judgement:
ivil Appeal Nos.
1386 91 of 1977 Appeals by Special leave Petitions from the Judgment and Order dated 1st December, 1976 of the Karnataka High Court in S.T.R.P. Nos.
24 29 of 1975.) S.T. Desai, S.J. Chandran & Mrs. A.K. Verma for the Appellant.
S.S. Javali and Swaraj Kaushal for the Respondent.
The Judgement of the Court was delivered by: SABYASACHI MUKHARJI, J.
These appeals by special leave are from the judgment and decision of the High Court of Karnataka dated 1st December, 1976 involving the questions of assessability of the appellant Sales Tax, Central as well as State.
While granting leave, this Court excluded the question whether the sales effected in the canteen by the appellant were assessable to Sales Tax.
By the impugned judgment, the High Court of Karnataka had dismissed several Writ Petitions against several orders being S.T.R.Ps.
Nos. 28, 27 and 29 of 1985 under the Karnataka Sales Tax Act, for the year 1960 61, 1961 62 and 1962 63 respectively and also three others namely; S.T.R. Ps.
Nos. 25, 26 and 24 of 1975, under the Central Sale Tax Act for the corresponding years respectively, at the instance of the present appellant.
These involved common questions of law and facts and were disposed of by a common judgment.
We also propose to do the 252 same.
As stated, one of the questions was about the taxability of the turn over in respect of the sales made in the canteen of the appellant company.
This question is not before us.
Before the Tribunal, the two following questions relevant for appeals before us were agitated, namely; (i) Whether the turnover apportioned from the job works undertaken by the appellant related to the sales of materials by the appellant to the Indian Air Force or other private parties, as the case may be, and as such whether these were taxable as held by the ower appellate authority.
(ii) Whether, in the case of job works undertaken from the private parties mainly on quotation on inclusive price basis, the Sales Tax authorities were right in apportioning a portion of the turnover as attributable towards sales of materials.
In order to appreciate the controversy in these appeals, it is necessary to state certain facts.
The appellant is a manufacturer of spare parts and accessories of various aircrafts and has also established facilities for assembling, servicing, repairing, overhauling of aircrafts, their instruments and accessories.
The Sales Tax authorities sought to subject to tax that portion of the total turnover of the appellant for the relevant years in question which was equivalent to the money value of the spare parts to the aircrafts which the appellant supplied to the Indian Air Force as a result of their use in the process of repairing, servicing and overhauling of the aircrafts, their instruments and accessories which were sent to the appellant for the aforesaid purposes during the relevant years in question.
At the outset, it is important to emphasise that the jobs done by the appellant were servicing, assembling, repairing and overhauling 'Airforce Planes ' entrusted to the appellant.
In the second appeal being Civil Appeal No. 1387 (NT) of 1977, the main job done was assembling; sales tax was levied in respect of the turnover for doing the same job.
These works were done on the basis of contracts or job orders issued from time to time.
While no contract directly concerning the repairing, servicing and overhauling of a specified aircraft, instrument or accessary in which the spare parts had been used in the execution of service contracts was on record, there is, however, a specimen contract that was entered into between the appellant and 253 I.A.F. being agreement dated 23rd June, 1951, hereinafter referred to as '1951 ' Contract '.
The agreement is described as "Contract for the flight servicing and maintenance of the H.Q. Training Command I.A.F. Communication Flight".
The agreement was between Hindustan Aircraft Limited, described in the agreement as the 'Contractor ' and the President of India, described in the agreement as the 'Owner '.
It may be mentioned that the Hindustan Aircraft Limited has later on become the appellant i.e. M/s Hindustan Aeronautics Limited.
As the contentions of the parties in these appeals centered on the question whether the contracts in question, the income of which has been subjected to sales tax, were works contracts only or were agreements to sell spare parts, it would be relevant to refer in detail to some of the clauses of the "1951 Contract".
The agreement states that the 'contractor ' agrees to accomplish for the 'owner ' the servicing and maintenance of the H.Q. Training Command, I.A.F. Communication Flight, and works required on visiting aircrafts, to the standard as specified in the said agreement at Bangalore or at any other place required by the 'owner '.
Then the specifications according to which the works had to be done were mentioned thereafter.
The agreement also provides that the works would be carried out by the contractor, and payment made by the owner "at Cost plus 10% profit basis" or at the contractor 's standard fixed rates, where applicable.
Sub clause (b) of clause 2 provides that any additional works to those specified in clause I, items (a), (b) and (c), authorised by Air Headquarters should also be charged for separately as per sub clause (a) of clause 2 of the agreement.
As the question of the price of the spares and materials is involved, it is necessary to set out clause 3 which deals with spares and materials: "Generally, the owner will provide the contractor with all the necessary spares and materials (other than expendable materials such as paints, dopes, cleaning rages etc.).
Where, however, there is delay in the supply of essential items, the contractor will provide those wherever possible either by purchase or manufacture, within an expenditure authorised by the owner 's Deputy Financial Adviser at the Contractor 's request from time to time.
All items provisioned by the contractor will be the property of the owner, and will be issued on Contract Loan.
The owner agrees to pay the contractor for provision of spares at the following rates: 254 (a) for items manufactured by the contractor Cost plus 10% (b) for items purchased from indigenous and overseas sources actual invoice price plus all other charges the contractor is called upon to pay, such as packing and shipping etc.
plus 5%.
" Regarding Technical advice and publications, clause 4 of the 1951 agreement stipulated that all relevant service publications and manuals would be made available on loan to the contractor through I.A.F. Liaison Officer attached to the contractor 's Factory.
Regarding delivery, it was provided by clause 5 that subject to the owner 's compliance with clause 3, the contractor would keep ready for flight as many of the available planes as possible.
Clause 6 of 1951 agreement deals with terms of payment and stipulated that the contractor would submit to the owner monthly bills as per clause 2(a) supported by cost analysis showing, inter alia, of certain details and the details are set out in different sub clause mentioned in clause 6 of the agreement.
The other incidental provisions of clause 6 are not relevant for the controversy in question.
Clause 7 of the 1951 agreement dealt with indemnity for loss or damage which is not relevant for our purposes.
Clause 8 dealt with right to cancel the agreement, Clauses 9 and 10 provided for 'inspection".
Clause 11 prohibited the contractor, the appellant, from in any way assigning or transferring any rights or benefits under the agreement except with the previous consent of the owner in writing.
Clauses 12, 13 and 14 are also not relevant for our purpose.
We may mention that reliance was also placed on behalf of the appellant on an affidavit by one Shri section Krishna Murthy who was the Sales Officer of the Overhaul Division of the Appellant Company and which affidavit had been filed before the Sales Tax Tribunal in Mysore, Bangalore.
In the said affidavit, he had described the nature of the works done by the appellant in connection with repairs and had mentioned that two types of works were done; one was overhaul of Aircrafts, accessories and equipments thereof, and the other known as fixed quotation basis.
It is not necessary to refer to the said affidavit in detail.
He had mentioned in the said affidavit the procedure for preparing the bills and had stated that after the works were completed, a final inspection of the repairs done was checked by the Works Inspection Department, whereafter delivery orders were prepared and thereafter he described how bills were prepared thus: 255 "After the work is completed, a final Inspection of the repair done is checked by the Works Inspection Department, whereafter a delivery order is prepared and the billing section prepares the bill.
As it is required by the Defence Audit purposes, the labour charges and material charges are shown which is worked out on cost plus 10% basis.
In the case of private Aircraft owners and other airlines for a similar contract for repairs, we give a fixed price quotation unlike in the case of repairs to Defence Aircraft which by virtue of the contract is on cost plus 10% basis, wherein a break up had to be given as aforementioned for purposes of defence audit.
" The Sales Tax authorities sought to tax that portion of the total turnover of the appellant for the relevant years in question which was equivalent to the money value of the spare parts of the aircrafts which it had supplied to the Indian Air Force as a result of their use in the process of repairing, servicing and over hauling of the aircrafts, their instruments and accessories which were sent to the appellant for the said purpose during the relevant years in question.
The works undertaken and executed by the appellant in assembling, repairing, servicing and overhauling were on cost plus 10% profit basis as well as on fixed inclusive quotation basis.
The appellant with regard to the latter types of contracts succeeded before the Appellate Tribunal who held such contracts to be exclusively works contract.
The controversy before the High Court and before us in these appeals is only with regard to the first category of contracts, which the Appellate Tribunal held to be composite contracts.
The appellant contended that so far as the supply of spare parts to the Indian Air Force during the relevant period was concerned, there had been no sale of the spare parts to the I.A.F., for that spare parts in question were used during the course of and in the process of execution of the works contracts relating to the servicing, repairing and overhauling of the aircrafts, their instruments and accessories and that there was no sale contracts as such in pursuance whereof, the spare parts in question could be said to have been sold to the I.A.F.
The Tribunal had negatives the contention of the appellant and the appellant had gone up in revision before the High Court.
The High Court was of the view that whether the supply of the spare parts by the appellant would amount to sale or not would depend on the fact as to whether there was a sale contract between the appellant and the I.A.F. in that regard.
The High Court was of the view that, 256 in the light of certain documents which we would also incidentally note, it could not be said that supply of spare parts and other materials was not in contemplation of the contracting parties and the spare parts in question became the property of the owner i.e. I.A.F. only by way of accretion to the aircrafts for being used in the process of executing the contracts and not as a result of the agreement between the contracting parties.
The High Court referred to certain decision and came to the conclusion that in the present case what was sought to be brought within the purview of Sales Tax Act was the cost to the vendees of the spare parts supplied by the appellant.
In such a case, the High Court was of the view that the stage at which the property therein passed to the owner was not material.
What was material was as to whether the goods in question were the property of the assessee before the same became the property of the President of India under the contracts.
Dealing with the contention of the parties, the High Court was of the view that in providing separately the basis of payment of spare parts in the contracts, the intention of the parties was clear and unambiguous i.e. the parties clearly agreed to the sale of spare parts according to the contract.
Certain invoices were placed on record, namely, the Invoice dated 28.2.1962 being Invoice No. HT2/CAT.B/F 1 which indicated separately the labour charges being Rs. 26,837.69 and materials and spares used by the appellant as per schedule attached as Rs. 32,187.92, reference was also made to another Invoice dated 31.3.1962 which had also mentioned separately labour charges as well as the costs of the materials and spares.
To the same effect was another Invoice dated 28 2 1962.
The Tribunal was of the view that these Invoices supported the conclusion that the labour charges had been separately itemised from the price of the spare parts and whenever any spare parts had been provided by the I.A.F. authorities, the price thereof had been deducted indicating that the spare parts supplied by the appellant.
For the aforesaid reasons as indicated in the judgment of the High Court, the High Court was of the view that sale of spare parts was clearly in contemplation of the parties and the documents in question constituted composite contracts, one relating to the remuneration for the services rendered and the other for the sale of goods.
In that view of the matter, the High Court was of the view that the Tribunal was right in dismissing the appeals of the appellant on the particular turnover of the appellant.
The question before us, is, therefore, whether the payments made for spare parts in executing the contracts in question were also 257 sales contracts or were part of one contract of executing the works contracts.
On behalf of the appellant, it was urged before us referring to the terms of the contracts which are more or less in the form of "1951 contract" mentioned before that the contracts in question manifested the clear intention that in substance and reality these were agreements to carry out works of assembling, repairs, servicing and overhauling of the aircrafts being the property of the Indian Air Force.
We must emphasise that the property in such planes was and had all along continued to remain with the Air Force.
Relevant contracts and the whole transactions between the parties indicate that the materials used in the process of such assembling, repairs, servicing and overhauling were either supplied by the Indian Air Force or were of the appellant, the bulk was supplied by the Govt.
The question therefore is, was it the intention to do the works undertaken as one job or not.
Counsel on behalf, of the appellant contended that that was the intention and there was no intention whatever to pass any property in any chattel qua chattel.
It is well settled that the difference between contract of service and contract for sale of goods, is, that in the former, there is in the person performing work or rendering service no property in the things produced as a whole notwithstanding that a part or even the whole of materials used by him had been his property.
In the case of a contract for sale, the thing produced as a whole has individual existence as the sole property of the party who produced it some time before delivery and the property therein passed only under the contract relating thereto to the other party for price.
It is necessary, therefore, in every case for the courts to find out whether in essence there was any agreement to work for a stipulated consideration.
If that was so, it would not be a sale because even if some sale may be extracted that would not affect the true position.
Merely showing in the bills or invoice, it was contended on behalf of the appellant, the value of materials used in the job would not render the contract as one of sale.
The nature and type of the transactions are important and determinative factors.
What is necessary to find out, in our opinion, is the dominant object.
It was urged before us that contract of sale is one whose main object was to transfer property in and the delivery of the possession of a chattel to the buyer.
If the principal object of works undertaken by the party was a transfer of a chattle qua chattel, the contract would 258 be for sale.
It is necessary to find out whether the contract was primarily a contract for supply of materials at a price agreed to between the parties and the work or service rendered is only incidental to the execution of the contract.
Mere transfer of property in goods used in the performance of a contract was not sufficient.
To constitute a sale, there must be an agreement expressed or implied relating to the sale of goods and the performance of the agreement by passing of title in those very goods.
On behalf of the respondent, counsel contended that the spare parts in question had been supplied by the appellant against payment of price in pursuance of specific stipulations in the contracts.
He, therefore, urged that the transactions constituted sale which was liable to tax.
It was highlighted that the appellant manufactured and did business in the sale of materials in question.
The fact that the appellant was a dealer in the spare parts supplied to the I.A.F. and other parties, is undisputed.
It was emphasised that the appellant supplied the spare parts in question to I.A.F. against payment of price and it was submitted that it was not the case of the appellant nor there was any material on record, to suggest that the spare parts in question were either manufactured or supplied as being incidental to the work of servicing and maintenance entrusted to the appellant or were loaned to the I.A.F. It was urged on behalf of the revenue that the correspondence on record and bills and invoices clearly demonstrated the intention of the parties to incorporate a separate agreement for the sale of spare parts by the appellant in the agreement.
According to counsel, the contract of 1951 consisted of two separate agreements.
The parties had consciously treated the works and the supply of materials, separately and our attention was drawn to the clauses dealing with the same.
It was urged that the contract contained separate stipulation for the work and for the supply of spare parts.
It was also emphasised that the appellant was a regular manufacturer of the spare parts involved in the case of supply to the I.A.F. As has been clearly stated in the Halsbury 's Laws of England, Third Edition, Volume 34, a contract of sale of goods must be distinguished from a contract for work and labour.
The distinction is often a fine one.
A contract of sale is a contract whose main object is the transfer of the property in, and the delivery of the possession of, a chattel as a chattel to the buyer.
Where however the main object of work undertaken by the payee of the price was not the transfer of chattel qua chattel, the contract is one of work and labour.
The 259 test, is, whether or not the work and labour bestowed end in anything that can properly become the subject of sale neither the ownership of the materials, nor the value of the skill and labour as compared with the value of the materials, is conclusive, although such matters may be taken into consideration in determining, in the circumstances of a particular case, whether the contract was in substance one for work and labour and one for the sale of a chattel.
In the case of Sentinel Rolling Shutters & Engineering Company Pvt. Ltd. vs The Commissioner of Sales Tax,(1) this Court reiterated that tests indicated in several decisions of this Court to distinguish between a contract for sales and a contract for work and labour were not exhaustive and did not lay down any rigid or inflexible rule applicable alike to all transactions.
These did not give any magic formula by the application of which one could say in every case whether a contract was a contract for sale or a contract for work and labour.
These merely focused on one or the other aspect of the transaction and afforded some guidance in determining the question, but basically and primarily, whether a particular contract was one for sale of goods or for work and labour depended upon the main object of the parties gathered from the terms of the contract, the circumstances of the transactions and the custom of the trade.
In that case, the assessee who was carrying on business as engineers, contractors, manufacturers and fabricators had entered into a contract with a company for fabrication, supply, erection and installation of two rolling shutters in two sheds belonging to that company for a price which was inclusive of charges for "erection at site".
The contract provided, among others, that the delivery of the goods was to be ex works and once the delivery was effected, rejection claims would not be entertained.
All masonry works required before or after erection were to be carried out by the company at its own cost.
Payments were to be made on overall measurements which should be checked by the company before installation.
The actual transportation charges were to be in addition to the price stipulated in the contract and the terms of payment provided "25 per cent advance, 65 per cent against delivery and remaining after completion of erection and handing over of the shutters to the satisfaction" of the company.
The assessee had submitted the bill to the company after completion of the fabrication of the rolling shutters, but before they were erected and installed at the premises of the company.
On the question whether the contract was a contract for sale or a contract for work and labour, the High Court had held, 260 agreeing with the Sales Tax Tribunal, that the contract was a divisible contract, which essentially consisted of two contracts, one for the supply of rolling shutters for money and the other for service and labour and that the amount payable at the stage of delivery represented the sale price of rolling shutters and it was liable to sales tax.
On appeal, by special leave, this Court held that the contract was one single and indivisible contract and the erection and installation of the rolling shutters was as much a fundamental part of the contract as the fabrication and supply.
The contract was clearly and indisputably a contract for work and labour and not a contract for sale.
It cannot be said as a general proposition that in every case of works contract, there is necessarily implied the sale of the component parts which go to make up the repair.
That question would naturally depend upon the facts and circumstances of each case.
Mere passing of property in an article or commodity during the course of performance of the transaction in question does not render the transaction to be transaction of sale.
Even in a contract purely of works or service, it is possible that articles may have to be used by the person executing the work, and property in such articles or materials may pass to the other party.
That would not necessarily convert the contract into one of sale of those materials.
In every case, the Court would have to find out what was the primary object of the transaction and the intention of the parties while entering into it.
It may in some cases be that even while entering into the contract of work or even service, parties might enter into separate agreements, one of work and service and the other of sale and purchase of materials to be used in the course of executing the work or performing the service.
But, then in such cases the transaction would not be one and indivisible, but would fall into two separate agreements.
One of work or service and the other of sale.
These principles can be deduced from the decision of this Court in The State of Himachal Pradesh and Others vs Associated Hotels of India Ltd.(1) In the decision in the case of The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd.
,(2) this Court had stated that according to the law, both of England and of India, in order to constitute a sale, it is necessary that there should be an agreement between the parties for the purpose of transferring title to goods, which of course pre supposed capacity to contract, that it must be supported by money consideration that as a result of transaction the property must actually pass in the goods.
Unless all 261 these elements were present, there would be no sale.
In the instant case it is indisputable as we have referred to the "1951 Contract" and the substance of the invoices and, it is not disputed that the other works orders were on the basis of the principles agreed by the 1951 agreement set out hereinbefore, that the transactions were as a result of composite contracts involving the execution of works viz. overhauling, repairing, servicing and in one year assembling, air force planes, entrusted to the appellant.
The question, is, whether this composite contract was divisible into one exclusively for work and labour and another for sale of materials.
The fact that there is supply of materials for the purpose of execution of the work contracts undertaken by the appellant cannot be disputed.
But the question then arises whether that can be taken as pursuant to a distinct contract with a view to execute the work undertaken.
In this connection we have already mentioned the principles enunciated by the statement of Halsbury 's Laws of England, Third Edition Volume 34 pages 6 and 7 para 3.
It would be appropriate, in our opinion, because it clearly enunciates the principles, to refer to the statement of law in Benjamin 's Treatise on the Law of Sale of Personal Property with reference to the French Code and Civil Law,(1) where the learned Editor has deduced the principles that would be applicable in deciding the controversy before us.
These principles are: "1.
A contract whereby a chattel is to be made and affixed by the workman to land or to another chattel before the property therein is to pass, is not a contract of sale, but a contract for work, labour and materials, for the contract does not contemplate the delivery of a chattel as such.
When a chattel is to be made an ultimately delivered by a workman to his employer, the question whether the contract is one of sale or of a bailment for work to be done depends upon whether previously to the completion of the chattel the property in its materials was vested in the workman or in his employer.
If the intention and result of the contract is to transfer for a price property in which the transferee had no previous property then the contract is a contract of sale.
262 Where, however, the passing of property is merely ancillary to the contract for the performance of work such a contract does not thereby become a contract of sale.
Accordingly (i) Where the employer delivers to a workman either all or the principal materials of a chattel on which the workman agrees to do work, there is a bailment by the employer, and a contract for work and labour, or for work, labour and materials (as the case may be), by the workman.
Materials added by the workman, on being affixed to or blended with the employer 's materials thereupon vest in the employer by accession and not under any contract of sale.
(ii) Where the workman supplies either all or the principal materials, the contract is a contract for sale of the completed chattel, and any materials supplied by the employer when added to the workman 's materials vest in the workman by accession.
" The learned Editor has emphasised that where passing of property was merely ancillary to the contract for the purpose of the work, such a contract does not thereby become a contract for sale.
This principle can also be deduced from the observations of the decision of Robinson vs Graves.(1) Whether a given transaction is a works contract pure and simple or it involves sale of goods also is of course a mixed question of law and fact depending upon the facts of each case.
We have noted in the instant case the contracts in question.
It is true, as was emphasised on behalf of the respondent and has been emphasised by the Tribunal as well as the Karnataka High Court, that it cannot be said that parties did not contemplate and apply their minds to the question of spare parts and other materials necessary for the execution of the works.
It was emphasised on behalf of the respondent and on this aspect the decision of the High Court of Karnataka as well as the 263 decision of the Tribunal were relied upon to stress the point that the price separately provided as cost plus 10%.
The bills and the invoices were also made separately indicating the prices involved in these transactions.
But it is important to emphasise that clause I of the contract was to accomplish for the owner the servicing and maintenance of the Headquarters Training Command I.A.F. Communication Flight, and works required on visiting aircrafts according to the standard as specified hereunder as these air planes were necessary to be kept in readiness and that as there should be no delay in getting the materials, the contract in detail provided that the works would be carried out by the contractor and payment to be made by the owner at cost plus 10% profit or at the contractor 's standard fix rates.
The additional work that would be required as specified in clause 1 in the different sub clauses was also to be charged as in clause 2(a).
Regarding spares and materials, the idea was that the owner would provide to the contractor all the necessary spares and materials except expendable materials, such as paints, dopes, cleaning rages etc.
and it may be mentioned that these were necessary tools in carrying out the works entrusted to the appellant.
It also stipulated in order to ensure that there should be no delay in keeping the air planes ready at all times, that in cases of delay in supply of materials, the contractor would provide those from wherever possible, either by purchase or manufacture but the expenditure to be incurred for the same should be authorised by the owner 's Deputy Financial Adviser at the contractor 's request from time to time.
Therefore it emphasises that it was the expenditure limited not only for the jobs to be done but expenditure to be incurred for providing the materials for the jobs to be done were subject to the approval and sanction of the Government.
The expressions following thereafter in clause 3 are, in our opinion, significant and indicative of the real intention of the parties.
These expressions are "All items provisioned by the contractor will be the property of the owner, and will be issued on Contract Loan." (Emphasis supplied).
The expression "Contract Loan" is not an expression of article It has no generally accepted meaning in dictionary, legal or otherwise, as such.
There is no definition or meaning of this expression provided in the contract between the parties or in the correspondence between the parties in connection with the execution of the works.
But in our opinion, these expressions indicate that the 'provisions ' which would be required for carrying out the contracts, which could not be anticipated before the beginning or in execution of the contracts will be the property of the owner i.e. that though gathered and procured or 264 manufactured by the contractor, the contractor will have no property in the said goods or spares or materials and would not be able to either dispose of or deal with those but these will be treated for the purpose of there contracts to be the property of the owner and, then the contract stipulates that on fictional basis these will be lent out to the contractor for being used in the execution of the jobs entrusted to the contractor.
It was urged before us that the contractor in this case the appellant is also a dealer and manufacturer of these spares and materials, to emphasise that these materials were not prepared or produced or procured by the contractor on ad hoc basis for the purpose of execution of the jobs entrusted to the contractor.
This position is indisputably true.
But it has also to be emphasised that what spare parts or materials that would be required were not identified goods and it was submitted that these would be treated to be the goods of the owner, and given on 'Contract Loan '.
It appears to us that the idea was that the moment these spares and materials were required for the jobs entrusted to the appellant and there was delay in supplying these spare parts and materials, the contractor would be free to procure or obtain these spares and materials either by manufacturing or by purchase from the market local or foreign, these goods to be identified and would be treated by the operation of the contract to be the goods of the owner of the planes.
It is true as was emphasised that in order to be given out on loan by the 'owner ' to the contractor, the 'owner ' must have property in the spares and materials in question.
But the 'owner ', i.e. the Government, in our opinion, in the context of 1951 agreement, and it is indisputable that the transactions in this case were done on the basis of the agreement of 1951, became the owner of the property the moment the goods were identified and there was delay or inability on the part of the government in supplying spares and materials.
It was emphasised that not a consolidated price was contemplated but what was contemplated was separate price for the materials.
Indeed the invoices relied upon by the parties in the specific works orders indicated those were charged for separately.
The basis for this has been explained in the affidavit of Shri Krishna Murthy mentioned hereinbefore.
The affidavit was before the authorities below as also before the High Court of Karnataka and there is no dispute as to the correctness of the statements made in the said affidavit.
In the case of Commissioner of Commercial Taxes, Mysore, Bangalore vs Hindustan Aeronautics Ltd.,(1) this Court construed the 265 correspondence between Railway Board and the respondent assessee, which correspondence to our opinion has a ring of similarity to the terms and conditions of the present transaction, for the manufacture and supply of railway coaches, and the indemnity bond in respect of the contract.
It was held by this Court that the answer to the question whether a contract is a works contract or a contract of sale depends upon the construction of the terms of the contract in the light of surrounding circumstances.
It was held that when all the materials used in the construction of a coach belonged to the Railways there could not be any sale of the coach itself.
It was a pure works contract, and the difference between the price of a coach and the cost of materials being only the cost of service rendered by the assessee.
This Court emphasised that whether the wheel sets and under frames were supplied free of cost or not made no essential difference.
The material and wage escalator and adjustments regarding final price mentioned in the contract were neutral factors.
The facts which should be emphasised in transactions in question with which we are concerned, that the transactions related to the entrustment of the maintenance of the airplanes of the I.A.F. These had to be kept ready for all times to meet all situations.
All avoidable and conceivable delays were planned to be eliminated and in the background of this second factor, it is further to be emphasised that for the bulk of the materials, the Government undertook to supply the spares and materials and it is only in those cases where these materials could not be supplied or provided for by the Government or there was delay, that it was stipulated that these could be procured or manufactured by the contractor within the prices sanctioned by the Government.
and after being procured or manufactured by the contractor, these could not be used for any purpose except in the execution of the jobs entrusted to the contractor.
The contractor had no disposing power or property in these spares and materials.
The fact that these materials were separately placed at cost plus 10% profit were to ensure quick and proper execution of the works and were like the railway coaches ' case neutral factors.
This conclusion is strengthened by the expressions we have extracted from the 1951 Contract itself.
It is manifest in the instant case from the terms of the contracts and transactions, as in the railway coaches case and as was emphasised by Sikri, C.J. that the property in the materials which are used in the execution of the jobs entrusted to the contractor in this case became 266 the property of the Government before it was used.
It is also manifest that there was no possibility of any other materials, to be used for the construction as would be manifest from the affidavit and the correspondence and the invoices, and works orders in these transactions.
Emphasis was placed before the Tribunal as well as before the High Court of Karnataka on the case of State of Gujarat vs Variety Buildings(1) where the court was concerned with the 'bus bodies '.
In the 'bus bodies ' case, the assessee contractor had continued to have the ownership rights and it was held that the 'bus body ' had to be transferred from the contractor to the other party as a result of contract for sale but in the instant case it is manifest that the specified spares and materials were not the properties of the contractor, in the sense that the contractor never had any ownership over these.
The conclusion arrived at by us is in consonance with the principles laid down by this Court in the case of Ram Singh & Sons Engineering Works vs Commissioner of Sales Tax, U.P.(2) For the reasons aforesaid, we are of the opinion that the High Court of Karnataka was not right in its conclusion on the taxability of the turnover of the spares parts and materials supplied in execution of appellant 's job works.
As a result except for the item on canteen sales which is not in dispute before us, these appeals are allowed.
The necessary adjustments in the assessments should be made.
In the facts and circumstances of these cases, the parties will bear their own costs throughout.
S.R. Appeal allowed.

summary/full:
The appellant is a manufacturer of spare parts and accessories of various aircrafts and has also established facilities for assembling, servicing, repairing, overhauling of aircrafts, their instruments and accessories.
The job done by the appellants were servicing, assembling, repairing and overhauling "Airforce planes" entrusted to them.
These works were done on the basis of contracts or job orders issued from time to time.
While on contract directly concerning the repairing servicing and overhauling of a specified aircraft, instrument or accessory in which the spare parts had been used in the execution of service contracts was on record, there was an agreement dated 23rd June 1951 described as "contract for the flight servicing and maintenance of the H.Q. Training Command I.A.F Communication Flight, "wherein the President of India has been described as the "owner" and the appellant as the contractor.
The agreement provided that the works would be carried out by the contractor and payment made by the owner "at cost plus 10% profit basis or at the contractor 's standard fixed rates, where applicable.
Under clause 3, the owner will provide the contractor with all the necessary spares and materials (other than expendable materials such as paints, dopes, cleaning rages etc.) and where however there was delay in the supply of the essential items, the contractor will provide those whenever possible by purchase or manufacture within expenditure authorised by the owner 's Deputy Financial Adviser at the contractor 's request from time to time.
The Sales Tax authorities sought to tax that portion of the total turnover of the appellant for the relevant years in question which was equivalent to the money value of the spare parts of the air crafts which it had supplied to the Indian Air Force as a result of their use in the process of repairing, servicing and overhauling of the aircrafts, their instruments and accessories which were sent to the appellant for the said purpose.
The Appellate Tribunal and the High Court held these to be composite contracts.
The High Court was of the view that sale of spare parts was clearly in contemplation of the parties and the documents in question constituted composite contracts, one relating to the remuneration for the services rendered and the other for the sale of goods.
Hence the appeals by special leave.
Allowing the appeal, the Court ^ HELD : 1:1 It is well settled that the difference between contract of 249 service and contract for sale of goods, is, that in the former, there is in the person performing work or rendering service no property in the things produced as a whole notwithstanding that a part or even the whole of materials used by him had been his property.
In the case of a contract for sale, the thing produced as a whole has individual existence as the sole property of the party who produced it some time before delivery and the property therein passed only under the contract relating thereto to the other party for price.
[257 D E] 1:2 It is necessary, therefore, in every case for the courts to find out whether in essence there was any agreement to work for a stipulated consideration.
If that was so, it would not be a sale because even if some sale may be extracted that would not affect the true position.
Merely showing in the bills or invoices, the value of materials used in the job would not render the contract as one of sales.
The nature and type of the transactions are important and determinative factor.
What is necessary to find out, is the dominant object.
[257 F G] 1:3 A contract of sale of goods must be distinguished from a contract for work and labour.
The distinction is often a fine one.
A contract of sale is a contract whose main object is the transfer of the property in, and the delivery of the possession of, a chattel as a chattel to the buyer.
Where however the main object of work undertaken by the payee of the price was not the transfer of chattel qua chattel, the contract is one of work and labour.
The test, is, whether or not the work and labour bestowed end in anything that can properly become the subject of sale; neither the ownership of the materials, nor the value of the skill and labour as compared with the value of the materials, is conclusive, although such matters may be taken into consideration in determining, in the circumstances of a particular case, whether the contract was in substance one for work and labour and one for the sale of a chattel.
[258 G H; 259 A B] 2:1.
The tests indicated in several decisions of this Court to distinguish between a contract for sale and a contract for work and labour were not exhaustive and did not lay down any rigid or inflexible rule applicable alike to all transactions.
These did not give any magic formula by the application of which one could say in every case whether a contract was a contract for sale or a contract for work and labour.
These merely focussed on one or the other aspect of the transaction and afforded some guidance in determining the question, but basically and primarily, whether a particular contract was one for sale of goods or for work and labour depended upon the main object of the parties gathered from the terms of the contract, the circumstances of the transactions and the custom of the trade.
[259 C D] Sentinel Rolling Shutters & Engineering Company Pvt. Ltd. vs The Commissioner of Sales Tax, 42 Sales Tax Cases 409; referred to.
2:2 It cannot be said as a general proposition that in every case of works contract, there is necessarily implied the sale of the component parts which go to make up the repair.
That question would naturally depend upon the facts and circumstances of each case.
Mere passing of property in an article or commodity during the course of performance of the transaction in question does not render the transaction to be transaction of sale.
Even in a contract purely of works or service, it is possible that articles may have to be used by the person executing the work, and property in such articles or materials may pass to the other party.
That would not necessarily convert the contract into one of sale of those materials.
250 In every case, the Court would have to find out what was the primarily object of the transaction and the intention of the parties parties while entering into it.
It may in some cases be that even while entering into the contract of work or even service, parties might enter into separate agreements, one of work and service and the other of sale and purchase of materials to be used in the course of executing the work or performing the service.
But, then in such cases the transaction would not be one and indivisible, but would fall into two separate agreements, one of work or service and the other of sale.
In order to constitute a sale, it is necessary that there should be an agreement between the parties for the purpose of transferring title to goods, which of course pre supposed capacity to contract, that it must be supported by money consideration that as a result of transaction, the property must actually pass in the goods.
Unless all these elements were present, there would be no sale.
[260 C H] State of Himachal Pradesh & Others vs Associate Hotels of India Ltd, 29 Sales Tax Cases 474; State of Madras vs Gannon Dunkerley & Co., Madras Ltd, 9 Sales Tax Cases 353 ; ; Robinson vs Graves, ; referred to.
2:3 Whether a given transaction is a works contract pure and simple or it involves sale of goods also is of course a mixed question of law and fact depending upon the facts of each case.
It is true, that it cannot be said that parties did not contemplate and apply their minds to the question of spare parts and other materials necessary for the execution of the works.
[262 F H] 3:1 The High Court of Karnataka was not right in its conclusion on the taxability of the turnover of the spare parts and materials supplied in execution of appellant 's job works.
[266 D] 3:2 It is clear from clause 3 that it was the expenditure to be incurred for providing the materials for the jobs to be done were subject to the approval and sanction of the Government.
The expressions "All items provisioned by the contractor will be the property of the owner and will be issued on contract loan.
" are significant and indicative of the real intention of the parties.
"The expression "contract loan" is not an expression of article It has no generally accepted meaning in dictionary, legal or otherwise, as such.
There is no meaning of this expression provided in the contract between the parties or in the correspondence between the parties in connection with the execution of the works.
But these expressions indicate that the `provisions ' which would be required for carrying out the contracts, which could not be anticipated before the beginning or in execution of the contracts will be the property of the owner i.e. that though gathered and procured or manufactured by the contractor, the contractor will have no property in the said goods or spares or materials and would not be able to either dispose of or deal with those but these will be treated for the purpose of this contract to be the property of the owner and, then the contract stipulated that on fictional basis these will be lent out to the contractor for being used in the execution of the jobs entrusted to the contractor.
[263 G H; 264 A] 3:4 The idea was that the moment these spares and materials were required for the jobs entrusted to the appellant and there was delay in supplying these spare parts and materials, the contractor would be free to procure or obtain these spares 251 and materials either by manufacturing or by purchase from the market local or foreign, these goods to be identified and would be treated by the operation of the contract to be the goods of the owner of the planes.
It is true that in order to be given out on loan by the 'owner ' to the contractor, the owner must have property in the spares and materials in question.
But the 'owner ' i.e. the Government in the context of 1951 agreement, and it is indisputable that the transactions in this case were done on the basis of the agreement of 1951, became the owner of the property the moment the goods were identified and there was delay or inability on the part of the government in supplying spares and materials.
[264 C F] In the instant case, the property in the materials which are used in the execution of the jobs entrusted to the contractor became the property of the Government before it was used.
Further there was no possibility of any other materials to be used for the contract.
[265 H; 266 A] Commissioner of Commercial Taxes, Mysore vs Hindustan Aeronautics Ltd, ; ; Ram Singh & Sons Engineering Works v Commissioner of Sales Tax, U.P. 43 Sales Tax Cases 195; followed.
State of Gujarat v Variety Buildings, 38 Sales Tax Cases 176 distinguished.


judgement:
Civil Appeal No. 230 of 1978.
From the Judgment and Order dated 19th January, 1978 of the 31 High Court of Judicature at Allahabad in Civil Misc.
Writ No. 355 of 1977.
Yogeshwar Prasad and Mrs. Rani Chabbra, for the Appellant J.P. Goyal, Rajesh and S.K. Jain for the Respondents.
The Judgment of the Court was delivered by MISRA, J.
The present appeal by special leave is directed against the judgment dated 19th of January, 1978 of the Allahabad High Court.
The short question for consideration in this appeal is whether a sub tenant is entitled to the protection of the fourth proviso to s.21 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.
The material facts to bring out the point for consideration lie in a narrow compass.
One Murari Lal was the owner of the disputed shop.
During his lifetime a partition took place between him and the other members of his family in 1937.
The shop in dispute fell to the share of Murari Lal and Narendra Mohan, his eldest son.
After the death of Murari Lal in 1960 his interest devolved upon his sons Rajendra Kumar and Brijendra Kumar along with their brother Narendra Mohan.
It appears that the shop in suit had been let out to one Krishan Kumar.
He in his turn inducted Shyam Babu, the present appellant, as his sub tenant in 1962.
Rajendra Kumar and Brijendra Kumar filed a suit No. 181 of 1968 in the Court of Munsif for the eviction of the original tenant as well as the sub tenant, on the ground of illegal subletting as also for the recovery of arrears of rent.
That suit was contested by the tenant as well as the sub tenant on the ground that the sub tenancy had been created with the consent of the then landlord and therefore subletting was legal.
The learned Munsif dismissed the suit by his order dated 24th April, 1973 holding that the sub tenancy created by Krishan Kumar in favour of the appellant Shyam Babu was with the consent of the landlord and as such neither Krishan Kumar nor Shyam Babu was liable to eviction on that ground.
It appears that during the pendency of the suit the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 32 (hereinafter referred to as the new Act) came into force on 15th July, 1972.
Rajendra Kumar and Brijendra Kumar, the landlords, moved an application under s.21 of the new Act for the release of the premises in occupation of the appellant and Krishan Kumar on the ground that the same is bonafide required for their personal use.
The application was resisted by the tenant as well as the sub tenant.
They denied that the need of the landlords was genuine.
They also set up their own needs and contended that they would suffer greater hardship if the application for release was allowed.
The prescribed authority allowed the application with respect to the portion in occupation of the appellant Shyam Babu but dismissed the same as against the original tenant Krishan Kumar.
Feeling aggrieved the landlords as well as the sub tenant filed two separate appeals before the District Judge to the extent the order went against them.
The landlords were aggrieved by the order insofar as their application was rejected against Krishan Kumar, the original tenant, while the appellant challenged the release of the premises granted to the landlords against him.
Both the appeals were disposed of by a common judgment of the District Judge on 24th March, 1977 confirming the order passed by the prescribed authority.
The landlords submitted to the order passed by the District Judge.
The appellant, however, sought to challenge the order of the District Judge by filing a writ petition in the High Court.
The contention raised by the appellant was that the prescribed authority as well as the Appellate Court committed a manifest error of law in allowing the application for release of the premises in favour of the landlords without considering the comparative hardship likely to be caused to the appellant or to the respondent land lords by the order of release or refusal to release the premises within the meaning of fourth proviso to s.21 of the new Act.
In the opinion of the High Court the proviso contemplated the consideration of the likely hardship of the tenant or the landlord and as the appellant was only a sub tenant the proviso did not obligate the authority to consider his hardship.
It will be appropriate at this stage to read the relevant proviso to s.21 as the decision of the case hinges on the construction of the proviso: "Provided also that the prescribed authority shall, except in cases provided for in the Explanation, take into 33 account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed.
" It may be recalled that in the earlier suit No. 181 of 1968 filed by the landlords it was found as a fact that the appellant Shyam Babu was inducted as a sub tenant by the tenant in chief with the consent of the landlords.
It was on this ground that the landlords ' suit was dismissed against the tenant in chief as well as the sub tenant.
A feeble attempt was made before the High Court on behalf of the landlords to challenge that finding but that was rejected and we think rightly.
Even an erroneous finding of fact between the parties will be binding on them.
The landlords, therefore, cannot possibly urge that the sub letting was not with the consent of the landlords.
If once it is accepted that the sub tenancy created by the tenant in chief in favour of the appellant was with the consent of the landlords his possession cannot be said to be illegal.
In this view of the matter we see no reason why he should be deprived of the protection of the fourth proviso to s.21 of the new Act.
It is true that the new Act was intended to give relief to the tenant. 'Landlord ' and 'tenant ' are defined terms in the Act. Clause(j) of s.3 defines 'landlord ' thus: "(j) "landlord", in relation to a building, means a person to whom its rent is or if the building were let would be, payable, and includes, except in clause (g), the agent or attorney, or such person:" Section 3 (a) defines tenant as; "(a) "Tenant" in relation to a building, means a person by whom its rent is payable,. . " The appellant who is a sub tenant pays rent to the tenant in chief and the tenant in chief in his turn pays rent to the landlord.
Between the appellant and the tenant in chief the tenant in chief would be the landlord and the appellant, the sub tenant, would be the tenant.
All that the relevant proviso to s.21 requires is that the comparative hardship of the tenant as also that of the landlord shall be taken into account before passing any order of release or refusal to release.
If the sub tenancy had been created without the consent 34 of the landlord the position might have been different.
The sub tenant for the purposes of the fourth proviso to s.21 would virtually be a tenant inasmuch as rent is payable by him to the tenant in chief, who to all intents and purposes will be a landlord qua the sub tenant.
To interpret the section in the way as the High Court has interpreted would be defeating the very salutary purpose of the new Act.
A similar question came up for consideration before a Division Bench of the Allahabad High Court in Bhullan Singh vs Babu Ram based on cl.
(g) of s.2 of the U.P. (Temporary Control of Rent and Eviction Act, 1947.
The High Court took the view that the term 'tenant ' as defined in cl.
(g) of s.2 of the Act includes a sub tenant.
Having considered the argument of the counsel for the parties we are of the firm view that the appellant was entitled to the protection of the fourth proviso to s.21 and the comparative hardship of the appellant as well as that of the landlords should have been taken into account before disposing of an application under s.21 of the new Act.
The Court below in our opinion have failed to exercise jurisdiction vested in them in not considering the likely hardship of the appellant.
For the reasons given above the appeal must succeed.
It is accordingly allowed and the impugned judgment of the High Court and those of the District Judge as well as of the prescribed authority on the question of comparative hardship are set aside.
The case is remanded to the District Judge who will send it to the prescribed authority under the new Rent Act to dispose of the application under s.21 in the light of the observations made above after considering the likely hardship of the appellant and that of the landlord respondents.
In the circumstances of the case, we direct the parties to bear their costs.
H.S.K. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The respondent landlords had let out a shop to a tenant who had, with the consent of the landlords, sub let the same to the appellant.
The landlords moved an application under section 21 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 against the tenant and the sub tenant for release of the premises on the ground of bonafide requirement.
The prescribed authority allowed the application against the appellant and dismissed against the tenant.
In appeal the District judge confirmed the order of the prescribed authority.
In a writ petition the appellant challenged the order of the District Judge.
The High Court dismissed the writ petition observing that the fourth proviso to s.21 contemplated the consideration of the likely hardship of the tenant or the landlord only and not of the sub tenant.
Hence this appeal.
Allowing the appeal, ^ HELD: All that the relevant proviso to s.21 requires is that the comparative hardship of the tenant as also that of the landlord shall be taken into account before passing any order of release or refusal to release.
If the sub tenancy had been created without the consent of the landlord the position might have been different.
The sub tenant for the purposes of the fourth proviso to s.21 would virtually be a tenant inasmuch as rent is payable by him to the tenant in chief, who to all intents and purposes will be a landlord qua the sub tenant: To interpret the section in the way as the High Court has interpreted would be defeating the very salutary purpose of the Act.
[33 H; 34 A B] Bhullan Singh vs Babu Ram referred to.
In the instant case, the appellant was entitled to the protection of the fourth proviso to section 21 and the comparative hardship of the appellant as well as that of the landlords should have been taken into account before disposing of an application under s.21 of the Act.
The Courts below have failed to exercise jurisdiction vested in them in not considering the likely hardship of the appellant.
[34 C D]


judgement:
N: Criminal Appeal No. 692 of 1983.
From the Judgment and order dated 29th November, 1983 of the Punjab & Haryana High Court at Chandigarh in Criminal Writ Petition No. 516 of 1983.
K. Parasaran, Attorney Genl.
of India, Bhagwant Singh, Advocate General (Punjab), Gurmukh Singh, Addl Adv.
of Punjab, D.S. Brar, Asstt Adv.
General, G.S. Mann.
Deputy Adv.
General, R.D. Aggarwal, Govt.
Advocate, Miss A. Subhashini and S.K. Bagga for the Appellants.
Hardev Singh, G.S. Grewal, N.S Das Behl, R.S. Sodhi and J.S. Sandhawalia, for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C. J.
This is an appeal by special leave against the judgment dated November, 29 1983 of a learned Single Judge of the High Court of Punjab and Haryana in Criminal Writ Petition No. 516 of 1983.
That Writ Petition was filed by the respondent.
Shri Jagdev Singh Talwandi, to challenge an order of detention passed by the District Magistrate, Ludhiana, on October 3, 53 1983 whereby the respondent was detained under section 3 (3) read with section 3 (2) of the .
The respondent was arrested in pursuance of the order of detention on the night between October 3 and 4, 1983.
He was first lodged in the Central Jail, Patiala and from there he was taken to Ambala, Baroda and Fathegarh (U.P.).
He filed a Writ Petition (No.463 of 1983) in the High Court to challenge his transfer and detention in a place far away from Ambala.
He withdrew that petition on an assurance by the Government that he will be sent back to Ambala, which the Government did on October 28.
The grounds of detention were served on the respondent on October 6, 1983.
Those grounds show that the petitioner was detained on the basis of two speeches allegedly made by him: one on July 8, 1983 at Nihang Chhowani, Baba Bakala, District Amritsar and the other on September 20, 1983 at Gurdwara Manji Sahib, Amertsar.
The grounds furnished to the petitioner read thus: "(1) That you in a Shaheedi Conference which was held from 11 a.m. to 4.45 p.m. on 8 7 1983 at a place known as 'Nihang Chhowani ' at Baba Bakala, District Amritsar, delivered a provocative speech to a Sikh gathering comprising about 2000/2200 Persons wherein you made a pointed reference to the incident dated 2 7 1983 of encounters between Nihangs and police at Baba Bakala and Taran Taran and stressed that in order to take revenge Sikhs would kill their (Police) four persons in lieu of the two Nihangs who had been killed in the said encounters.
(2) That while addressing a conference convened by the AISSF (All India Sikh Students Federation) on 20 9 1983 at Gurdwara Manji Sahib at Amritsar and attended by about 7000/8000 Sikh students, you made a provocative speech wherein you said that all efforts made for the success of the Akali Morcha having failed, it was still time to establish in Punjab a Government parallel to the Central Government and that you are in a position to form such a Government.
You further exhorted that the establishment of Khalsa Raaj was the only solution to the problems.
You also made a suggestion that the Government 54 will not accept any demand unless it was compelled by force to do so.
This statement was also published in the various newspapers.
A case F.I.R. No. 295 dated 27 9 1983 under section 124 A Indian Penal Code, and section 13 of the , was registered at Police Station 'E ' Division, Amritsar, which is under investigation.
" The detaining authority stated in the last paragraph of the detention order that the respondent was being supplied the grounds of detention in Punjabi (Gurmukhi script) together with an English translation thereof and the "supporting material forming the base of the grounds of detention".
The "supporting material", by which is meant particulars of the grounds of detention, was supplied to the respondent along with the grounds.
These particulars consist of what is alleged to be a report of the speeches made by the respondent, as recorded by the C.I.D. branch of the Punjab Police.
The particulars, of which an English translation was produced in the High Court at exhibit A1, read thus: "While speaking he said that on July 2 by bringing B.S.F., Punjab Police and other police the unarmed Nihangs were fired at.
There is no count as to how many of them were killed, because no rollcall is taken of the Sikhs; how many came and how many went.
Further said that in Punjab hundreds of innocent Sikhs have been made the target of bullets.
The Government has seen that the Sikhs go away after paying homage to the martyrs.
Now we will have to decide as to what steps should be taken.
The beloved army of Guru (Nihangs) have protected our dress and scriptures.
It is true that some of them do commit mistakes also.
They should be punished.
We should see that we should kill as many police man as they kill ours, otherwise they will slowly finish us.
The new Inspector General of Police Mr. Bhinder, has stated that there are no extremist in Darbar Sahib.
Further said that Congress wants to finish self respect among you.
The Morcha, which is launched by Akali Dal, is to save the Sikh appearance.
The awards have been given to police, have they won any war? Such a big attack upon the Nihangs was 55 on a pre planned programme.
I say if they have killed our two men, then you should kill four.
If they come to kill me like this, then I will die after killing them.
I will never go back.
Further said that if we get a judicial enquiry made, it becomes meaningless.
Nothing comes out of them.
Now the judicial power has been given to Executive Officers.
They may kill any body and they complete the enquiry and fill the file.
" One of the grounds on which the order of detention was challenged in the High Court was that the State Government had failed to discharge its obligation under Article 22 (5) of the Constitution by denying to the respondent an effective opportunity to make a representation to the Advisory Board against the order of detention.
On being asked by the learned Judge "to be more specific", counsel for the respondent stated in the High Court that the State Government had not supplied to the respondent the supporting material on which Ground No. 1 of the grounds of detention was based.
Shri Hardev Singh, who appears on behalf of the respondent, adopted that contention by clarifying that the case of the respondent is that the relevant facts stated in the 1st ground of detention are totally absent from the supporting material supplied to him and, therefore, no reasonable person could have possibly passed the detention order on the basis of that material.
The learned counsel urged that the order of detention was bad either because the detaining authority did not apply its mind to the material before it or, in the alternative, because there was some other material on the basis of which the detention order was passed and that material was not supplied to the respondent.
For the purpose of focussing attention on the true nature of the respondent 's contention and the prejudice said to have been caused to him, the learned Judge of the High Court resorted to an ingenious device.
He coined a conversation between the detaining authority and the detenu on the subject of their rival contentions in this case.
That imaginary conversation may be reproduced, at least for the merit of its novelty: "(The detaining authority and the detenu come face to face.) Detaining authority: (After reading out Ground No. 1 to the detenu) : You had made that objectionable speech.
56 Detenu: Sir, you seem to have been wrongly informed.
I did not deliver any speech, provocative or otherwise, in a Shaheedi Conference at any such time, date or place known as 'Nihang Chhowni ' at Baba Bakal, District Amritsar, before a Sikh gathering of 2000/2200, as read out by you from ground No. 1.
Detaining authority: (Being cock sure of its facts, takes out the C.I.D. report and puts it in the hands of the detenu.): Go through this C.I.D. report carefully, as ground No. 1 is based on that report.
Detenu: Sir, this report does not refer to any speech being made by me in a Shaheedi Conference at a given time, on a given date, at a given place, at Baba Bakala and before a Sikh gathering numbering 2000/2200.
Detaining authority: (Taking back the report from the detenu 's hand and subjecting it to a close scrutiny, says somewhat wryly): Yes, you are right.
The vital data which finds a mention in ground No. 1 is missing from the supporting materail.
(Regaining quickly his repose, the detaining authority continues): Never mind if the given vital facts are missing from the supporting material.
The supporting material at least reveals that you did utter the objectionable words somewhere, sometime, on some date and before some persons.
Detenu: Sir, but that was not the speech on which you were going to act.
You were going to take action against me on the basis of the speech mentioned in Ground No. 1.
Detaining authority: Very well.
(So saying, the detaining authority orders the detention of the detenu on two grounds by adding one more ground on the basis of another speech.
The detaining authority serves the order of detention upon the detenu, containing two grounds of detention.
Simultaneously, the detaining authority supplies the supporting material to the detenu.") 57 We must mention in order to put the record straight and in fairness to the learned Judge, that he has narrated this conversation in a manner which is slightly different in so far as the form, but not the substance; is concerned.
He has narrated the conversation in a running form.
We have reproduced it like a dialogue in a play, without adding anything of our own.
Indeed, we have taken care not to make any changes at all in the fictional conversation imagined by the learned Judge because, the questions and answers which suggested themselves to him are, in a sense, the heart of the matter and, in any case, constitute the essence of his judgment.
With respect to the learned Judge, the basic error of his judgment lies in an easy, unexamined assumption which he has made on a significant aspect of the matter.
The detenu reminded the detaining authority that the C.I.D. report did not refer to any speech made by him "in a Shaheedi Conference at a given time, on a given date, at a given place at Baba Bakala and before a Sikh gathering numbering 2000/2200".
The detaining authority could have not possibly replied to that question by saying merely that the detenu was right.
The detenu was right only formally or technically.
That is because, the C.I.D. report was supplied to him along with the grounds of detention with the express stipulation that it formed "the base of the grounds of detention".
The grounds mention every one of the details which need have been mentioned.
The C.I.D. report was furnished to the detenu as forming the source of information leading to the conclusion that he had made a speech which necessitated his detention in the interests of public order.
In the circumstances, the grounds and the material furnished to the detenu have to be read together as is the material in the form of the C.I.D. report was a continuation of the grounds of detention.
The unqualified reply given by the detaining authority to the detenu, as imagined by the learned Judge, betrays considerable unfamiliarity with the true legal position of the part on the detaining authority.
Not only that, but it shows that the detaining authority forgot that the particulars and the grounds were expressed to be interlinked, the former being the base of the latter.
The detaining authority should have explained to the detenu that though the particulars supplied to him did not mention those various details, the particulars were supplied to him along with the grounds, that it was expressly clarified contemporaneously that they related to the facts stated in the grounds, that the two had to be read together and that the grounds contained the necessary facts with full details.
The dialogue should 58 have ended there and the curtain rung down.
Indeed, the dialogue, though carefully improvised by the learned Judge, assumes what is to be decided, namely, whether the particulars furnished to the detenu suffer from the infirmity alleged.
Nevertheless, we will examine independently the argument of the respondent that he could not make an effective representation against the order of detention because the material supplied to him, that is to say, the C.I.D. report of the speech alleged to have been made by him at the Shaheedi Conference, did not contain the material particulars which formed an important constituent of the grounds served upon him.
His grievance is that the C.I.D. report of his speech does not mention that: (1) the Conference was held on July 8, 1983; (2) it was held at Nihang Chhowani; (3) it was held between the hours of 11.
A.M. and 4.45 P.M. (4) it was a "Shaheedi Conference"; (5) there was a gathering of 2000 to 2200 persons at the Conference; and that, (6) the speech made by him referred to an encounter at Baba Bakala and Tarn Taran.
Article 22 (5) of the Constitution, around which the argument or the respondent revolves, reads thus: "When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." This Article has come up for consideration before this Court in a large number of cases.
One of the earliest judgments of this Court on the interpretation of this Article is reported in Dr. Ram krishna Bhardwaj vs The State of Delhi,(1) in which Patanjali Sastri, C.J. observed that under Article 22 (5) of the Constitution, the detenu has the right to be furnished with particulars of the grounds of his detention, "sufficient to enable him to make a representation which, on being considered, may give relief to him".
Khudiram Das vs The State of West Bengal, 2 is a judgment of a four Judge Bench of this Court in a case which arose under the Main 59 tenance of Internal Security Act, 1971.
One of us, Bhagwati, J., who spoke for the Court, surveyed the decisions bearing on the question of the obligation of the detaining authority and explained the nature of that obligation thus: "The basic facts and material particulars, therefore, which are the foundation of the order of detention, will also be covered by 'grounds ' within the contemplation of article 22 (5) and section 8 and are required to be communicated to the detenu unless their disclosure is considered by the authority to be against the public interest.
This has always been the view consistently taken by this Court in a series of decisions.
" In Mohammad Yousuf Rather vs The State of Jammu & Kashmir,(1) Chinnappa Raddy, J., in a concurring judgment, dealt with the implications of Article 22 (5) of the Constitution thus: "The extent and the content of Article 22 (5) have been the subject matter of repeated pronouncements by this Court (Vide State of Bombay vs Atmaram (2), Dr. Ramkrishna Bhardwaj vs State of Delhi (1) Shibbanlal Saxena vs State of Uttar Pradesh (3) Dwarkadas Bhatia vs State of Jammu & Kashmir (4).
The interpretation of Article 22, consistently adopted by this Court, is, perhaps, one of the outstanding contributions of the Court in the cause of Human Rights.
The law is now well settled that a detenu has two rights under Article 22 (5) of the Constitution .
(1) To be informed, as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority and (2) to be afforded the earliest opportunity of making a representation against the order of detention, that is, to be furnished with sufficient particulars to enable him to make a representation which on being considered may obtain relief to him." In Khudiram Das vs The State of West Bengal,(2) it was observed that these two safeguards "are the barest minimum which must be 60 observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security".
The question which we have to consider in the light of these decisions is whether sufficient particulars of the first ground of detention were furnished to the respondent so as to enable him to exercise effectively his constitutional right of making a representation against the order of detention.
The obligation which rests on the detaining authority in this behalf admits no exception and its rigour cannot be relaxed under any circumstances.
Having given our anxious consideration to this question, it seems to us impossible to accept the view of the High Court that sufficient particulars of the first ground of detention where not furnished to the detenu so as to enable him to make an effective representation to the detaining authority, that is to say, a representation which on being accepted may give relief to him.
This is not a case in which the ground of detention contains a bare or bald statement of the conclusion to which the detaining authority had come, namely, that it was necessary to pass the order of detention in order to prevent the detenu from acting in a manner prejudicial to the interests of public order.
The first ground of detention with which we are concerned in this appeal, mentions each and every one of the material particulars which the respondent was entitled to know in order to be able to make a full and effective representation against the order of detention.
That ground mentions the place, date and time of the alleged meeting.
describes the occasion on which the meeting was held, that is, the 'Shaheedi Conference '.
It mentions the approximate number of persons who were present at the meeting.
Finally, it mentions with particularity the various statements made by the respondent in his speech.
These particulars mentioned in the grounds of detention comprise the entire gamut of facts which it was necessary for the respondent to know in order to make a well informed representation.
The inadequacies from which the supplementary particulars furnished to the respondent along with ground No. 1 suffer, cannot affect that position because, they do not introduce any obscurity in the facts stated in that ground or detract from the substance of the allegations mentioned in that ground.
The argument of the respondent that he could not make an effective representation in behalf of ground No. 1 because of the inadequacy of data in the particulars supplied to him, has therefore to be rejected.
However, we are somewhat surprised that in a matter of this nature, 61 the detaining authority should have adopted a somewhat casual and unimaginative approach to his task.
We asked the learned Attorney General to produce before us the original version of the C.I.D. report of which an extract was supplied to the respondent by way of particulars.
The original version contains almost every one of the material details pertaining to the meeting which are mentioned in ground No. 1 The detaining authority needlessly applied his scissors excising the data which mentioned the date, the place, the time and the occasion of the meeting.
It is this lack of thoughtfulness on the part of the detaining authority which furnished to the respondent the semblance of an argument.
This Court has observed in numerous cases that, while passing orders of detention, great care must be brought to bear on their task by the detaining authorities.
Preventive detention is a necessary evil but essentially an evil.
Therefore, deprivation of personal liberty, if at all, has to be on the strict terms of the Constitution.
Nothing less.
We will utter the of given warning yet once more in the hope that the voice of reason will be heard.
Shri Hardev Singh contended, in the alternative, that the order of detention suffers from a total non application of mind because, that order could not have been passed on the basis of the C.I.D. report which does not refer to any of the facts which are mentioned in the order of detention.
It is undoubtedly true that the case of the appellants is that the order of detention is founded upon the report of the C.I.D., relating to the speech made by the respondent at the Shaheedi Conference.
But the argument of the learned counsel overlooks that what was furnished to the respondent was an extract from the C.I.D. report and not the whole of it.
However, that has not caused any prejudice to the respondent since the grounds and the particulars were served upon him simultaneously and ground No. 1 mentions every conceivable detail which it was necessary to mention in order to enable the respondent to make a proper representation against the order of detention.
Evidently, the detaining authority had before it the whole of the C.I.D. report on the basis of which it passed the order of detention.
What was omitted from the extract furnished to the respondent was incorporated in ground No. 1.
It is therefore not possible to accept the argument that the order of detention is bad because the detaining authority did not apply its mind to the question as to whether there was material on the basis of which the respondent could be detained.
It was further argued by the learned counsel that the detaining authority should have disclosed the evidence on the basis of which 62 the order of detention was passed because, in the absence of knowledge of such evidence, the respondent could not have made an effective representation against the order of detention.
There is no substance in this contention.
It is not the law that the evidence gathered by the detaining authority against the detenu must also be furnished to him.
In Beni Madhob Shaw vs The State of West Bengal,(1) it was argued on behalf of the detenu that the details of the activities attributed to him were not disclosed to him, as a result of which his right to make a representation to the Government was seriously prejudiced.
It was held by this Court that since the activities forming the grounds of detention were disclosed to the detenu in clear terms and since such disclosure furnished adequate information to the detenu to enable him to make an effective representation against his detention, the non disclosure of sources of information or the exact words of the information which formed the foundation of the order of detention could not be complained of.
In Her Jas Dev Singh vs State of Punjab,(2) it was held that the conclusions drawn from the available facts constitute 'the grounds ' and that the ground must be supplied to the detenu.
The Court observed that the detenu is not entitled to know the evidence nor the source of the information: What must be furnished to him are the grounds of detention and the particulars which would enable him to make out a case, if he can, for the consideration of the detaining authority.
In Vakil Singh vs State of Jammu and Kashmir, (3) it was held that since the basic facts, as distinguished from factual details were incorporated in the material which was supplied to the detenu, nothing more was required to be intimated to him in order to enable him to make an effective representation.
These cases show that the detenu is not entitled to be informed of the source of information received against him or the evidence which may have been collected against him as, for example, the evidence corroborating that the report of the C.I.D. is true and correct.
His right is to receive every material particular without which a full and 63 effective representation cannot be made.
If the order of detention refers to or relies upon any document, statement or other material, copies thereof have, of course, to be supplied to the detenu as held by this Court in Ichhu Devi Choraria vs Union of India.(1) That question does not arise here since no such thing is referred to or relied upon in the first ground of detention.
Indeed the furnishing of the C.I.D. report, of which a truncated extract was furnished to the respondent, was a superfluous exercise in the light of the facts of the instant case.
Shri Hardev Singh relied upon the following passage in the judgment in Khudiram in support of his contention that the entire material which was before the detaining authority, including the evidence gathered by him, must be furnished to the detenu: "But if the grounds of detention are not communicated to him how can he make an effective representation ? The opportunity of making a representation would be rendered illusory.
The communication of the grounds of detention is, therefore, also intended to sub serve the purpose of enabling the detenu to make an effective representation.
If this be the true reason for providing that the grounds on which the order of detention is made should be communicated to the detenu, it is obvious that the 'grounds ' mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which, therefore, the order of detention is based.
" These observations cannot be construed as meaning that the evidence which was collected by the detaining authority must also be furnished to the detenu.
As the very same paragraph of the judgment at page 839 of the report shows, what was meant was that the basic facts and the material particulars which form the foundation of the order of detention must be furnished to the detenu since, in the true sense, they form part of the grounds of detention and without being apprised of the same, the detenu cannot possibly make an effective representation.
Shri Hardev Singh found serious fault with the fact that in answer to the writ petition filed by the respondent in the High Court, the counter affidavit was sworn by Shri K.C. Mahajan, Deputy Secretary in the Home Department of the Government of Punjab, and 64 not by the District Magistrate, Ludhiana, who had passed the order of detention.
We are not prepared to dismiss this submission as of no relevance or importance.
In matters of a routine nature, if indeed there are any matters of a routine nature in the field of detention, a counter affidavit may be sworn by a person who derives his knowledge from the record of the case.
However, in sensitive matters of the present nature, the detaining authority ought to file his own affidavit in answer to the writ petition and place the relevant fats before the Court which the Court is legitimately entitled to know.
In Shaik Hanif vs State of West Bengal, the counter affidavit on behalf of the State of West Bengal was filed by the Deputy Secretary (Home), who verified the correctness of the averments in his affidavit on the basis of the facts contained in the official records.
The District Magistrate; who passed the order of detention, did not file his affidavit and the explanation which he gave for not doing so was found to be unsatisfactory.
Following an earlier judgment in Naranjan Singh vs State of Madhya Pradesh, it was held by this Court that, in answer to a Rule issued in a habeas corpus petition, it is incumbent upon the State to satisfy the Court that the detention of the petitioner is legal and is in conformity not only with the mandatory provisions of the Act under which the order of detention is passed but is also in accord with the requirements implicit in Article 22(5) of the Constitution.
Sarkaria, Jobserved on behalf of the Court: "Since the Court is precluded from testing the subjective satisfaction of the detaining authority by objective standards, it is all the more desirable that in response to the Rule Nisi, the counter affidavit on behalf of the State should be sworn to by the District Magistrate or the authority on whose subjective satisfaction the detention order under s.3 was passed.
If for sufficient reason shown to the satisfaction of the Court, the affidavit of the person who passed the order of detention under section 3 cannot be furnished, the counter affidavit should be sworn by some responsible officer who personally dealt with or processed the case in the Government Secretariat or submitted it to the Minister or other Officer duly authorised under the rules of business framed by the Governor under Article 166 of the Constitution to pass orders on behalf of the Government in such matters.
" 65 After reviewing certain other decisions, the Court held that the failure to furnish the counter affidavit of the District Magistrate who had passed the order of detention, was an impropriety though in most of the cases it may not be of much consequence, especially if there was no allegation of mala fides against the detaining authority.
In the result, the absence of the affidavit of the District Magistrate was held not to vitiate the order of detention.
In this case too, there are no allegations of mala fides against the District Magistrate and so, his failure to file a counter affidavit will not vitiate the order of detention.
We cannot, however, leave this subject without emphasising once again the importance of the detaining authority filing his own affidavit in cases of the present nature.
There are degrees of impropriety and the line which divides grave impropriety from illegality is too thin to draw and even more so to judge.
Conceivably, there can be cases in which such impropriety arising out of the failure of the detaining authority in filing his own affidavit may vitiate the order of detention.
Finally, Shri Hardev Singh has contended that the respondent was unable to give proper instructions to his counsel when the matter was heard by the Advisory Board.
Counsel says that the respondent was transferred from place to place and ultimately.
he was produced before the Advisory Board an hour or so before the commencement of proceedings before the Board.
That left no time for him to instruct his counsel.
We do not see any substance in this grievance.
The respondent was represented by an advocate before the Advisory Board.
The learned advocate argued the case of the respondent along with the cases of two other detenus.
It does not appear that any grievance was made by him that he was not able to obtain instructions from the respondent so as to be able to represent his case effectively before the Advisory Board.
For these reasons, we allow the appeal and set aside the judgment of the High Court.
As desired by counsel for the respondent, we remand the matter to the High Court for disposal of the remaining contentions raised by the respondent in his Writ Petition.
We would like to take this opportunity to point out that serious difficulties arise on account of the practice increasingly adopted by the High Courts, of pronouncing the final order without a reasoned judgment.
It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment 65 is ready for pronouncement.
Suppose, for example, that a final order without a reasoned judgment is announced by the High Court that a house shall be demolished, or that the custody of a child shall be handed over to one parent as against the order, or that a person accused of a serious charge is acquitted, or that a statute is unconstitutional or, as in the instant case, that a detenu be released from detention.
If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court.
That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented.
The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment.
It may be thought that such orders are passed by this Court and therefore there is no reason why the High Courts should not do the same.
We would like to point out respectfully that the orders passed by this Court are final and no appeal lies against them.
The Supreme Court is the final Court in the hierarchy of our courts.
Besides, orders without a reasoned judgment are passed by this Court very rarely, under exceptional circumstances.
Orders passed by the High Court are subject to the appellate jurisdiction of this Court under Article 136 of the Constitution and other provisions of the concerned statutes.
We thought it necessary to make these observations in order that a practice which is not very desirable and which achieves no useful purpose may not grow out of its present infancy.

summary/full:
The respondent challenged the order of his detention passed by the District Magistrate, Ludhiana on October 3,1983 under section 3 (3) read with section 3 (2) of the , through Criminal Writ Petition No. 516 of 1983.
According to the petitioner respondent, the grounds of detention served on him on Oct. 6, 1983 showing that he was detained on the basis of two speeches made by him on 8.7.1983 and 20.9.1983 as recorded by the Crime Investigation Department of the Punjab Police contained certain particulars, which were totally absent from the supporting material and therefore no reasonable person could have possible passed the detention order on the basis of such material.
The High Court accepted the contention and made the rule absolute.
Hence the appeal by the State after obtaining special leave.
Allowing the appeal and remanding the matter to the High Court of Punjab, the Court ^ HELD: 1:1.
While passing orders of detaining great care must be brought to bear on their task by the detaining authorities.
Preventive detention is a 51 necessary evil but essentially an evil.
Therefore, deprivation of personal liberty, if at all, has to be on the strict terms of the Constitution.
Nothing less.
[61 B C] 1:2.
In the instant case, the detaining authority should not have adopted a somewhat casual and unimaginative approach to his task.
The original version contains almost every one of the material details pertaining to the meeting, which are mentioned in ground No.1.
The detaining authority needlessly applied his scissors excising the data which mentioned the date, place, the time and the occasion of the meeting.
It is this lack of thoughtfulness on the part of the detaining authority which furnished to the respondent the semblance of an arguments.
[61 A B] 2.
The contention of the respondent that he could not make an effective representation in behalf of ground No.1 because of the inadequacy of data in the supporting particulars supplied to him is incorrect.
The inadequacies from which the supplementary particulars furnished to the respondent along with ground No.1 suffer, cannot affect that position because, they do not introduce any obscurity in the facts stated in that ground or detract from the substance of the allegations mentioned in that ground.
The first ground of detention mentions that the detenu was right only formally or technically.
That is because, the C.I.D. Report was supplied to him along with the grounds of detention with the express stipulation that it formed "the base of the grounds of detention.
" The grounds mention every one of the details which need have been mentioned.
The C.I.D. report was furnished to the detenu as forming the source of information leading to the conclusion that he had made a speech which necessitated his detention in the interests of public order.
In the circumstances, the grounds and the material furnished to the detenu have to be read together as if the material in the form of the C.I.D. report was a continuation of the grounds of detention.
[57 C E, 60 F H] Dr. Ramakrishna Bhardwaj vs The State of Delhi, ; , Khudiram Das vs The State of West Bengal, ; , @ 838 & 840; Mohammed Yusuf Rowther vs The State of J & K, ; @ 268, 269; State of Bombay vs Atmaram, ; Shibbanlal Saxena vs State of Uttar Pradesh, ; ; Dwarkadas Bhatia vs State of Jammu & Kashmir, ; ; referred to.
The detenu is not entitled to be informed of the source of information received against him or the evidence which may have been collected against him as for example, the evidence corroborating that the report of the C.I.D. is true and correct.
His right is to receive every material particular without which a full and effective representation cannot be made.
If the order of the detention refers to or relies upon any document, statement or other material, copies thereof have, of course, to be supplied to the detenu.
It is not the law that evidence gathered by the detaining authority against the detenu must also be furnished to him.
[62 G H; 63 A B] Beni Madhob Shaw vs The State of West Bengal, A.I.R. Har Jas Dev Singh vs State of Punjab, ; @ 288; Vakil Vakil Singh vs State of Jammu & Kashmir, A.I.R. 1974 2337 @, 2341; Icchu Devi Choraria vs Union of India; , @ 650; referred to.
The failure to furnish the counter affidavit of the District Magistrate who had passed the order of detention, was an impropriety though in most of the cases 52 it may not be of much consequence, especially if there was no allegation of mala fides against the detaining authority.
There are no allegations of mala fides against the District Magistrate and so, his failure to file a counter affidavit will not vitiate the order of detention.
[65 A B] Shaik Hanif vs State of West Bengal, [1974]3 SCR 258; Naranjan Singh vs State of Madhya Pradesh, A.I.R. 1972 S.C. 2215, referred to.
[The Court emphasised the importance of the detaining authority filing his own affidavit in cases of the present nature and observed that "There are degrees of impropriety and the line which divides grave impropriety from illegality is too thin to draw and even more so to judge.
Conceivably, there can be cases in which such impropriety arising out of the failure of the detaining authority in filing his own affidavit may vitiate the order of detention.] [65 C D] 5.
It is desirable that the final order which the High Court intends to pass should not be announced until a reasoned judgment is ready for pronouncement.
If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special leave petition in this Court against the order passed by the High Court.
That places this Court in a predicament because, without the benefit of the reasoning of the High Court it is difficult for this Court to allow the bare order to be implemented.
The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment.
[65 H; 66 A C]