judgement:
Appeal No. 1313 of 1973.
(From the Judgment and Order dated 7 9 1972 of the Calcutta High Court in Income Tax Reference No. 208 of 1966).
V.P. Raman, Addl.
Solicitor Genl.
and M.N. Shroff for the Appellant.
K. Ray and D.N. Gupta, for the Respondent.
The Judgment of the Court was delivered by KHANNA, J.
This appeal on certificate, by the Commissioner of Income tax, is against the judgment of the Calcutta High Court whereby the High Court answered in a reference under the Income tax Act the following question in favour of the assessee respondent and against the revenue: "Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that in making the reassessment under section 147(b) of the Income tax Act, 1961, the Income tax Officer could not depart from the method of computation permitted in Rule 33 of the Income tax Rules and followed in the original assessment, and adopt an alternative method of computation also permitted under the said Rules (corresponding to Rule 10 of the Income tax Rules, 1962) ?" The matter relates to the assessment year 1959 60, the corresponding financial year for which ended on March 31, 1959.
The assessee is a non resident company carrying on business as construc tion engineers.
The Income tax Officer made the original assessment on May 31, 1960 on a total income of Rs. 21,49,169.
On November 5, 1962 the Income tax Officer initiated proceedings under section 147(b) of the Income tax Act, 1961 (herein after referred to as the Act) and completed the assessment on February 29, 1964 on a total income of Rs. 69,85,097.
At the time of the original assessment the assessee filed the return of income along with the auditor 's certificate of the trading results of the various contracts.
One of those contracts was in respect of work at Durgapur with the Hindustan Steel Ltd. In respect of that work 209 the assessee filed a provisional estimate of income which was arrived at "by calculating the income that could be attributable in relation to the tax deducted under section 18(B) by the Hindustan Steel Ltd." The Income tax Officer computed the income from that contract at Rs. 5,33,164.
The income from the other contracts was computed at Rs, 16,16,005 "as per audited statements.
" In the reassessment proceedings the Income tax Officer purported to find as under: (i) That the assessee 's outlay in India to the total outlay in various contracts represented a fair index of operations carried out in India and as such 60 per cent of the profits attributable to sterling payments and claimed to be exempt related to operations in India and fell to be included in the assessee 's total income; (ii) that the figure of depreciation required to be changed; and (iii) that some portion of the income had to be assessed under section 4(1)(A) on receipt basis.
The total income of the assessee, as already mentioned, was determined as a result of reassessment to be Rs. 69,85,097.
In arriving at the figure of the total income the Income tax Officer estimated the income in respect of Durgapur contract to be Rs. 5,33,164 as had been done in the original assess ment.
Regarding the other contracts, the Income tax Officer determined the income of the assessee in reassessment pro ceedings to be Rs. 64,51,933.
The difference in the income computed at the time of the original assessment and at the time of reassessment was due to the fact that the Income tax Officer at the time of original assessment adopted one method of computation under rule 33 of the Income tax Rules, 1922 while the Income tax Officer making reassessment adopt ed another method under that rule.
On appeal it was submitted before the Appellate Assist ant Commissioner on behalf of the assessee that the action of the Income tax Officer in reopening the assessment under section 147(b) was without jurisdiction and that the Income tax Officer had no jurisdiction to change the method of computation as originally adopted in the revised proceedings.
The Appellate Assistant Commissioner held that the proceedings under section 147(b) were bad and that the Income tax Officer could not adopt an alternative method of computation in the reassessment proceedings.
He, therefore, allowed the appeal.
The Appellate Assistant Commissioner at the same time observed that the Income tax Officer would be justified in computing the income to be Rs. 22,23,231 and that the assessee had no objection to such a revision.
In appeal before the Tribunal the department urged that the Appellate Assistant Commissioner was not justified in holding that the Income tax Officer (i) had no jurisdic tion to start proceedings under section 147(b) of the Act; and (ii) that the Appellate Assistant 210 Commissioner had erred in allowing deductions in the income of the assessee.
The Tribunal held on the first ground that proceedings under section 147(b) had been validly initiat ed.
Regarding the second ground, the Tribunal observed in agreement with the Appellate Assistant Commissioner that the mode of computation adopted in the original assessment was one permitted under rule 33 of the Income tax Rules 1922 and that the mode adopted in reassessment was another alterna tive method.
The tribunal held that both the methods being permissible, it could not be said that any mistake was committed in computing the income at the time of the origi nal assessment on a particular basis adopted with reference to rule 33.
In the opinion of the Tribunal, the Income tax Officer could not in reassessment proceedings depart from the method of computation adopted in the original assess ment.
The Tribunal directed that the reassessment be made "adopting the same method of computation as in the original assessment subject to any adjustments which may be justified such as excess depreciation being charged in the account and so on." At the instance of the revenue, the question reproduced above was referred to the High Court.
The High Court, while answering the question against the revenue, referred to the connotation of the words "escaped income" and observed " . it means an income which the asses see has succeeded in getting away with or has eluded observation or search or notice of the tax authorities.
In other words, it cannot mean an item of income which has not been taxed by purusing a method approved by law.
In the instant case, the excess income was not taxable under the third method but it has become taxable by following another method sanctioned by the same rule, namely, rule 33.
This is not, therefore, a case of escaped income which has not been brought into the orbit of taxation in the reassessment proceedings.
" In appeal before us learned Additional Solicitor General has assailed the judgment of the High Court and has contended that the High Court was in error in holding that the instant case was not one of income escaping assessment.
As against that, Mr. Ray on behalf of the assessee respondent has canvassed for the correctness of the view taken by the High Court.
Before dealing with the contentions advanced, it may be apposite to refer to the relevant provisions.
According to section 4(1 )(c) of the Indian Income tax Act, 1922, subject to the provisions of that Act, the total income of any previous year of any person includes all income, profits and gains from whatever source derived which if such person is not resident in the taxable territories during such year, accrue or arise or are deemed to accrue or arise to him in the taxable territories during such year.
Sub section (1) of section 42 of the Act of 1922, inter alia, provides that all income, profits or gains accruing or arising, whether directly or indirectly, through or from any business connec tion in the taxable territories, shall be deemed to be income 211 accruing or arising within the taxable territories, and where the person entitled to the income, profits or gains is not resident in the taxable territories, shall be chargeable to income tax either in his name or in the name of his agent.
According to sub section (3) of section 42, in the case of a business of which all the operations are not carried out in the taxable territories, the profits and gains of the business deemed under this section to accrue or arise in the taxable territories shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories.
The assessee respondent in the present case carried on business as construction engineers both in India and other parts of the world.
The Income tax Officer, it seems, found that the provisions of section 42 of the Act of 1922 did not provide sufficient criteria for computing the profits and gains of business deemed to accrue or arise in India.
Resort was accordingly had to rule 33 of the 1922 Rules.
The above rule has been made to meet such an eventuality, and reads as under: "In any case in which the Income tax Officer is of opinion that the actual amount of the income, profits or gains accruing or arising to any person residing out of the taxable territories whether directly or indirectly through or from any business connection in the taxable territories or through or from any property in the taxable territories, or through or from any asset or source of income in the taxable territories, or through or from any money lent at interest and brought into the taxable territories in cash or in kind cannot be ascer tained, the amount of such income, profits or gains for the purposes of assessment to income tax may be calculated on such percentage of the turnover so accruing or arising as the Income tax Officer may consider to be reasonable, or on an amount which bears the same proportion to the total profits of the business of such person (such profits being computed in accordance with the provisions of the Indian Income tax Act) as the receipts so accruing or arising bear to the total receipts of the busi ness or in such other manner as the Income tax Officer may deem suitable.
" Shorn of the parts with which we are not concerned, the rule provides that in any case in which the Income tax Officer is of the opinion that the actual amount of income, profits or gains accruing or arising to any person residing out of the taxa ble territories, whether directly or indirectly, through or from any business connection in the taxable territories cannot be ascertained, the amount of such income, profits or gains for the purpose of assessment to income tax may be calcu lated (i) on such percentage of the turnover so accruing or arising as the Income tax Officer may consider to be reasonable, or (ii) on an amount which bears the same propor tion to the total profits of the business of such person (such 212 profits being computed in accordance with the provisions of the Indian Income tax Act) as the receipts so accruing or arising bear to the total receipts of the business, or (iii) in such other manner as the Income tax Officer may deem suitable.
The above rule makes it clear that if other condi tions mentioned in the rule are satisfied, it would be open to the Income tax Officer in computing the income, profits or gains to apply one of the three methods mentioned in the rule.
It is the common case of the parties, and that is also the underly ing assumption of the question referred to the High Court, that the Income tax Officer in making the original assessment adopted one method while the Income tax Officer making reassessment adopted another method contemplated by rule 33.
The ques tion with which we are concerned is whether it would be a case of income escaping assessment if the Income tax Officer adopts a method of computa tion which is permissible under the law but which method results in lower tax liability compared to the other method which too is permissible in law.
According to the learned Additional Solicitor General, the adoption of a method even though permitted by rule 33 which results in lower tax liability of the assessee compared to the other method mentioned in the rule would warrant the conclusion that income has escaped assessment and as such section 147 of the Act of 1961 would get attracted.
After giving the matter our earnest consideration, we find it difficult to accept the above contention.
It was open, as already men tioned, to the Income tax Officer at the time of making the original assessment to adopt one of the three methods mentioned in rule 33 for computing the taxable income of the assessee.
Discretion was vested by rule 33 in the Income tax Officer for the purpose of making his choice of the methods, and the same was to be exercised in a proper and judi cious manner.
There is nothing before us to show that the discretion was not exercised by the said officer in a proper or judicious manner.
It is also not suggested that the Income tax Officer was actuated by some oblique motive.
From the mere fact that the method selected by him was such as result ed in lower tax liability of the assessee compared to the liability which would have resulted from the adoption of other method, it would not follow that the discretion was not exercised in a proper and judicious manner.
The taxing authorities exercise quasi judicial powers and in doing so they must act in a fair and not a partisan manner.
Although it is part.
of their duty to ensure that no tax which is legitimately due from an assessee should remain unrecovered, they must also at the same time not act in a manner as might indicate that scales are weighted against the assessee.
We are wholly unable to subscribe to the view that unless those authori ties exercise the power in a manner most beneficial to the revenue and consequently most adverse to the assessee they should be deemed not to have exer cised it in a proper and judicious manner.
The order made by the Income tax Officer at the time of the original assessment was a legally correct order and was not vitiated 213 by any error.
The absence of an error in that order would justify the inference that the present is not a case of income escaping assessment.
There is necessarily an element of error in cases of income escaping assessment mentioned in section 147(b) of the Act of 1961.
Such error resulting in income escaping assessment becomes manifest in the light of information coming subsequently into the possession of the Income tax Officer.
Where, as in the present case, the order making the original assessment was a legally correct order and was not vitiated by any error, the case would not be one which would fall within the ambit of section 147(b) of the Act of 1961 or section 34(1)(b) of the Act of 1922.
We may add that the Income tax Officer ordering reassess ment ' does not sit as a court of appeal over the Income tax Officer making the original assessment.
Nor is it open to the Income tax Officer ordering reassessment to substitute his own opinion regarding the method of computing the income for that of the Income tax Officer who made the original assessment, especially when the method of computation adopt ed at the time of original assessment was permissible in law.
The fact that the adoption of a different method of computation would have resulted 'in higher yield of tax would not in such a case justify the reopening of the as sessment.
It has been argued on behalf of the appellant that reassessment under section 147(b) would be justified where in the original assessment income liable to tax has escaped assessment due to oversight, inadvertence or a mistake committed by the Income tax Officer.
The present however, we find, is a case which does not fall in any of those categories.
We would, therefore, uphold the judgment of the High Court and dismiss the appeal with costs.
V.P.S. Appeal dis missed.

summary/full:
Section 42, Income tax Act, 1922, provides for assessing the income, profits gains deemed to accrue or arise in the taxable territories to a person not resident in the taxable territories.
RuLe 33 of the 1922 Rules is made for comput ing the profits and gains of business deemed to accrue or arise in India in cases where the income tax officer finds that the provisions of section 42 do not provide sufficient criteria.
The rule mentions three methods and it would be open to the income tax officer to select and apply one of the three methods mentioned in the rule.
The assessee respondent in the present case, is a non resident company carrying on business as construction engi neers both in India.
and in other parts of the world.
The Income tax Officer found that section 42 of the 1922 Act did not provide sufficient criteria for computing the profits and gains of the assessee deemed to accrue or arise in India and, therefore, assessed the income applying one of the three methods mentioned in r. 33.
As it resulted in lower tax liability, his successor initiated proceedings under section 147(b), Income tax Act, 1961, adopted another method contem plated by r. 33.
and assessed the income at a higher figure.
The Appellate Assistant Commissioner, the Tribunal and High Court held that in making the reassessment the Income tax Officer could not depart from the method of computation followed in the original assessment, and adopt an alterna tive method of computation though permitted by the rule.
In appeal to this Court, it was contended that the lower tax liability in the original assessment showed that it was a case of escaped assessment and as such section 147 of the 1961 Act was attracted.
Dismissing the appeal, HELD: It is open to the Income tax Officer at the time of making the original assessment to adopt one of the three methods mentioned in r. 33 for computing the taxable income of the assessee.
From the mere fact that the method select ed by him resulted in lower tax liability compared to the liability which would have resulted from the adoption of another method under the rule, it would not follow that the discretion was not exercised by the Income tax Officer in a proper and judicious manner, and that it would be a case of income escaping assessment.
[212 E F] (1) The discretion to choose one of the methods in r. 33 ought to be exercised by the Income tax Officer in a proper and judicious manner.
In the present ease, there is nothing to show that the discretion was not so exercised by the Income tax Officer, nor was it suggested that he was actuat ed by any oblique motive.
The Income tax Officer ordering reassessment does not sit as a Court of appeal over the officer making the original assessment, nor is it open to him to substitute his own opinion regarding the method of computation of the income especially when the method of computation adopted at the time of original assessment was permissible in law.
The taxing authorities exercise quasi judicial powers, and in doing so, they must act in a fair and not a partisan manner.
Although it is part of their duty to ensure that no tax, which is legitimately due from an assessee, should remain unrecovered, they 208 must also at the same time not act in a manner which indi cates that the scales are weighted against the assessee.
It is not correct to say that unless.
the authorities exercise the power in a manner most beneficial to the revenue and consequently most adverse to the assessee, they should be deemed not to have exercised their discretion in a proper and judicious manner.
[213C, 212G] (2) The original order of the first Income tax Officer was a legally correct order and was not vitiated by any error.
The absence of an error would justify the inference that it is not a case of income escaping assessment.
There is necessarily an element of error which becomes in cases of income escaping assessment mentioned in section 147(b) of Act of 1961 manifest in the light of subsequent information re ceived by the Income tax Officer.
In the present case, no income has escaped assessment due tO oversight, inadvertence or a mistake committed by the first Income Tax Officer.
Therefore, the case would not fall within the ambit of section 147(b) of the 1961 Act or section 34(1)(b) of the 1922 Act.
[213A B]


judgement:
n No. 1596 of 1975.
T.S. Krishnamoorthy Iyer and P. Kesva Pillai, for the peti tioners.
M. M. Abdul Khadir, M.K. Mustapha and K.P. Nambiar for the respondents.
The Judgment of the Court was delivered by RAY, C.J.
The first petitioner is the minor daughter of the second Petitioner.
The petitioners in this writ peti tion challenge the Government Order dated 2 May, 1966 on the ground that it offends Article 15(4) of the Constitution.
The petitioners also ask for an order directing the respond ents, viz, the State and the.
Principal of the Medical College at Trivandrum to allot a seat to the first petition er.
The first petitioner applied for admission to the M.B.B.S. Course for 1975 76 in one of the Medical Colleges at Trivandrum in the State of Kerala.
Clause 8 sub clause (vi) in the prospectus for commission provided among other things that the applicant should produce certificate of community and income (from all sources) in the prescribed form in the case of candidates.
belonging to the communities recognised by the Government as socially and educationally backward classes.
The petitioner produced the certificate from the Tahsil dar, showing that the total income of her family from all sources is Rs. 11,752/for the year 1975 76 and that she is an Ezhava.
The minimum marks prescribed for admission for candi dates belonging to Ezhava community in the State is 363 in the optional subjects of Physics, Chemistry and Biology.
The petitioner obtained 372 marks.
The petitioner alleges that the list of candidates belonging to the Ezhava/Thiyya community selected for the seats reserved to them under Article 15(4) of the Constitution was published on 10 Octo ber 1975 and the first petitioner was not selected though candidates belonging to Ezhava community who had obtained less marks than the first petitioner had been selected.
The petitioners further allege that the list shows that candi dates No. 6 to 27 obtained marks ranging between 371 and 357.
The Principal, Medical College sent a Memorandum to the first petitioner that, as the income exceeds Rs. 10,000/ her case cannot be considered under reservation scheme.
196 Clause 11 of the prospectus for 1975 76 for admission to M.B.B.S. Course in Medical Colleges in the State is as follows : "11.
Selection for admission, reservation for section Cs/S. Ts/ Socially and educationally back ward Class and reservation on regional basis : Selection of candidates will be on the basis of merits as laid down in C.R.Rt. 1361/70 Health dated 18.6.1970 and D.O. Ms. M.O. No. 216/71 Health dated 6.7.1971 and subject to the provisions con tained in G.D.(P) 208/66/Edn.
dated 2.5.1966 and subsequent orders of the Government regarding reservation for Scheduled Castes and Scheduled Tribes and other socially and educationally back ward class, reservation for Malabar and Travanco reCochin, area etc.
The decision of the Govern ment and matters concerning admission shall be final.
" On 2 May, 1966 the State Government issued an order, inter alia, that only applicants who are members of families consisting of Ezhavas, whose aggregate annual income is below Rs. 6,000/ would be entitled to admission to the seats reserved for students belonging to the socially and educationally backward class.
It should be stated here that the said order of the State Government came to be issued on the consideration of the report of the Commission appointed by the State to enquire into the social and educa tional conditions of the people and report as to what sec tions of the people in the State of Kerala should be treat ed as socially and educationally backward classes.
The Commission assumed office on 14 July, 1964 and submitted its report on 31 December, 1965.
The recommenda tion of the Commission was that only citizens who are members of families which have an aggregate income of less than Rs. 4200/ per annum and which belong to the castes and communities mentioned in Appendix VIII constitute so cially and educationally backward classes for purposes of Article 15(4).
When the Government passed the order on 2 May, 1966 the Government order stated inter alia as follows : "After the Commission collected data for its report, the cost of living has risen further and the income tax exemption limit has been raised.
Having regard to the current cost of mainte nance of a student in a professional or technical institu tion, Government consider that the income limit of Rs. 4200/ suggested by the Commission should appropriately be raised to Rs. 6000/ per annum.
In the circumstances, the Government accepted the above recommendation subject to.
the modification that only citizens who are members of families which have an aggregate income of less than Rs. 6000/ per annum and which belong to the castes and communities men tioned in the annexure to this Government Order will consti tute socially and educationally backward classes for pur poses of Article 15(4).
The order of the Government dated 2 May, 1966 was chal lenged in the Kerala High Court.
The learned Single Judge quashed the Government Order by decision dated 24 February 1975 reported in 197 A.I.R. 1975 Kerala 131.
The State filed an appeal.
The validity of the Government Order dated 2 May, 1966 was upheld by the Kerala High Court.
The decision of the High Court dated 14 July, 1975 reversing the Judgment of the learned Single Judge is reported in 1975 Kerala Law Times 851 State of Kerala vs Krishna Kumari.(1) The High Court held that the Commission had material before it.
It is not for the court to weigh the evidence.
The question is wheth er the approach made by the Commission is correct.
The High Court held 'that economic backwardness plays a part in social backwardness and in educational backwardness.
Pover ty or economic standard is a relevant factor.
Economic backwardness contributes to social backwardness.
On 2 September, 1975 the State Government passed an order which inter alia states as follows : "After the issuance of the Government Order the cost of living has risen further and the income tax exemption limit has been raised.
Having regard to the current cost of maintenance of a student in a professional or technical institution, Government consider that the income limit of Rs. 6000/prescribed in the Government Order should be appropriately raised.
In the circumstances, Government are pleased to enhance the income limit of Rs. 6000/ prescribed to.
Rs. 10000/ per annum with effect from the academic year 1975 76 The petitioners contended that there is no reason to exclude an insignificant part of the community on the basis, of income alone.
The petitioners emphasised that if the socially and educationally backward classes are set out in the Annexure, income cannot be the criterion of admission to determine the benefit of Article 15(4).
The contention of the State is that the Government Order dated 2 May, 1966 is not in violation of Article 15(4) because the expression "backward class" in Article 15(4) is not used as Synonymous with backward caste or backward community.
The members of an entire caste or community may in social, economic and educational scale of values, at a given time be backward and may on that account be treated as a backward class.
The reason is that they are treated as socially and educationally backward not because they are members of a caste or community but because they form a class.
Backward classes for whose improvement special provi sions are contemplated by Article 15(4) are in the matter of their backwardness comparable to Scheduled Castes and Scheduled Tribes.
This Court has emphasised in decisions that the backwardness under Article 15 (4) must be both social and educational.
In ascertaining social backwardness of a class of citizens, the caste of a citizen cannot be the sole or dominant test.
Just as caste is not the sole or dominant test, similarly poverty is not the decisive and determining factor of social backwardness.
(1) [1975] Kerala Law Times 851.
198 The Report of the Commission for reservation of seats in educational institutions found on applying the relevant test that the lower income group of the communities named in Appendix VIII of the Report constitute the socially and educationally backward classes and they are identified as those whose family income is below the specified limit.
The basis of the reservation is not income but social and educational backwardness.
The object of the reservation under Article 15(4) is to recognise the factual existence of socially and educational ly backward classes in our country and to make a sincere attempt to promote the welfare of the weaker sections of the community.
Article 15(4) gives effect to this principle.
The concept of backwardness in Article 15(4) is not intended to be relative in the sense that classes who are backward in relation to the most advanced classes of society should be included in it.
The Commission found that the rich people in *_he backward communities even though they have not acquired any high level of education are able to move in society today without being discriminated socially.
The Commission fur ther found that the benefit of the existing reservation of seats in educational institutions in favour of the Ezhavas and other backward communities is today enjoyed by the rich people of the type mentioned above.
Further, evidence before the Commission was that the wealthy sections do not at present have any caste or communal disabilities worth mentioning and are not socially backward.
The Commission found that the benefit of the present system of reservation based solely on caste or community is to a considerable extent, being enjoyed by the wealthy sections to the preju dice of the poorer sections.
The Commission, therefore, found that consideration of a means rum caste/community test should be adopted for the classification so as to take in the poor and deserving sections and exclude the wealthier sections.
The Commission examined occupational test and found that all the persons belonging to a particular caste or community may not now be following its traditional occupation, but most of the persons who pursue any of those occupations belong to the caste or community whose traditional occupa tion it is.
The Commission found that in such cases very often persons following the traditional occupation will be closely related to persons who are pursuing occupations to which there is no social stigma.
In such eases, on account of the near relationship of the persons following the traditional occupation to the other persons and their caste/Communal associations, the stigma affects even the persons not following these traditional occupations.
The Commission found that it is only the lower income group which is affected by ' the stigma.
The Commission found that changes occur at short intervals and therefore identifica tion of persons occupation wiSe becomes more difficult in their case.
The Commission referred to the habitational test.
The Commission expressed the opinion that there are no great social differences in the State merely on account of places of ' residence.
Complete and 199 reliable tests on the subject were not available to the Commission to compare the people of the Malabar area to.
that of TravancoreCochin area: The Commission, howev er, said that Malabar is .educationally backward compared to Travancore Cochin area.
As regards educational backwardness of the classes of citizens, the Commission found that the State average of the students in the last of the High School classes can safely be taken as one of the elements of the composite test for ascertaining educational backwardness.
The Commission treated as backward the communities which have an abnormal fail out.
In such cases if their educational backwardness is established by the total absence of any student from the community, the lower income group is included among the socially and educationally backward classes on being satis fied of their social backwardness.
Social backwardness can contribute to educational backwardness and educational backwardness may perpetuate social backwardness.
Both are often no more than the inevitable corollaries of the extremes of poverty and the deadening weight of custom and tradition.
The Commission applied the tests for educational back wardness, test of habitation, necessity for a means cum caste/community test, the income level for the means cum caste/community test, and came to the conclusion that citi zens in the State of Kerala who are members of families which have an aggregate income of less than Rs. 4200/per annum from all sources and which belong to castes or commu nities mentioned in Appendix VIII constitute socially and educationally backward Classes for purposes of Article 15(4).
The Commission found that generally the members of the castes and communities mentioned in Appendix VIII are educationally backward and that the lower income groups which have an aggregate income of less than Rs. 4200/ per annum are socially backward also.
The lower income group of these castes and communities belongs in the opinion of the Commission to classes of citizen who are both socially and educationally backward.
In ascertaining social backwardness of a class of citizens it may not be irrelevant to consider the caste of the group of citizens.
Caste cannot however be made the sole or dominant test.
Social backwardness is in the ulti mate analysis the result of poverty to a large extent.
Social backwardness which results from poverty is likely to be aggravated by considerations of their caste.
This shows the relevance of both caste and poverty 'in determining the backwardness of citizens.
Poverty by itself is not the determining factor of social backwardness.
Poverty is relevant in the context of social 'backwardness.
The Com mission found that the lower income group constitutes so cially and educationally backward classes.
The basis of the reservation is not income but social and educational backwardness determined on the basis of relevant crite ria.
If any classification of backWard classes of citizens is based solely on the caste of the citizen it will perpetu ate the vice of caste system.
Again, if the classifica tion is based solely 200 on poverty it will not be logical.
The society is taking steps for uplift of the people.
In such a task groups or classes who are socially and educationally backward are helped by the society.
That is the philosophy of our Con stitution.
It is in this context that social backwardness which results from poverty is likely to be magnified by caste considerations.
Occupations, place of habitation may also be relevant factors in determining who are socially and educationally backward classes.
Social and economic consid erations come into operation in solving the problem and evolving the proper criteria of determining which classes are socially and educationally backward.
That is why our Constitution provided for special consideration socially and educationally backward classes of citizens as also.
Scheduled Castes and Tribes.
It is only by directing the society and the State to offer them all facilities for social and educational uplift that the problem is solved.
It is in that context that the Commission in the present case found that income of the classes of citizens mentioned in Appendix VIII was a relevant factor in determining their social and educational backwardness.
The problem of determining who are socially and educa tionally backward classes is undoubtedly not simple.
Socio logical and economic considerations come into play in evolv ing proper criteria for its determination.
This is the function of the State.
The Court 's jurisdiction is to decide whether the tests applied are valid.
If it appears that tests applied are proper and valid the classification of socially and educationally backward classes.
based on the tests will have to be consistent with the requirements of Article 15(4).
The Commission has found on applying the relevant tests that the lower income group of the communi ties named in Appendix VIII of the Report constitute the socially and educationally backward classes.
In dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to con sider the caste of the said group of citizens.
It is neces sary to remember that special provision is contemplated for classes of citizens and not for individual citizens as such, and so though the caste of the group of citizen may be relevant, its importance should not be exaggerated.
If the classification is based solely on caste of the citizen, it may not be logical.
Social backwardness is the result of poverty to a very large extent.
Caste and poverty are both relevant for determining the backwardness.
But neither caste alone nor poverty alone will be the determining tests.
When the Commission has determined a class to be socially and educationally backward it is not on the basis of income alone, and the determination is based on the relevant crite ria laid down by the Court.
Evidence and material are placed before the Commission.
Article 15(4) which speaks of back wardness of classes of citizens indicates that the accent is on classes of citizens.
Article 15(4) also speaks of Sched uled Castes and Scheduled Tribes.
Therefore, socially and educationally backward classes of citizens in Article 15(4) cannot be equated with castes.
In R. Chitralekha & Anr.
vs State of Mysore & Ors.(1) this (1) ; 201 Court said that the classification of backward classes based on economic conditions and occupations does not offend Article 15(4).
The different castes that have been described in Appen dix VIII to the Commission 's Report ' have not been accepted by the Commission as embodying the group of socially and educationaly backward classes of people.
Only those among the members of the castes mentioned in Appendix VIII whose economic means was below that stated by the Commission were treated as socially, and educationally backward.
The educa tional backwardness is reflected to a certain extent by the economic conditions of the group.
For the foregoing reasons the petition is dismissed.
Parties will pay and bear their own costs.
P.B.R. Petition dis missed.

dataset_name: IN-Abs

summary/full:
A Commission appointed by the State Government to en quire into the social and educational Conditions of the people in the State and to recommend as to what sections should be treated as socially and educationally backward classes found that the benefit then in vogue relating to the reservation in educational institutions of seats based solely on caste or community was being enjoyed by the rich among the backward communities and found that the lower income groups of certain communities constituted the social ly and educationally backward classes.
it, therefore, recommended adoption of a means cum caste/ community test for the classification so as to take in poor and deserv ing sections and exclude the wealthier sections.
The State Government accordingly stipulated that applicants who are members of certain communities and whose family income was below Rs. 10,000/ per annum would only be entitled to seats reserved for those students The petitioner who belonged to one of the socially and educationally backward classes, submitted a certificate of annual income of the family to be above Rs. 11,000/ , as a result of which her candidature could not be considered under the reservation scheme for a seat in the Medical College.
In a writ petition under article 32 of the Constitution it was contended that there was no reason to exclude an insignificant part of the community on the basis of income alone and that the income could not be the criterion of admission to determine the benefit of article 15(4).
Dismissing the writ petition HELD: The basis of the reservation is not income but social and educational backwardness.
Backward classes for whose umprovement special provisions are contemplated by article 15(4) are in the matter of their backwardness compara ble to Scheduled Castes and Scheduled Tribes.
Backwardness under article 15(4) must be both social and educational.
In ascertaining social backwardness of a class of citizens,the aste of a citizen cannot be the sole or dominant test.
Just as caste is not the sole or dominant test, similarly poverty is not the decisive and determining factor of social back wardness.
[197 G H] The object of the reservation under article 15(4) is to recog nise the factual existence of socially and educationally backward classes in the country and to make a sincere at tempt to promote the welfare of the weaker sections of the community.
Article 15(4) gives effect to this principle.
The concept of backwardness in article 15(4) is not intended to be relative in the sense that classes who are backward in relation to the most advanced classes of society should be included in it.
[198 B C] In ascertaining social backwardness of a class of citi zens it may not be irrelevant to consider the caste of the group of citizens.
Caste cannot however be made the whole or dominant test.
Social backwardness is in the ultimate analysis the result of poverty to a large extent.
Social backwardness which results from poverty is likely to be aggravated by considerations of caste.
This shows the relevance of both caste and poverty in determining the backwardness of citizens.
In evolving proper criteria for determining the socially and educationally backward classes, sociological and economic considerations come into play.
This determination is the function of the State.
The Courts jurisdiction is to decide whether the tests applied are valid.
In dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citi zens.
Special provision is contemplated for classes of citizens and not for individual citizens as such, 195 and so.
though the caste of the group of citizens may be relevant, its importance should not be exaggerated.
If the classification is based solely on caste of the citizen, it may not be logical.
When the Commission had determined a class to be socially and educationally backward it was not on the basis of income alone, and the determination was based on the relevant criteria laid down by this Court.
Article 15(4) which speaks of backwardness of classes of citizens indicates that the accent is on the classes of citizens.
Article 15(4) also speaks of Scheduled Castes and Scheduled Tribes.
Therefore, socially and educationally backward classes of citizens in article 15(4) cannot be equated with castes.
[199 G; 200 D H] R. Chitralekha & Anr.
vs State of Mysore & Ors. ; referred to.


judgement:
Appeal No. 229 of 1953.
Appeal under Article 132(1) of the Constitution of India from the Judgment and Order dated the 16th December 1952 of the Bombay High Court in Appeal No. 110 of 1952.
M. C. Setalvad, Attorney General of India (Porus 110 868 A. Mehta and R. H. Dhebar, with him) for the appellant.
Rajinder Narain for the respondent.
October 4.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
Was the Government of Bombay entitled, under ' clause (a) of sub section (4) of section 6 of the Bombay Land Requisition Act, 1948 (Bombay Act XXXIII of 1948), to requisition , as for a public purpose, certain premises for "housing a member of the staff of a foreign consulate"?, is the question we have to consider in this appeal, which has arisen out of a writ petition filed under article 226 of the Constitution by the respondent in the Bombay High Court to restrain the State of Bombay from taking such action.
On the bearing of the petition before Tendolkar, J. the State succeeded on the ground that the purpose for which the requisition was made was a "public purpose" within, the meaning of the Act.
But, on appeal, it was held that though the requisition was for a public purpose, the requisition order was invalid, 'as the public purpose must be either a purpose of the Union, or a purpose of the State and in this particular case the accommodation being required for housing a member of a foreign Consular staff was a Union purpose, which was outside the scope of the powers of the State.
Clause (a) of sub section (4) of section 6, omitting portions unnecessary for our present purposes, runs, in these terms: "The State Government may, by order in writing, requistition the premises for the purpose of a State or any other public purpose, and may use or deal with the premises for any such purpose in such manner as may appear to it to be expedient".
The validity of the Act is not questioned as un constitutional or as beyond the scope of the legislative competence of the State.
As the premises were required for housing a member of the staff of a Con 869 sulate, there can be no doubt that it was wanted for a public purpose.
The ultimate source of authority to requisition or acquire property is be found in arcticle 31 of the Constitution.
The requisition or acquisition must be for a public purpose and there must be compensation.
This article applies with equal force to Union legislation and State legislation.
Items 33 and 36 of List I & List II of the Seventh Schedule to the Constitution empower respectively Parliament and the State Legislatures to enact laws with respect to them.
The reasoning by which the learned appellate Judges of the Bombay High Court reached their conclusion is shortly this There can be no public purpose, which is not a purpose of the Union or a purpose of the State.
There are only these two categories to consider under the statute, as the words "any other purpose" in the particular context should be read ejusdem generis with "the purpose of the State".
The provision of accommodation for a member of the foreian consulate staff is a "purpose of the Union" and not a "purpose of the State".
We are unable to uphold this view as regards both the standpoints.
Item 33 in the Union Legislative List (List I)refers to "acquisition or requisitioning of property for the purposes of the Union".
Item 36 in the State List (List II) relates to "acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List III".
Item 42 of the Concurrent Legislative List (List III) speaks of "the purpose of the Union or of a State or for any other public purpose".
Reading the three items together, it is fairly obvious that the categories of "purpose" contemplated are three in number, namely, Union purpose, State purpose, and any other public purpose.
Though every state purpose or Union purpose must be a public purpose, it is easy to think of cases where the purpose of the acquesition or requisition, is neither the one nor the other but a public purpose.
Acquisition of sites for the building of hospitals or educational institutions by private benefactors will be a 'Public purpose, 870 though it will not strictly be a State or Union purpose.
When we speak of a State purpose or a Union purpose, we think of duties and obligations cast on the State or the Union to do particular things for the benefit of the public or a section of the public.
Cases where the State acquires or requisitions property to facilitate the coming into existence of utilitarian institutions, or schemes having public welfare at 'heart, will fall within the third category above.mentioned.
With great respect, we are constrained to say that the ejusdem generis rule of construction, which found favour in the court below for reaching the result that the words "any other public purpose" 'are restricted to a public purpose which is also a purpose of the State., has scarcely any application.
A part from the fact that the rule must be confined within narrow limits, and general or comprehensive words should receive their full and natural meaning unless they are clearly restrictive in their intendment, it is requisite that there must be a distinct genus, which must comprise more than one species, before the rule can be applie If the words "any other public purpose" in the Statute in question have been used only to mean a State purpose, they would become mere surplusage; Courts should lean against such a construction as far as possible.
Even if it is conceded that the law contemplates only two purposes, namely, State purpose and Union purpose, it is difficult to see how finding accommodation for the staff of a foreign consulate is a Union purpose and not a State purpose.
Item I 1 in the Union list specifies "diplomatic, consular and trade representation" as one of the subjects within the legislative competence of Parliament, and under article 73 of the Constitution, the executive power of the Union shall extend to all such matters.
It can hardly be said that securing a room for a member of the staff of a foreign consulate amounts to providing for consular representation, and that therefore it is a purpose of the Union for which the State cannot legislate.
It was conceded by Mr. Rajinder Narain, Counsel for 871 the Respondent, that there is no duty cast upon the Union to provide accommodation for the consulate staff, and this must be so, when we remember that the routine duties of a Consul in modern times are to protect the interests and promote the commercial affairs of the State which he represents, and that his powers, privileges and immunities are not analogous to those of an ambassador.
The trade and commerce of the State which appoints him with the State in which he is located are his primary concern.
The State of Bombay is primarily interested in its own trade and commerce and in the efficient discharge of his duties by the foreign consul functioning within the State.
We are inclined to regard the purpose for which the requisition was made in this case more as a State purpose than as a Union purpose.
In any event, as already pointed out, "other public purpose" is a distinct category for which the State of Bombay can legislate, as the acquisition or requisitioning of property except for the purposes of the Union, is within its competence under item 36 of the State List.
There is another way of looking at the question involved.
An undertaking may have three different facets or aspects, and may serve the purpose of a State, the purpose of the Union and a general public purpose.
Even if one may regard the requisition of a room for the accommodation of a member of a Consulate as one appertaining to a Union purpose, it does not necessarily cease to be a State purpose or a gene ral public purpose.
In this view also, the requisition in this case must be held to have been validly made.
For the reasons given above, the appeal is allowed and the order of Tendolkar J. is restored with costs payable to the appellant by the respondent throughout.

summary/full:
Held, that the Government of Bombay was entitled, under clause (a) of sub section (4) of section 6 of the Bombay Land Requisition Act, 1948 (Bombay Act XXXIII of 1948) to requisition as for a public purpose, certain premises for 'housing a member of the staff of a foreign consulate '.
The purpose for which the requisition was made was a "public purpose" within the meaning of the Act; and the requisition was made in this case more as a State purpose than as a Union purpose.
In any event "other public purpose", is a category distinct from "Union purpose" and "State purpose" and the acquisition or requisitioning of property by the State except for the purpose of the Union, is within its competence under item 36 of the State List.
An undertaking may have three different facets or aspects and may serve the purpose of a State, the purpose of the Union and a general public purpose.
Even if one may regard the requisition of a room for the accommodation of a member of a consulate as one appertaining to a Union purpose, it does not necessarily cease to be a State purpose or a general public purpose.
Therefore on this view also, the requisition in the present case must be held to have been validly made.
Courts should lean against a construction which would render words in a statute mere surplusage.


judgement:
l Appeals Nos.
487 488 of 1976.
(Appeal by Special Leave from the Judgment and Order 19.12.1973 of the Gujarat High Court in Civil Revision Application No. 540 and 678 of 1970).
S.K. Dholakia and R.C. Bhatia, for the appellants.
R.P. Bhatt and H.S. Parihar for 1.
N. Shroff, for the re spondent.
The Judgment of the Court was delivered by UNTWALIA, J.
In these appeals by special leave the ques tion which fails for our determination is whether the deci sion of a Bench of this Court consisting of two learned Judges in Phul Rani & Ors.
vs Naubat Rai Ahluwalia(1) is correct.
If not, whether the appellants are entitled to get a decree for eviction in respect of the suit premises against the defendant respondent.
Thakordas Bhagwandas the father of the three appellants was owner of the suit premises.
He was a partner in a partner ship firm styled as Jai Hind Silk Weaving Works.
There were three more partners in the firm one of whom was Shantilal Thakordas, appellant No. 1, son of Thakordas Bhagwandas.
The other two were outsiders.
The suit was filed against respondent Chimanlal Maganlal Telwala for his eviction from the premises on several grounds.
The only ground which need to be mentioned for the purpose of the disposal of this appeal is Thakordas 's claim of requiring the premise.
reasonably and bona fide for occupation by himself within the meaning of section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
The necessity pleaded by the original plaintiff was that he required the premises for the use of the partnership firm aforesaid in which he was a partner.
The Trial Court decreed the suit in part on April 30, 1965 and passed a decree for eviction of the tenant from a portion of the suit premises.
Both sides went up in appeal before the First Appellate Court.
Thakordas was dead and his heirs, namely, the present appel lants were the appellants in one appeal and respondents in the other.
The first Appellate Court by its judgment dated November 10, 2966 maintained the partial decree made by the Trial Court with slight modification.
Both the parties went in revision before the Gujarat High Court.
The High Court set aside the decree dated November 10, 1966 of the First Appellate Court and remanded the case to it for a fresh disposal of the appeal after trying out an additional issue of comparative hardship of the landlord and the tenant as also the question as to whether the substituted heirs of the original plaintiff required the premises reasonably and bona fide for their occupation.
The first Appellate Court after remand again passed a decree for eviction from a portion of the suit premises on March 31, 1970.
Two (1) ; 343 revisions were taken to the High Court one by the appel lants and the other by the respondent.
Following the decision of this Court in Phul Rani 's case (supra) the High Court allowed the respondent 's revision, rejected that of the appellants and dismissed their suit for eviction in toto.
Hence these appeals.
The foremost and the first question urged before us by Mr. Dholakia was that Phul Rani 's case was not correctly decided.
We agree with this contention and say with respect that we do not subscribe to the view expressed by the Bench of this Court in that case.
The original plaintiff in that case had filed the application for eviction under section 14(1)(e) of the Delhi Rent Control Act, 1958.
The application was dismissed in the first instance by the Additional Rent Controller, Delhi on the ground that the notices to quit were not valid.
Plaintiff filed an appeal but died during its pendency.
His widow, son and two married daughters and two children of a deceased daughter were allowed to be substituted by the Rent Control Tribu nal where the appeal was pending.
The case was remanded by the Tribunal and after remand the Additional Rent Controller held that some of the substituted persons require the prem ises bona fide for their occupation.
The tenant 's appeal to the Tribunal failed.
The High Court of Delhi on a fur ther appeal by the tenant took the view that the right to sue did not survive to the heirs of the plaintiff and on that ground it dismissed the ejectment application.
The case came up to this Court.
The view of the High Court was affirmed.
The relevant words of personal requirement of the premises in section 14(1)(e) of the Delhi Act are: "for occupation as a residence for himself and members of his family." The original plaintiff had pleaded: "The premises are required bonafide by the petitioner for occupation as a residence for him self and members of his family and that the peti tioner has no other reasonably suitable residential accommodation." This Court took the view: "Thus, the requirement pleaded in the eject ment application and on which the plaintiff has rounded his right to relief is his requirement, or to use an expression which will effectively bring out the real point, his personal requirement.
If the ejectment application succeeds we will forget for a moment that the plaintiff is dead the prem ises in the possession of the tenant may come to be occupied by the plaintiff and the members of his family but that does not make the requirement pleaded in the application any the less a personal requirement of the plaintiff.
That the members of his family must reside with him is his requirement, not theirs.
Such a personal cause of action must perish with the plaintiff.
" In our considered opinion in face of the wordings of section 14(1)(e) of the Delhi Act, the view expressed in Phul Rani 's case, as stated 6 114SCI/76 344 above, is not correct.
If the law permitted the eviction of the tenant for the requirement of the landlord "for occupation as a residence for himself and members of his family", ' then the requirement was both of the landlord and the members of his family.
On his death the right to sue did survive to the members of the family of the deceased landlord.
We are unable to take the view that the require ment Of the occupation of the members of the family of the original landlord was his requirement and ceased to be the requirement of the members of his family on his death. 'After the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and the occupation of the other members of the family.
Many of the substituted heirs of the deceased landlord were undoubtedly the members of his family and the two married daughters and the children of a deceased daughter in the circumstances could not be held to be not members of the family of the deceased landlord.
But even so the appellants cannot succeed in this ap peal.
Firstly it is doubtful whether the requirement of the premises by the landlord for occupation by the partnership firm in which he is a partner will be tantamount to "occupa tion by himself" i.e. by the landlord.
Certain decisions of some High Courts were brought to our notice taking the view that it is so.
We refrain from expressing our opinion in that regard.
We assume, as seems to have been the view of the High Court in this case, that the requirement of the premises for the use of a partnership firm by the landlord in which he is a partner is covered by section 13(1)(g) of the Bombay Act.
Yet on the facts of this case there is 'an insurmountable difficulty in the way of the appellants.
From the judgment dated March 31, 1970 of the First Appel late Court it would appear that on the death of Thakordas in June, 1965 a new partnership was constituted.
One of his sons Shantilal who was a partner from before was taken as a partner in the new partnership alongwith Thakordas 's another son Dhanvantlal Thakordas, appellant No. 2.
There were some outsider partners.
Harish Thakordas, appellant No. 3, a minor son of Thakordas had not been admitted to the benefits of the partnership.
He had, therefore, no interest in the partnership firm Jai Hind Silk Weaving Works.
The Appellate Court took the view that the .substituted plaintiffs wanted to use the suit premises for ,the purpose of godown for keeping the yarn clothes and machinery articles and also for a retail shop and show room of the partnership.
This in no sense could be the requirement of appellant Harish even assuming that it could be said tO be the requirement of his two cider brothers appellants 1 and 2.
In that view of the matter we have got to dismiss the appeal although Mr. Dholakia, learned counsel for the appellants succeeded in persuading us to differ from the ratio of Phul Rani 's case.
Counsel for the appellants endeavoured to bring their case within one of the exceptions noted in Phul Rani 's case.
He submitted that a decree had already been passed in favour of the original plaintiff by the Trial Court and that could not be disturbed on his death either in appeal or revision.
We do not accept the contention as sound or 345 correct.
In Phul Rani 's case no final opinion was expressed on this question.
Moreover, we find that on the earlier occasion the High Court had set aside the decree and re manded the suit to the First Appellate Court for a fresh decision.
There was, therefore, no decree in existence to attract the exception.
In the result the appeals fail and are dismissed but without costs.
P.H.P. Appeals dis missed.

summary/full:
Thakordas, father of 3 appellants, was the owner of the suit premises.
He was a partner in a firm which.
had 3 other partners.
One of the partners was appellant No. 1, the son of Thakordas and two partners were outsiders.
A suit for eviction was filed against the respondent on the ground that Thakordas required the premises for the said firm reasonably and bona fide within the meaning of section 13(1)(g) of the Bombay Rent Act, 1947.
The trial court passed a decree for eviction in respect of a portion of the premises.
Thereafter, Thakordas died and the present appellants who are his sons filed an appeal.
Likewise the tenant also filed an appeal.
Appellants No. 1 and 2 togeth er with some outsiders continued the firm.
However, appel lant No. 3 a minor son of Thakordas was not admitted to the benefit of the partnership.
The First Appellate Court confirmed the decree of the trial court.
The revision application filed by the tenant was allowed and one filed by the appellants was dismissed by the High Court relying on the decision of this Court in Phul Rani & Ors.
vs Naubat Rai Ahluwalia [19731 3 SCR 679.
In an appeal by special leave, the appellants contended: 1.
Phul Rahi 's case was not correctly decided and the right of Thakordas survived in favour of the appellants.
The requirement of the firm in which the landlord is a partner will be the requirement of the landlord.
Since the decree had already been passed in favour of Thakordas before his death it could not be disturbed on his death either in appeall or in revision.
Dismissing the appeal, HELD: (1) Phul Rani 's case was wrongly decided.
If the law permitted the eviction of the tenant for the require ments of the landlord "for occupation as a residence for himself and members of his family" then the requirement was both of the landlord and the members of his family.
On his death, the right to '.sue did survive to the members of the family of the deceased landlord.
After the death of the original landlord the senior member of his family takes his place, and is well competent to continue the suit for evic tion for his occupation and the occupation of the other members of the family.
[343 H, 344 A B] (2) It is doubtful whether the requirement of the prem ises by the landlord for occupation by the firm in which he is a partner will tantamount to occupation by himself.
Even if it is assumed that it will amount to occupation by the landlord, since in the new firm the minor son of Thakordas was not admitted to the benefits of the partnership he had no interest in the said firm.
Therefore, as far as appellant No. 3 is concerned, he could in no sense be said to require the premises.
[344 C G] (3) The conclusion in Phul Rani 's case that if a decree had been already passed in favour of the plaintiff that could not be disturbed on his death is not correctly decid ed.
In fact, no final opinion was expressed in Phul, Rani 's case on that question.
[344 H, 345 A] 342 Phul Rani & Ors.
vs Naubat Rai Ahluwalia [1973] 3 S.C.R. 679, overruled.


judgement:
Appeal No. 1298 of 1968.
Appeal by Special Leave from the Judgment and Order dated 22 9 67 of the Mysore High Court in Writ Petition No. 2190/67.
S.V. Gupte, S.S. Javali and B. Dutta, for the Appellant.
A.K. Verma (Mrs.) for M/s. J.B. Dadachanji and Co.,for Respondents 1 and 2.
The Judgment of the Court was delivered by KHANNA, J.
This is an appeal by special leave against the judgment of the Mysore High Court whereby the High Court dismissed petition under articles 226 and 227 filed by the appellants to challenge the order dated September 12, 1967 of the Mysore Revenue Appellate Tribunal (hereinafter re ferred to as the Tribunal).
The brief facts giving rise to this appeal are that the first resdent applied on April 22, 1959 to the Assistant Commissioner Bagalkot for the restoration of the Patilki/watan/lands survey Nos. 32/2, 54/2, and 49/2 under sections 11, 11A and 12 of the Bombay Hereditary Offi cers Act (hereinafter referred to as the Act).
Possession of those lands was sought on the ground that the appellants, who were strangers, had taken possession of the lands.
The Assistant 321 Commissioner, as per order dated August 11, 1960, accepted that application and directed that the possession of the lands be restored to the respondents.
Appeal filed by the appellants against that order was dismissed by the Deputy Commissioner as per order dated January 24, 1961.
The appellantas then went up in revision before the Tribunal.
The Tribunal as per order dated May 5, 1962 accepted the revision petition and held that the appellants were not strangers to the watan.
In arriving as this conclusion, the Tribunal held disagreeing with the Assistant Commissioner and the Deputy Commissioner that the watan had been acquired by Basangouda I.
The respondents challenged the order of the Tribunal by means of a writ petition.
The Writ petition filed by the respondents was accepted by the Mysore High Court as per judgment dated December 18, 1964, and it was held that it was not open to the Tribunal to reopen and set aside findings of fact in a revision petition.
The case was accordingly remitted to the Tribunal for fresh deci sion in the light of the observations of the High Court.
When the matter came up before the Tribunal after the above judgment of the High Court, the Tribunal as per order dated September 12, 1967 upheld the findings of the Assist ant Commissioner and the Deputy Commissioner that the watan had been acquired by Basangouda II and not by Basangouda I.
It may be stated that Basangouda I was the grandfa ther of Basangouda II and that unless it be shown that the watan had been acquired by Basangouda I, the appellant would have to be held strangers qua the lands in dispute.
The Tribunal accordingly dismissed the revision petition which had been filed by the appellants.
The appellants thereafter filed petition under articles 226 and 227 before the High Court and assailed the above order of the Tribunal.
The High Court dismissed the writ petition on the ground that the finding that the appellants were strangers to the watan was one of fact and it was not open to the High Court to reopen the concurrent findings of the Assistant Commission er, the Deputy Commissioner and the Tribunal in a writ petition.
In appeal before us Mr. Gupte on behalf of the appel lants has contended that the High Court was in error in not interfering with the order of the Tribunal whereby the revision petition filed by the appellants had been dis missed.
It is urged that the Tribunal in affirming the findings of the Assistant Commissioner and the Deputy Commissioner regarding the question of the appellants being strangers qua the land in dispute took a very restricted view of section 79 of the Act dealing with revision.
This contention, in our opinion, is not well founded.
The High Court at the time of the decision of the earlier writ peti tion on December 13, 1964 recorded a finding and gave direc tions to the Tribunal not to reopen the questions of fact in revision.
The Tribunal while passing the order dated Sep tember 12, 1967 complied with those directions of the High Court.
The appellants are bound by the judgment of the High Court and it is not open to them to go behind that judgment in this appeal.
No appeal wag filed against that judgment and it has become final.
It is well settled that princi ples of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subse quent 322 stage of the same proceedings.
Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding.
In view of the High Court judgment dated December 18, 1964, the Tribunal while passing the order dated September 12, 1967, disposing of the revision petition filed by the appellant, could not reopen the questions of fact which had been decided by the Assistant Commissioner and the Deputy Commissioner.
The High Court, in our opinion, was right in holding in the judgment under appeal that the concurrent findings of fact arrived at by the Assistant Commissioner, the Deputy Commissioner and the Tribunal cannot be set aside in the writ petition.
The appeal consequently fails and is dismissed but in the cir cumstances with no order as to costs.
M.R. Appeal dismissed.

summary/full:
The respondent sought possession of some land, on the ground that the appellants who were strangers, had occupied it.
The Assistant Commissioner accepted their claim and directed that the possession of the disputed land be re stored to them.
The appellants ' appeal was dismissed by the Deputy Commissioner.
but their revision petition was accept ed by the Mysore Revenue Appellate Tribunal.
The High Court allowed the writ petition of the respondents.
direct ing the Tribunal not to reopen the questions of fact in revision.
The matter was remanded and the Tribunal then upheld the findings of the Assistant and Deputy Commission ers, and dismissed the revision petition.
The appellant flied a writ petition which was dismissed by the High Court.
Dismissing the appeal, the Court, HELD: (1) The concurrent findings of fact arrived at by the Assistant Commissioner the Deputy Commissioner and the Tribunal cannot be set aside in the writ petition.
[322 B C] (2) Principles of res judicata can be invoked not only in separate subsequent proceedings, they can also get at tracted in subsequent stage of the same proceedings.
Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceed ings.
[321 H, 322 A]


judgement:
Appeal No. 623 of 1975.
From the Judgment and Order dated 25 6 74 of the Karna taka 'High Court in Civil Revision No 1981/73.
S.S. JavaIi and B.P. Singh, for the Appellants.
S.V. Gupte and K.N. Bhatt, for the Respondent.
The Judgment of the Court was delivered by RAY, C.J.
This appeal by special leave is from the judgment .dated 25 June, 1974 of the Karnataka High Court.
The principal question in this appeal whether section 107 of the Karnataka Land Reforms Act, 1961 applies to the land in suit which was leased to the respondent.
A large plot of land comprising an area of about 20 acres popularly known as "The Chamaraja Sewage Farm" situate in the city of Bangalore belongs to the appellant Corpora tion.
The appellant :leased to the respondent by a regis tered lease dated 14 September, 270 1953 the aforementioned land for a period of 5 years on an annual rent of Rs. 13,555/ .
The respondent by notice was called upon to hand over possession of the land immediately after the expiry of the period of lease.
The respondent failed to deliver possession.
The reason why the appellant required that land is that the Corporation proposed a scheme for the development and construction of a new township on that area.
The respondent filed a suit for the grant of a permanent injunction restraining the appellant from interfering with the possession.
The Court upheld the contentions of the appellant that the lease had terminated by efflux of time.
The respondent 's 'suit was dismissed.
An appeal was pre ferred.
The appeal was dismissed on 21 August,.
The appellant then instituted the suit in appeal claim ing possession from the respondent.
The appellant contended that the respondent was a trespasser and claimed damages for unauthorised occupation.
The respondent contended that he was still a tenant.
The respondent claimed protection under the Mysore Tenants (Temporary Protection from Eviction) Act, 1961 being Act No. 15 of 1961.
Section 3 of the Mysore Tenants (Temporary Protection from Evic .
tion) Act, 1961 provided for prohibition against eviction.
The appellant obtained a decree in the suit.
The decree directed the respondent to deliver possession.
The respond ent preferred an ' appeal.
The High Court remanded the matter to the trial Court for assessment of damages.
Upon remand the respondent applied for the amendment of the written statement.
The respondent claimed protection under the Karnataka Land Reforms Act, 1961.
It may be stated here that the Mysore Tenants (Temporary Protection from Eviction) Act, 1961 ceased to be in force in March, 1966.
That is perhaps why the respondent made an applica tion for amendment of the written statement on 2 February 1973.
The respondent contended relying on section 133 of the Karnataka Land Reforms Act, 1961 that the.
suit should be stayed by the civil court and should be referred to the Tribunal for decision.
Section 112(B)(b) of the Karnataka Land Reforms Act, 1961 confers power on the Tribunal to decide inter alia whether a person is a tenant or not.
The respondent contended that he was a person who was deemed to be a tenant.
The appellant opposed the application for stay of the suit by the civil court and referring to the Tribunal for decision under the Karnataka Land Reforms Act, 1961.
The trial Court held that the land ' belonging to the appellant was exempted from the application of the provisions of the Land Reforms Act.
The trial Court dismissed the application of the respondent.
The respondent presented a revision petition t0 the High Court.
The High Court reversed the decision of the trial Court and directed the trial Court to refer such of the issues which are required to be.
decided by the Tribunal.
271 Counsel for the respondent contended that the respondent is a tenant within the meaning of the word "tenant" defined in section 2(34) of the Karnataka Land Reforms Act, 1961.
"Tenant" is defined to mean an agriculturist who cultivates personally the land he holds on lease from a landlord and includes (i) a person who is deemed to be a tenant under section 4 of the Karnataka Land Reforms Act, 1961, Section of the Karnataka Land Reforms Act, 1961 states that a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivat ed personally by the owner and if such person is not (a) a member of the owner 's family, or (b) a servant or a hired labourer on wages, or (c) a mortgage in possession It was, therefore, said that the respondent could raise the con tention whether the respondent was a tenant or not.
It was next contended that section 8 of the Karnataka Land Reforms Act, 1961 speaks of rent and rent is referable to tenant and therefore a dispute as to tenancy would be within the ambit of the Karnataka Land Reforms Act, 1961.
Section 107 of the Karnataka Land Reforms Act, 1961 states that subject to the provisions of section 110 nothing in this Act, except section 8 shall apply to lands, inter alia (iii) belonging to or held on lease or from a local authority.
There is no dispute that the land was given on lease by the local authority.
There is also no 'dispute that the land belongs to the local authority.
There is also no dispute that the lease was detrmined by efflux of time.
The question whether the respondent is a tenant or deemed to be a tenant does not at all arise because the tenancy came to an end.
The 'respondent thereafter was a trespasser.
Section 107 of the Karnataka Land Reforms Act, 1961 makes it quite clear that the only provision which applies, inter alia, to lands belonging to or hold on lease or from a local authority is section 8.
No other section of the Land Reforms Act applies to these lands.
Section 8 of the Karna taka Land Reforms Act, 1961 deals with rent.
The suit in the present case was not for recovery of rent.
The suit is for recovery of possession and for damages, for unauthorised occupation of the respondent.
Section 2 of the Karnataka Land Reforms Act, 1961 is not applicable.
Therefore, no question can be referred for determination by the Tribunal under section 133.
The Mysore Tenants (Temporary Protection from Eviction) Act, 1961 came into effect on 13 December, 1961.
The Mysore Tenants (Temporary Protection from Eviction) Act, 1961 remained in force till the month of March, 1966.
The re spondent could not draw any support from that Act for pro tection against eviction.
The land in question was outside the applicability of the Mysore Tenants (Temporary Protec tion from Eviction) Act, 1961.
Further the Act ceased to be in operation in 1966 and no question could be referred for determination as to whether the respondent was a tenant under the Mysore Tenants (Temporary Protection from Evic tion) Act, 1961 or not.
The trial Court in the present case rightly said that it could not be said that there was any dispute as to tenancy.
272 The respondent had filed a suit where he claimed to remain in possession.
The suit of the respondent was dismissed.
The appellant all along contended that the lease dated 14 September 1963 for a period of 5 years expired by efflux of time.
The appellant claimed possession on the ground Of unauthorised occupation and claimed damages against the respondent, who was a trespasser.
The High Court was clearly in error in referring to the Tribunal under the Karnataka Land Reforms Act 1961 determi nation of the plea taken by the respondent that he was pro tected by the Mysore Tenants (Temporary Protection from Eviction) Act 1961.
Counsel for the respondent did not support the judgment on that ground.
Counsel for the respondent contended that section 133 of the Karnataka Land Reforms Act 1961 excludes jurisdiction of Civil court in suits for possession where the defendant claims to be a tenant.
The plea of the respondent is utterly unsound.
Section 133 of the Karnataka Land Reforms Act 1961 cannot apply to lands which are held by a person on lease from the local authority or where the lease had ex pired and the local authority sues for possession on the ground that there is unauthorised occupation.
No provision of the Karnataka Land Reforms Act can be relied upon to contend that there should be protection against recovery of possession by the local authority.
For the foregoing reasons the judgment of the High Court is set aside.
In view of the fact that no costs were al lowed by the High Court, there will be no order as to costs.
M.R. Appeal allowed.

summary/full:
The respondent took the disputed land on lease for 5 years from the appellant Corporation, and held it unautho risedly after the lease period expired.
His suit for a permanent injunction against interference with his posses sion, was dismissed, and his appeal rejected.
The appellant then instituted the suit in appeal, claiming possession.
The suit was decreed and the respondent was directed to deliver possession.
On appeal, the High Court remanded the case.
Upon remand, the respondent applied for an amendment of his written statement, claiming protection under the Karnataka Land Reforms Act, 1961.
He also applied for a stay of the suit by the Civil Court, and for a reference to the Tribunal for deciding whether he was a tenant or not.
The application was dismissed, but on revision, the High Court reversed the decision.
The principal question in appeal before this Court was whether section 107 of the Karnataka Land Reforms Act, 1961, was applicable to the disputed land held by the respondent.
Allowing the appeal, the Court, HELD: Section 107 of the Karnataka Land Reforms Act, 1961 makes it .
quite clear that the only provision which applies to lands belonging to or held on lease or from a local authority is section 8.
There is no dispute that the lease was determined by efflux of time.
The question wheth er the respondent is a tenant or deemed to be a tenant does not arise because the tenancy came 'to an end.
Section 8 is not applicable.
Therefore no question can be referred for determination by the Tribunal under section 133.
Section 133 cannot apply where the lease had expired and the local authority sues for possession on the ground that there is unauthorised occupation.
[271 D, E, F, 272 C]


judgement:
N: Criminal Appeal Nos.
308310 of 1975.
(Appeals by Special Leave from the Judgments and Orders dated 18.1.1974 and 18.2.1974 of the Orissa High Court in Criminal Revision Nos.
708, 705 and 306/72 respectively).
336 G. Rath, Adv.
General for the State of Orissa and B. Parthasarthi, for the appellant.
Nemo for the respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
This group of 'three Criminal Appeals by Special Leave can be divided broadly into two categories: one category consisting of Criminal Appeals Nos. 308 & 309 of 1975 and the other, consisting of Criminal Appeal No. 310 of 1975.
We are disposing of them by a common judgment since the question which arises for consideration in both sets of appeals is as to what is the extent of the power of the Court to give consent to withdrawal of prosecution and discharge of the accused under Section 494 of the Criminal Procedure Code.
Taking up first Criminal Appeals Nos. 308 and 309 of 1975, both these criminal appeals arise out of prosecutions launched in respect of offences alleged to have been com mitted in the course of the same incident.
The police filed a case against nine respondents in Criminal Appeals No. 308 of 1975 charging them for offences under sections 143, 341 and 138 of the Indian Penal Code and Section 7 of the Criminal Law Amendment Act.
It appears that before the trial could proceed against the respondents, an application was made by Court Sub Inspector, who was in charge of the prosecution, praying for permission for withdrawal of the prosecution on two grounds.
One ground was that it was considered inexpedient to proceed with the case while the other was that the evidence collected during investigation was meagre to proceed against the respondents and that no useful purpose would be served by proceeding with the case against them.
The learned Magistrate took the view that it was not sufficient ground for according consent that the prosecution considered it inexpedient to proceed further with the case.
But so far as the second ground was con cerned, the learned Magistrate held that it was a valid ground and he did not rest this conclusion merely on the averment made by the Court Sub Inspector but he also perused the case diary for the purpose of satisfying himself that the evidence was not sufficient to proceed against the respondents.
The learned Magistrate felt that in this situation it was proper to accord consent for withdrawal of the prosecution, since compelling the State to go on with the prosecution in these circumstances would involve unnec essary expenditure and waste of public time, which could otherwise be profitably utilised for other judicial work.
The Learned Magistrate accordingly allowed the Court Sub Inspector to withdraw the prosecution and discharged the respondents under.
Section.
494 of the Criminal Procedure Code.
It seems that this order of the learned Magistrate accord ing consent to the withdrawal came to the notice of the High Court and prima facie taking the view that it was not a proper order, the High Court suo moto issued notices to the State as well as the respondents calling upon them to show cause why this order should not be quashed and set aside.
The matter was heard by a single judge of 337 the High Court and the learned judge quashed and Set aside the order passed by the learned Magistrate with the follow ing observations : "The Magistrate should have perused the case diary to see if there was sufficient material for framing of charge.
But that he obviously did not choose to do.
On the petition for withdrawal that it was inexpedient to proceed with the case he thought it prudent to acquit the accused persons whose prosecution would unnecessarily consume public money and time.
Obviously the learned lower court has missed the point and has not approached the subject as he ought to.
" The State thereupon preferred the present appeal with Special Leave obtained from this Court.
Now the law as to when consent to withdrawal of prosecution should be accorded under Section 494 of the Code of Criminal Procedure is well settled as a result of several decisions of this Court.
The first case in which this question came up for consideration was The State of Bihar vs Ram Naresh Pandey(1).
It was pointed out by this Court in that case that in granting consent to withdrawal from prosecution, the Court undoubtedly exercises judicial discretion, but it does not follow that the discretion is to be exercised only with refer ence to material gathered by the judicial method.
Having said this, the Court proceeded to enunciate the principles which should ;guide the exercise of this discretion: "In understanding and applying the Section, two main features thereof have to be kept in mind.
The initiative is that of the Public Prosecutor and what the Court has to do is only to give its con sent and not to determine any matter judicially." " .
The Judicial function, therefore, implicit in the exercise of judicial discretion for granting the consent should normally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate, reasons or purposes." " .
The Magistrate 's functions in these matters are not only supplementary, at a higher level, to those of the executive but are intended to prevent abuse." " . .
There is, however, a general concurrence at least in the later case that the application for consent may legitimately be made by the Public Prosecutor for reasons not confined to the judicial prospects of the prosecution." (1) 338 This Court had again occasion to consider this question in M.N. Sankarayarayanan Nair vs
P. V. Balakrishnan & Ors.
(1) where Jaganmohan Reddy, J. speaking on behalf of the Court, pointed out: "Though the Section is in general terms and does not circumscribe the powers of the Public Prosecutor to seek permission to withdraw from the prosecution the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice which may be either that it will not be able to produce sufficient evidence to sustain the charge or that subsequent information before prose cuting agency would falsify the prosecution evi dence or any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case.
Nevertheless it is the duty of the Court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the State go unpunished merely because the Government as a matter of gener al policy or expediency unconnected with its duty to prosecute offenders under the law, directs the public prosecutor to withdraw from the prosecution and the Public Prosecutor merely does so at the behest.
" It will, therefore, be seen that it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution.
He has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well rounded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution.
The ultimate guiding consideration must always be the interest of administration of justice and that is the touchstone on which the question must be determined whether the prosecution should be allowed to be withdrawn.
Now in the present case it is clear that according to the prosecution, the evidence collected during investigation was not sufficient to sustain the charge against the re spondent and the learned Magistrate was satisfied in regard to the truth of this averment made by the Court Sub Inspec tor.
It is difficult for us to understand how the High Court could possibly observe in its order that the Magis trate had not perused the ease diary when in terms the learned Magistrate has stated in his order that he had read the ease diary and it was after reading it that be was of the opinion that the averment of the prosecution that the evidence was not sufficient was not ill founded.
Then again it is difficult to comprehend how the High Court could possibly say that the learned Magistrate accorded consent to the withdrawal of the prosecution on the ground that it was inexpedient to proceed with (1)[1972] (2 ) S.C.R. 599. 339 the case, when, in so many terms, the learned Magistrate rejected that ground and granted consent only on the second ground based on inadequacy of evidence.
There is no doubt that the learned Magistrate was right in granting consent and the High Count committed a manifest error m setting aside the order of the learned Magistrate.
We accordingly allow Criminal Appeal No. 208 of 1975, set aside the order of High Court and restore that of the learned Magistrate.
Criminal Appeal No. 309 of 1975 also arises out of the same incident and the only difference between this Criminal Appeal and the earlier one is that the .respondents are different.
It is no doubt true that in this case the Court Sub Inspector based his application for consent to the withdrawal of the prosecution on the ground that it was administratively considered by the State inexpedient to proceed with the case and that, as already pointed out, would not be a valid ground.
But since both the cases arise out of the same incident and the evidence in regard to both is admittedly the same, we do not think that any useful purpose would be served by compelling the prosecution to proceed with the case against the respondents in the present case.
We accordingly allow Criminal Appeal No. 309 of 1975, set aside the order of the High Court and restore that of the learned Magistrate.
We now turn to Criminal Appeal No. 310 of 1975.
The case out of which this appeal arises was the result of a serious rivalry between two trade unions in an industrial undertak ing.
It seems that the respondents who are members of one trade union tried to break up, a procession which was organised by the rival trade union and this led to a clash resulting in injuries to various persons.
The respondents were charge sheeted for various offences arising out this incident and they were committed to the Court of sessions to stand trial for offences under sections 147, 148, 149, 307 and 324 I.P.C.
However, before the trial commenced, an application was made by the Public Prosecutor for the consent of the court to withdraw the prosecution against the respondents under section 494 of the Code of Criminal Proce dure.
There were five grounds on which the application was based.
Of them two only are important.
One was that the occurrence arose out of labour union trouble and since the date of the occurrence, there was industrial peace and harmony and the other was that withdrawal of the prosecu tion would help maintain cordiality between the rival trade unions.
The learned Sessions Judge was impressed by these two grounds and he granted consent to the withdrawal of the prosecution against the respondents.
The reasons which weighed with him may be stated in his own words as follows: "The grounds are that the incident had been the outcome of labour trouble.
which has now sub sided and that the Government, in order to maintain cordial relationship between the mineowners and good labour relationship wants to withdraw the case.
The case, as if I find, arose on account of labour union rivalry and the occurrence 340 place to sabotage a procession led by rival trade union.
The intention being to keep labour trouble in abeyance, I accord consent of this court for the withdrawal" . .
The High Court in this case too acted suo moto and issued notices.
to the State and the respondents calling upon them to show cause why the order of the learned Ses sions Judge should not be set aside.
The case was heard by the same learned judge who heard the earlier two criminal appeals and the learned judge set aside the order granting consent to the withdrawal of the prosecution and quashed the order of acquittal passed by the learned Magistrate and directed the sessions Judge to proceed with the trial of the case.
Hence the present appeal by the State with Special Leave obtained from this Court.
We have already discussed the principles which should govern cases of this kind where an application is made by the Public Prosecutor for grant of consent to the withdrawal of prosecution under section 494 of the Criminal Procedure Code.
We have pointed out that the paramount consideration in all these cases must be the interest of administration of justice.
No hard and fast rule can be laid down nor can any categories of cases be defined in which consent should be granted or refused.
It must ultimatelY depend on the facts and circumstances of each case in the light of what is necessary in order to promote the ends of justice, because the objective of every judicial process must be the attain ment of justice.
Now, in the present case, the application made by the Public Prosecutor clearly shows that the inci dent had arisen out of rivalry between two trade unions and since the date of the incident calm and peaceful atmosphere prevailed in the industrial undertaking.
In these circum stances, the State felt that it would not be conducive to the interest of justice to continue the prosecution against the respondents, since the prosecution with the possibility of conviction of the respondents would rouse feelings of bitterness and antagonism and disturb the calm and peaceful atmosphere prevailing in the industrial undertaking.
We cannot forget that ultimately every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution, the State should clearly be at liberty to withdraw from the prosecution.
We are, therefore, of the view that in the present case the learned ' Sessions fudge was right in granting consent to the withdrawal of the prosecution and the High Court was in error in setting aside the order o[ the learned Sessions Judge.
We accordingly allow Criminal Appeal No. 310 of 1975, set aside the order of the High Court and restore that of the learned Sessions.
Judge.

summary/full:
The principles that should be kept in mind by the Court when giving consent to the prosecution under section 494 Cr.
P.C. 1973, for withdrawing the prosecution against the accused, are that the prosecution is not able to produce sufficient evidence to sustain the charge, or that the prosecution does not appear to be well rounded, or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution.
It is not sufficient for the prosecution merely to say that it is not expedient to proceed with the prosecution.
The ultimate guiding consid eration must always be the interest of administration of justice and that is the touchstone on which the question must be determined.
No hard and fast rule can he laid down nor can any categories of cases be defined in which consent should be granted or refused.
It must ultimately depend on the facts and circumstances of each case in the light of what is necessary in order to promote the ends of justice, because, the objective of every judicial.
process must be the attainment of justice.
[338 C F] Where, therefore, the Magistrate granted permission for withdrawal, because the prosecution averred that the evidence collected during investigation was not sufficient to sustain the charge against the accused and after satisfy ing himself, by perusing the case diary, that the averment of the prosecution was justified, the High Court was in error in setting aside the order of the Magistrate.
In the instant case,.
the High Court also erred in observing that the Magistrate had not perused the case diary, and that the Magistrate had accorded consent for withdrawal of the prosecution by accepting the prosecution case that it was inexpedient to proceed with the case.
[338 H; 339 A] Where, in the connected case, the Magistrate gave his consent for withdrawal on the ground that it was adminis tratively considered by the State inexpedient to proceed with the case, though it was not a valid ground, no useful purpose would be served in compelling the prosecution to proceed with the case, because, both cases arose out of the same incident and the evidence in regard to both was admit tedly the same.
[339 C D] Where the application made by the prosecution for with drawal showed that the clash in which certain persons were injured arose out of rivalry between two trade unions, but that since the date of the incident calm and peace prevailed in the industrial undertaking, the Trial Court would be justified in granting consent for the withdrawal of the prosecution and the High Court would be in error in setting aside that order.
In the present case, the State felt that it would not be conducive to the interests of justice to continue the prosecution, since the prosecution or convic tion of the accused would rouse feelings of bitterness and antagonism and disturb the calm and peaceful atmosphere prevailing in the undertaking.
Ultimately, every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution.
the State should be at liberty to withdraw from the prosecution.
[340 D G]