhagwan Singh also relied upon 1942 Rules before the learned single Judge and succeeded.
The Division Bench has very carefully and elaborately considered the application of the 1942 Rules to the cases of the respondents.
It has disagreed with the single Judge 's view.
After copiously quoting from the 1942 Rules, the High Court in appeal has referred to the Punjab Service of Engineers Class I P.W.D. (Buildings and Roads Branch) Rules 1960 (for brevity, the 1960 Rules) regulating the recruitment and conditions of service of persons appointed to the P.S.E. Class I service.
The 1960 Rules came into force on and from March 18, 1960.
It had repealed the 1942 Rules by Rule 24 with a saving clause in the proviso appended thereto.
The High Court then referred to the Punjab Service of Engineers, Class II P.W.D. (Buildings and Roads Branch) Rules, 1965 (for brevity, Class II 1965 Rules).
The said Rules came into force from February 19, 1965.
The stand on behalf of the State of Punjab in the High Court was : (1) that the 1942 Rules did not govern the cases of the respondents as the said Rules applied to class I service consisting of Assistant Executive Engineers and officers of higher ranks only; (2) that the respondents had to be taken in P.S.E. Class II service in accordance with Rule 6(5) (b) of Class II 1965 Rules read with paragraph 1 (d) of Appendix 'G ' of the said Rules, in consultation with the Punjab Public Service Commission; (3) that since the Commission did not find them suitable for being admitted to that service, they were reverted to their substantive rank in accordance with the terms and conditions of their service and not by way of punishment.
The High Court made a comparative study of 1942 Rules, 1960 Rules and Class II 1965 Rules and came to the conclusion that the officiating Sub Divisional officers, as the respondents were, not being Assistant Executive Engineers, were not governed by the 1942 Rules.
None of them had claimed that he was holding the rank of Assistant Executive Engineer in any capacity.
The view of the learned single Judge that the Sub Divisional Engineers were included in the category of Assistant Executive Engineers did not find favour with the Bench.
The Bench further pointed out that the respondents should be divided into three categories: (a) those who were promoted subsequently to the 9 L1276SCI/75 120 repeal of the 1942 Rules, (b) those who were promoted with him three years preceding such repeal and (c) those who were promoted more than three years prior to such repeal.
The respondents promoted on dates between 30.7.1960 and 10.5.1963 fell within the first category.
Obviously they could not claim the protection on the basis of 1942 Rules.
The three respondents who were appointed as officiating Sub Divisional officers between 17 12 1957 and 10 12 1959 fell within the second category.
The High Court rightly held that they had not completed the maximum period of three years probation to acquire the substantive posts of Sub Divisional officers fixed under Rule 12(3) of 1942 Rules, even assuming that they could take advantage of the same.
Respondents Shamsher Singh and Bakhatawar Singh had been promoted in the year 1956 and fell within the third category.
The Division Bench pointed out that in their case the difficulty in the application of the 1942 Rules was that they were promoted in the erstwhile Patiala and East Punjab States Union.
It could not be shown that there were any statutory Rules governing their conditions of service and appointments as Sub Divisional Officers.
Since on the date of the impugned order dated 28.10.1966 they had put in more than 10 years of service as officiating Sub Divisional officers, their case was considered to be a hard one.
But for the purpose of the law they could not be given the advantage of the 1942 Rules and obviously so.
It is plain that the case of none of the respondents was covered by the 1942 Rules.
All the respondents had to be absorbed and admitted to P.S.E. Class II service in accordance with Class II 1965 Rules and that required the approval of the Public Service Commission.
Since Commission did not find them suitable, they had to be reverted to their substantive ranks.
On a consideration of a large number of authorities the High Court has rightly come to the conclusion that their reversion was not hit.
On account of the non compliance with the provisions of Article 311(2) of the Constitution or any Rules governing the disciplinary action.
The reversion was not by way of punishment.
This aspect of the matter is now squarely covered by the decision of this Court in Shamsher Singh & Anr.
vs State of Punjab(1) (vide page 837).
A few new points were urged on behalf of the respondents in the Letters Patent appeals.
They were not allowed to be raised except the one which eventually succeeded and the Letters Patent appeals were allowed on the basis of that point.
The decision of the High Court as respects the application of the 1942 Rules to the cases of the respondents and the order of reversion not being hit by the alleged non compliance with Article 311(2) of the Constitution could not be seriously challenged before us.
We agree with the view expressed by the Division Bench.
It is not necessary to repeat all that has been said by the High Court in that regard.
We now proceed to consider the only substantial question which falls for determination in these appeals.
(1) ; 121 The erstwhile State of Punjab was re organized by the , Central Act XXXI of 1966, hereinafter called he Act.
On the appointed day i.e. On 1 11 1966 the former State of Punjab ceased to exist and the successor States of Punjab, Haryana, Union Territory of Chandigarh and the Transferred Territory came into being.
All the respondents except respondent Bhagwan Singh came to be allocated to the new State of Punjab.
Bhagwan Singh was allocated to Haryana and then to Himachal Pradesh.
The High Court took the view that the impugned orders were communicated to the respondents concerned on or after 1.11.1966 and hence they "remained ineffective and still born by reason of their not having been communicated to the respondents before 1.11.1966.
" Though this point had been taken in the writ petitions, it does not seem to have been pressed before the learned single Judge.
The Division Bench treating it as a pure question of law allowed it to be raised in the Letters Patent appeals and ultimately dismissed the appeals by holding in favour of the appellants that since the impugned orders were communicated to them after coming into force of the new successor States they could not affect their status and position which they held on 1.11.1966.
The factual position in relation to the point at issue is like this.
The erstwhile State of Punjab was under the President 's Rule before its re organization.
The order in the name of the President of India .
authenticated by Secretary to Government of Punjab, P.W.D. B&R/ P.H. Branches recited "The President of India, in consultation with the Punjab Public Service Commission, does not consider the following officiating Sub Divisional officers of Punjab, P.W.D. B & R Branch, suitable for appointment to P.S.E. Class II (B & R Branch) and accordingly they are reverted as indicated below with immediate effect.
" The list contains the names of 20 officers including the 'names of 12 respondents other than respondent Bhagwan Singh.
An Issue Book was shown to us at the time of the hearing of these appeals by the State counsel indicating that the Government order aforesaid was forwarded to the Accountant General Punjab, Simla and to the Chief Engineer Punjab P.W.D. & R Branch, Patiala, for information and necessary action.
The Chief Engineer as it appears from the statement in the counters filed on behalf of the State communicated the order to the officers concerned as per his Memo No. 8E/47/Re org/11670 710 dated 30.10.1966.
The respondents, however, seem to have received the orders on or after 1.11.1966.
The question for consideration is whether the view of the High Court that the orders being administrative in nature were not laws within the meaning of the Act and hence were not saved by section 88 is correct and whether r ' they remained ineffective and inoperative because they not communicated to the respondents before 1.11.1966.
Under the Act certain territories were carved out from the appoint ed day from the then existing State of Punjab.
Under sections 3 and 4 were formed the State of Haryana and the Union Territory of Chandigarh.
The territories mentioned in section 5 were added to the then Union territory of Himachal Pradesh.
The balance was to 122 remain in the State of Punjab under section 6.
Sections 3 to 6 occur in Part II of the Act.
Part III deals with the representation in the Legislatures and allocation of sitting members etc.
Part IV concerns the making of the existing High Court as the common High Court for Punjab, Haryana and Chandigarh.
Part V is headed "Authorisation of Expenditure and Distribution of Revenue.
" Part VI deals with 'Apportionment of Assets and Liabilities.
" Part VII makes provisions as to certain Corporations.
Part VIII relates to Bhakra Nangal and Beas Projects.
We are concerned with some of the sections of Part IX headed Provisions as to services and Part X making Legal and miscellaneous provisions.
Section 81 in Part IX contains provisions relating to All India Services.
Section 82 (1) is important and reads as follows: "Every person who immediately before the appointed day is serving in connection with the affairs of the existing State of Punjab shall, on and from that day, provisionally continue to serve in connection with the affairs of the State of Punjab unless he is required, by general or special order of the Central Government, to serve provisionally in connection with the affairs of any other successor State." According to the provision aforesaid all the respondents provisionally continued to serve in connection with the affairs of the State of Punjab and eventually also all of them (except Bhagwan Singh) continued to serve with that State.
We shall now read section 83 on which great reliance was placed on behalf of the respondents: "Every person who immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the existing State of Punjab ill any area which on that day falls within any of the successor States shall continue to hold the same post or office in that successor State and shall be deemed, on and from that day, to have been duly appointed to the post or office by the Government of, or other appropriate authority in, that successor State: Provided that nothing in this section shall be deemed to prevent a competent authority on or after the appointed day from passing in relation to such person any order affecting his continuance in such post or office.
" Section 88 occurring in Part X provides: "The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Punjab shall, unless otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day.
" 123 Law is defined in clause (g) of section 2 of the Act to say: "law" includes any enactment, ordinance, regulation, order, bye law, rule, scheme, notification or other instrument having, immediately before the appointed day, the force of law in the Whole or in any part of the existing State of Punjab; We agree with the High Court that the impugned orders in question were not law within the meaning of section 2(g) and hence were, in terms, not saved by section 88.
We think the High Court is right when it says: "Section 88 appears to have been introduced as a matter of abundant caution.
In my opinion, mere splitting up of the territories of Punjab into four successor States would not ipso facto result in the abrogation or repeal of the laws which were immediately in force before the appointed day in those territories.
There is nothing in the 1966 Act, not l even in Section 88, which expressly or by necessary intendment repeals the law which were in force immediately be fore the appointed day in the territories of the former Punjab.
Those laws derived their force de hors the 1966 Act.
The first part of Section 88 is merely clarificatory of any doubts which might arise as a result of the reorganisation of Punjab, while the latter part of this section is merely an adaptative provision, to the effect, that the territorial references in any such law to the State of Punjab shall continue to mean the territories within that State immediately before the appointed day.
Thus, read as a whole Section 88 merly dispels doubts as to the continuity of the laws which .
were in force before the appointed day in the former State of Punjab, until the competent legislature or authority of the successor States effects any change in those laws.
" If this could be the position in the continuance of the law in the successor States, on what principles one can say that the administrative order made by the erstwhile State of Punjab automatically lapsed and came to an end on and from the appointed day on the coming into existence of the successor States.
Is it possible to take the view that the Legislature when it made so many provisions in the Act in its various parts in regard to the matters already referred to, did not think it appropriate to make a provision for the continuance of the effect of the administrative orders passed by the Government of the erstwhile State of Punjab until the Governments of the successor States modified or changed it ? or, is it? as a matter of law and propriety, reasonable to think that the Legislature did not consider it necessary at all to make such an express provision, as the continuance of the effect of such orders was to obvious even without such a provision ? In our Judgment when there is no change of sovereignty and it is merely an adjustment of territories by the reorganization of a particular State, The administrative orders made by the Government of the erstwhile 124 State continue to be in force and effective and binding on the successor States until and unless they are modified, changed or repudiated by the Governments of the successor States.
No other view is possible to be taken.
The other view will merely bring about chaos ill the administration of the new States.
We find no principle in support of the stand that administrative orders made by the Government r of the erstwhile State automatically lapsed and were rendered ineffective on the coming into existence of the new successor States.
On behalf of the respondents reliance was placed upon the decision of this Court in Rajvi Amar Singh vs The State of Rajasthan(1) and ' Rajkumar Narsingh Pratap Singh Deo vs State of Orissa and another(2) Bose, J. delivering the judgment of the Court in the former ease had: said at page 1018: "Now it is well established that when one State if absorb ed in another, whether by accession, conquest, merger or integration, all contracts of service between the prior Government and its servants automatically terminate and thereafter those who elect to serve in the new State and are taken on by it, serve on such terms and conditions as the new State may choose to impose.
This is nothing more, (though on a more exalted scale), than an application of the principle that underlines the law of Master and Servant when there is a change of masters." The said principle is not applicable to the case on hand as it is not a case of absorption of one State in another by accession, conquest merger or integration.
It would be chaotic in this principle were to be applied to the case of re organization of States in the same country.
In the case of Raj Kumar N. P. Singh Deo (supra) a question arose as to whether the sanad granted by the ruler of Dhenkanal who was an absolute monarch and which State after independence of India came to be merged in the State of Orissa was a purely executive act or a law within the meaning of Article 372 of the Constitutional.
This Court decided that this was purely an executive act.
The Orissa Government had discontinued the payment of the allowance under the sanad to the grantee.
The action was upheld on the ground that the executive act of the ruler of another sovereign State could not be binding on the Orissa Government and that Government had full authority to discontinue the payment of the allowance.
Indirectly the said decision of this Court supports the view which we have ex pressed above.
We are, therefore, of the opinion that the impugned orders passed by the Government of the erstwhile State of Punjab continued to be the orders of the Governments of the concerned successor States until and unless they were modified, changed or repudiated by them Nothing of the kind was done by the new State of Punjab; rather, by treating that order as valid and adopting it as its own, the new State of Punjab resisted the writ applications and pursued the matter in the Letters Patent appeals and up to this Court in these appeals.
(1) (2) ; ; 125 On the facts and in the circumstances of these cases we do not agree with the High Court that the communication of the orders was on or after 1 11 1966 when they were actually received by the officers concerned.
Following the ratio of the decision of a Bench of 4 Judges of this Court, in the case of State of Punjab vs Khemi Ram(1) we hold that the orders were communicated either on 29 10 1966 or surely on 30 10 1966.
The earlier decisions of this Court have been considered by Shelat, J. in the decision aforesaid.
In Bachillar Singh vs The State of Punjab(2) no formal order of the Government had even been drawn up, much less communicated, and, therefore, it was held that it was neither an order of the Government nor was the order communicated.
What is the meaning of communication of the order in a given case did not fall for decision before this Court in the case of Bachittar Singh.
In the case of State of Punjab vs Amar Singh Harika(3) the order of dismissal passed on 3rd June, 1949 was actually communicated to the officer concerned on 2/3rd January, 1953.
But before the said date the said officer had come to know on 28th May 1951 about the dismissal order.
This date was taken to be the date of communication.
Shelat, J. has considered the earlier cases of this Court including the one in S '.
Pratap Singh vs The State of Punjab(4) a paragraph 16 of the judgment the law laid down is: "lt will be seen that in all the decisions cited before us it was the communication of the impugned order which was held to be essential and not its actual receipt by the officer concerned and such communication was held to be necessary because till the order is issued and actually sent out to the person concerned the authority making such order would be in a position to change its mind and modify it if it thought fit.
But once such an order is sent out, it goes out of the control of such an authority, and therefore there would be no chance whatsoever of its changing its mind or modifying it.
In our view, once an order is issued and it is sent out to the concerned government servant, it must be held to have been communicated to him, no matter when he actually received it." Applying the principle of law aforesaid we find in this case that the orders went out of the control of the authority which had passed that order on 29 10 1966 when copies of the orders were forwarded to the Accountant General and the Chief Engineer.
In any event, we think that the orders were despatched from the office of the Chief Engineer on 3 10 1966.
It is one thing to say that in the case of dismissal or the like the order becomes effective only after it is received by the officer concerned and a different thing to say that an order has no effect at all before it is communicated in the sense of receipt of the order by the concerned officer.
In the sense we have said above the (1) A. I. R. (2) [1962] 3 Suppl.
section C. R. 713.
(3) A. I. R. (4) ; 126 orders were communicated to all the respondents before 1 11 1966.
They became effective as soon as they were sent out.
And for the purposes of section 83 of the Act the respondents must be deemed to be holding the posts to which they were reverted on 1 11 1966.
Reliance was placed on behalf of the respondents upon the decision of a learned single Judge of the Punjab & Haryana High Court in the case of Shil Saran Dass Sood vs The State of Punjab and others(1) wherein it was held that there is no provision in the Act where under the proceedings for disciplinary action against a public servant, who is allotted to a State other than one in which the proceedings are pending, could be continued by the Inquiry officer already appointed nor could such Inquiry officer submit his report to the corresponding authority in the State to which the public servant is allocated.
We wish to point out that the proposition of law enunciated in such a bald manner is not correct.
The Inquiry officer may not be competent to continue the enquiry and submit the report for different reasons.
But it is not correct to say that: "the Inquiry officer appointed by the Commissioner, Ambala Division, prior to the re organisation of the State, cannot be taken to be the Inquiry officer appointed by the Commissioner, Jullundur Division, after November 1, 1966 as there is no provision in the where under the proceedings for disciplinary action against a public servant, who is allocated to a State other than the one in which the proceedings are pending, could be continued by the Inquiry officer already appointed nor could such Inquiry officer submit his report to the corresponding authority in the State to which the public servant is allocated.
" Shorn of the complications of other facts if the Inquiry officer was appointed by the Commissioner of a Division which was a part of the undivided State and on reorganisation becomes a part of the new State, the disciplinary proceeding started earlier can undoubtedly be continued and concluded without a fresh order of starting a disciplinary proceeding.
We therefore, hold that the view taken by the High Court that the orders were still born and ineffective because They were received by the respondents on or after 1 11 1966 is not correct.
After careful consideration we have arrived at the conclusion that.
the impugned orders of reversion dated October 28, 1966 were valid.
About 9 years have passed since then and some complications have arisen during this period.
Admittedly, after the High Court judgment all the respondents were officiating in the higher posts.
At the time of the hearing of these appeals, we were given to understand at the Bar that none of the respondents was reverted pursuant to the impugned order We asked the parties to ascertain the correct position and file their statements.
On behalf of the Government we have been inform (1) 72 Punjab Law Reporter 950. 127 ed that they will not claim any refund of the salaries paid to the respondents for the period they have worked as officiating Sub Divisional officers in the Department.
But they claimed that the respondents were not working as such after the reversion order and before the High Court Judgment and hence they are entitled to get back the difference.
Of salary paid to the respondents for the period they have not worked as Sub Divisional officers and had worked only as overseers and Draftsmen in their substantive posts.
The difference of salary for the intervening period between the order of reversion and the High Court Judgment was paid to them subject to the furnishing of the bank guarantee.
On the other hand, it is claimed on behalf of the respondents that even during those periods they were working as S.D.O. or had gone on leave while continuing in such posts.
In the circumstances justice requires that the Government should not claim any refund of any part of the salary paid to the respondents until today.
Partly in view of their understanding and partly because of the requirement of justice, we direct the Government not to do so.
The final result of the appeals is as follows: Civil Appeal No. 521/1970 is dismissed as abated on account of the death of the respondent.
The respondent of Civil Appeal No 519, it is admitted on all hands, is no longer in service.
This appeal is, therefore, dismissed as infructuous.
The remaining 11 appeals are allowed, the judgments and orders of the High Court both of the single Judge and the Division Bench are set aside.
But this is subject to the directions given above in regard to the salary paid to the respondents so far.
There will be no order as to costs in any of the appeals.

summary/full:
The respondents in the above 13 appeals by Special leave alongwith 2 others filed 15 Writ Petitions in the High Court of Punjab and Haryana challenging.
the order dated 28 10 1966 made by the Government of the erstwhile undivided State of Punjab reverting the respondents to their substantive ranks.
The respondents were promoted and appointed as S.D.Os.
on officiating basis in the Punjab Public Works Department on the various dates between the 1st March, 1956 and 10th May, 1963.
The erstwhile State of Punjab was reorganised by the .
On 1st November, 1966 the former State of Punjab ceased to exist and the successor States of Punjab, Haryana, Union territory of Chandigarh and the transferred territory came into being.
According to section 82 of the every person who immediately before the appointed day was serving in connection with the affairs of the existing State of Punjab would on and from that day provisionally continue to serve in connection with the affairs of the State of Punjab unless he is required by general or special order of the Central Government to serve provisionally in connection with the affairs of any other successor State.
Section 83 provides that every person who immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the existing State of Punjab in any area which on that day falls within any of the successor State shall continue to hold the same post or office in that successor State and shall be deemed on and from that day to have been duly appointed to the post or office by the Government or other appropriate authority in the successor State.
Sec 88 provides that the law applicable in the territory will continue to apply after reorganisation unless otherwise provided by a competent legislature.
Section 2(g) of the Act defines law as including any enactment, ordinance, regulation, order, by law, rule, scheme, notification or other instrument, having the force of law.
The impugned orders of reversion were communicated to the respondents after 1st November, 1966.
The orders were passed by the Government in consultation with the Punjab Public Service Commission before 1st November, 1966.
The Chief Engineer sent the said orders on 30 10 1966.
The orders were however received after 1st November, 1966.
Before the learned Single Judge of the High Court.
the respondents contended that they were governed by the Punjab Service of Engineers, Buildings and Roads Branch (Recruitment and Conditions of Service) Rules 1942, under which they became automatically confirmed as members of the service and could not be reverted without complying with the provisions of Article 311 of the Constitution.
The learned Single Judge allowed the Writ Petitions on that ground.
On an appeal before the Divisional Bench by the appellants, the Division Bench divided the respondents into three categories.
(1) those who were promoted after 1942 Rules were repealed: (2) those who were promoted within 3 years preceding the repeal of ]942 Rules: and (3) those who were 116 promoted more than three years prior to such repeal.
In the case of first category, the High Court held that the 1942 Rules did not apply.
In the case of the second category the Division Bench held that they were not entitled to get the benefits of 1942 Rules since they had not completed the period of 3 years probation to acquire the substantive post in accordance with the 1942 Rules.
Regarding those respondents who fell in the third category, the Division Bench held that they were promoted in the erstwhile Patiala and East Punjab States where the similar rules did not exist and could not be given the advantage of 1942 Rules.
The Division Bench held that Punjab Service of Engineers Class II 1965 Rules were applicable and therefore before the respondents could be absorbed and admitted to Class II service approval of the Public Service Commission was required.
In the present case, since the Commission did not find them suitable they had to he reverted to their substantive ranks.
On a consideration of large number of authorities the Division Bench came to the conclusion that the reversion of the respondents was not hit by article 311(2) of the Constitution since the reversion was not by way of punishment.
The Division Bench, however, held that the impugned orders were communicated to the respondents after 1 11 1966 and hence they remained ineffective and still born by reason of their not having been communicated to the respondents before 1st November, 1966.
The Division Bench, therefore, dismissed the appeals filed by the appellants.
In appeals by Special leave, the appellants contended that the decision of the Division Bench that the orders of reversion remained ineffective and still born was erroneous.
^ HELD: 1.
The Division Bench rightly held that the orders of reversion were not hit by article 311(2) of the Constitution.
This aspect of the matter is now clearly covered by the decision of this Court in the case of Shamsher Singh vs The State of Punjab ; This part of the judgment of the Division Bench was not seriously disputed.
[120 E F] 2.
The impugned orders were not law within the meaning of section 2 (g) and were, therefore not saved by section 88.
S.88 was introduced as a matter of abundant caution.
The law which was in force before the appointed day in the former State of Punjab were bound to continue until competent Legislature or authority of the successor States effect any change in those laws.
If this could be the position in the continuance of the law in the successor States on what principles one can say that the administrative orders made by the erstwhile State of Punjab automatically lapsed and came to an end on and from the appointed day on the coming into existence of the successor States.
When there is no change of sovereignty and it is merely an adjustment of territories by the reorganisation of a particular State, the administrative orders made by the Government of the erstwhile State continue to be in force and effective and binding on the successor States until and unless they are modified changed or repudiated by the Governments of the successor States.
No other view is possible to be taken.
The other view will merely bring about chaos in the administration of the new States.
The principles laid down by this Court in following cases: (1) Rajvi Amar Singh v The State of Rajasthan and (2) Rajkumar Narsingh Pratap Singh Deo v State of Orissa and Another ; are not applicable to the present case as this is not a case of absorption of one State in another by succession, conquest, merger or integration.
It would be chaotic if these principles were to be applied to the case of reorganization of States in the same country.
[123H, 124A D] 4.
On the facts and circumstances of this case the successor State far from repudiating or modifying the orders of reversion adopted those orders as their own.
The High Court was wrong in holding that the orders were communicated on or after 1st November, 1966 when they were actually received by the 117 officers concerned.
Following the judgment of this Court in the case of State of Punjab vs Khemi Ram, A.I.R. 1970 S.C. 214, it was held that the orders were communicated either on 29 10 1966 or surely on 30 10 1966.
The judgment of this Court in the case of Bachiter Singh vs The State of Punjab, ; , distinguished.
[125A C] 5.
It is one thing to say that in the case of dismissal or the like the order becomes effective only after it is received by the officer concerned and a different thing to say that an order has no effect at all before it is communicated in the sense of receipt of the order by the officer concerned.
The orders in the present case became effective as soon as they were sent out and for the purpose of section 83 of the Act the respondents must be deemed to be holding the posts to which they were reverted on 1st November, 1966.
[125 G H 126A] 6 .
About 9 years have passed after the impugned orders of reversion were passed.
After the High Court judgement, all the respondents were officiating in the higher posts.
After the reversion orders were passed and before the High Court judgment was delivered the respondents were not working in the higher posts.
The appellant, therefore, claimed the difference of salary paid to the respondents during this period when they were not working as S.D.Os.
The respondents contended that even during this period they were either working as S.D.Os or had gone on leave while continuing in such posts.
In the circumstances justice requires that the Government should not claim any refund of any part of the salary paid to the respondents up to date.
[126G H, 127A C]


judgement:
N: Criminal Appeal No. 277 of 1974.
Appeal by Special Leave from the Judgment and order dated the 22nd February, 1974 of the Allahabad High Court Lucknow Bench in Criminal Appeal No. 498 of 1973 and Capital Sentence No. 13 of 1973.
A. N. Mulla and N. section Das Behal for the appellant.
O. P. Rana for the respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
This appeal, by special leave, is limited only to the question of sentence.
The appellant has been sentenced to death for an offence under section 302 of the Penal Code.
The question is: Should the extreme penalty of death be commuted to one of life imprisonment? To answer the question it is necessary to state a few facts.
The appellant and a few others were tried in the Court of the Sessions Judge, Unnao for offences under section 148 and section 302 read with section 149 of the Indian Penal Code.
The learned Sessions Judge, on an appreciation of the evidence, found that the appellant, Sheo Dayal, Mihi Lal, Dularey and Mewa Lal had formed an unlawful assembly and in pursuance of its common object, the appellant had intentionally caused the death of one Ram Kumar by by inflicting on him a severe injury with a bank severing his head from the body and then carried away the head in an angaucha in a most brutal and inhuman fashion.
On this finding, the learned Sessions Judge convicted the appellant, Sheo Dayal, Mihi Lal, Dularey and Mewa Lal of offences under section 148 and section 302 read with section 149 and sentenced each of them to rigorous imprisonment for one fear for the former offence and to death for the latter.
The appellant, Sheo Dayal, Mihi Lal, Dularey and Mewa Lal preferred an appeal to the High Court against the order of conviction and sentence recorded against them and their case was also referred to the High Court for confirmation of the death sentence.
The High Court agreed with the findings reached by the learned Sessions Judge and confirmed the conviction of Sheo Dayal, Mini Lal, Dularey and Mewa Lal under section 148 and section 302 read with section 149, but reduced their sentence to one of life imprisonment for the offence under section 302 read with section 149 and so far as the appellant was concerned, the conviction was converted to one under section 302 and the sentence of death was maintained.
The appellant thereupon preferred an application for special leave and on that application, special leave was granted by this Court limited only to the question of sentence.
Now, there can be no doubt that the crime committed by the appellant was a most reprehensible and heinous crime which dis 276 closed brutality and callousness to human life and no extenuating circumstances could be pointed out on behalf of the appellant which would assuage the conscience of the Court and persuade it not to inflict the extreme penalty of death on the appellant.
The only circumstance on which reliance could be placed on behalf of the appellant for mitigating the rigour of the punishment to be inflicted on him was his tender age at the time of the commission of the offence.
The record of the case shows that the appellant was about sixteen years of age at the time when he committed this brutal crime.
The question is : whether this could be regarded as a valid circumstance for invoking the clemency of penal justice? The legislative history in regard to the subject of capital punishment shows that there has been significant change in thinking and approach since India became free.
Prior to the amendment of section 367(5) of the Code of Criminal Procedure by Act 26 of 1955, the normal rule was to impose sentence of death on a person convicted for murder and, if a lesser sentence was to be imposed, the Court was required to record reasons in writing.
But by Act 26 of 1955 this provision in section 367(5) was omitted, with the result that the Court became free to award either death sentence or life imprisonment and no longer was death sentence the rule and life imprisonment the exception.
Then again a further progress was made in the same direction by section 354(3) of the Criminal Procedure Code, 1973.
That section provides that when the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence or death, the special reasons for such sentence.
It will be seen that the unmistakable shift in the legislative emphasis is that for murder, life imprisonment should be the rule and capital punishment the exception to be resorted to only for special reasons.
It is only where, in view of the peculiar facts and circumstances, there are special reasons that death sentence may be awarded : otherwise life sentence should be the ordinary rule.
This legislative provision in the new Code of Criminal Procedure clearly shows, as pointed out by Krishna Iyer, J., in E. Anamma vs State of Andhra Pradesh(1), "that the disturbed conscience of the State on the vexed question of legal threat to life by way of death sentence has sought to express itself legislatively, the stream of tendency being towards cautious, partial abolition and a retreat from total retention.
" The seminal trends in current sociological thinking and penal strategy, tampered as they are by humanistic attitude and deep concern for the worth of the human person frown upon death penalty and regard it as cruel and savage punishment to be inflicted only in exceptional cases.
It is against this background of legislative thinking which reflects the social mood and realities and the direction of the penal and processual laws that we have to consider whether the tender age of an accused is a factor contraindicative of death penalty.
277 The Law Commission, in the 35th Report made by it on capital punishment fully considered whether the Indian Penal Code should specify the minimum age of the offender who can be sentenced to death, and after examining the position under the Children 's Acts of various States it expressed the following opinion : "We feel that, having regard to the need for uniformity, to the views expressed on the subject, and to the consideration that a person under 18 can be regarded as intellectually immature, there is a fairly strong case for adopting the age of 18 as the minimum for death sentence.
we are aware that cases will occasionally arise where a person under 18 is found guilty of a reprehensible killing, or, conversely, a person above 18 is found to be immature and not deserving of the highest punishment.
A line has, however, to be drawn somewhere and we think that 18 can be adopted without undue risk.
We, therefore recommend that a person who is under the age of 18 years at the time of the commission of the offence should not be sentenced to death.
A provision to that effect can be conveniently inserted in the Indian Penal Code as section 558.
" The Law Commission in its 42nd Report on the Indian Penal Code agreed with this recommendation of the previous Law Commission vide paragraph 3.34 of the 42nd Report of the Law Commission.
The Central Government appears to have accepted this recommendation and a provision to that effect is to be found in the Indian Penal Code (Amendment) Bill, 1972.
This being the current sociological and juristic thinking on the subject, it would be legitimate for the Court to refuse to impose death sentence on an accused convicted of murder if it finds that at the time of commission of the offence he was under 18 years of age.
Krishna Iyer, J., also pointed out in E. Anamma vs State of Andhra Pradesh (supra) that "where the murderer is too young the elemency of penal justice helps him", and a murderer who is below 18 years age at the time of the commission of the offence would certainly be "too young".
The appellant in the present case was, as pointed out above, just around 16 years of age at the time when he committed the offence and, therefore, in the light of the above discussion he would be entitled to the elemency of penal justice and it would not be appropriate to impose the extreme penalty of death on him.
We accordingly commute the sentence of death imposed on the appellant and convert it to one of life imprisonment.
P.B.R. Appeal allowed and sentence reduced.

summary/full:
The legislative history in regard to the subject of capital punishment shows that there has been a significant change in thinking and approach Since India became free.
Prior to the amendment of section 367(5) of the Code of Criminal Procedure by Act 26 of 1955, the normal rule was to impose sentence of death on a person convicted for murder and if a lesser sentence was to be imposed, the Court was required to record reasons in writing.
But by Act 26 of 1955, this provision in section 367(5) was omitted with the result that the Court became free to award either death sentence or life imprisonment, and no longer was death sentence the rule and life imprisonment the exception.
Then again a further progress was made in the same direction by section 354(3) of the Criminal Procedure Code, 1973.
That section provides that when the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded and, in the case of sentence of death, the special reasons for such sentence.
The unmistakable shift in the legislative emphasis is that for murder, life imprisonment should be the rule and capital punishment the exception to be resorted to only for special reasons.
It is only where, in view of the peculiar facts and circumstances, there are special reasons that the death sentence may be awarded: otherwise life sentence offence would certinly be "too young." [277G; E, F] The seminal trends in current sociological thinking and penal strategy tempered as they are by humanistic attitude and deep concern for the worth of the human person, frown upon death penalty and regard it as cruel and savage punishment to be inflicted only in exceptional cases.
[276G] In the instant case the appellant was charged with an offence of murder by severing the head of the deceased from the body and then carrying it away in a most brutal and inhuman manner.
The trial court convicted and sentenced him to death.
Both the conviction and sentence were upheld by the High Court.
On the question of sentence, Allowing the appeal to this Court, ^ HELD: The appellant was just around 16 years of age at the time when he committed the offence and, therefore, he would be entitled to the clemency of penal justice.
It would not be appropriate to impose the extreme penalty of death.
Taking into account the current sociological and juristic thinking as could be seen from the recommendation of the Law Commission which appears to have been incorporated in the Indian Penal Code (Amendment) Bill 1972, it would be legitimate for the Court to refuse to impose death sentence on an accused convicted of murder, if it finds that at the time of the commission of the offence the appellant was under 18 years of age.
A murderer who is below 18 years of age at the time of commission of the offence would certainly be "too young." [277G; E, F] E. Anamma vs State of Andhra Pradesh, A.I.R. 1974 S.C. 799, followed.