judgement:
ivil Appeal No. 5502 of 1983.
From the Judgment and Order dated 6.5.1983 of the Alla habad High Court in C.M.W.P. No. 6563 of 1980.
S.S. Ray, D.D. Thakur, Mrs. C. Markandeya, section Markan deya, W.A. Nomani, G.S. Giri Rao, R.K. Raina and J.M. Khanna for the Appellants.
B.D. Agarwal, Mrs. section Ramachandran, R. Ramachandran, H.K. Puri, Mrs. section Dikshit and A.K. Gupta for the Respond ents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
Appellant No. 1 is a registered Housing Cooperative Society registered under the U.P.
Co operative Societies Act, bearing registration No. 2 130 dated 27.3.
1973, hereafter referred to as 'the society ', and appellant Nos. 2, 3 and 4 are respectively the President, Secretary and Treasurer of the Society.
The object of the Society is to acquire lands for its members for constructing residen tial houses for them.
The members are Central and State Government employees and public sector employees; and more than 70 acres of land situated in villages Chhalera Bangar and Suthari were acquired by the Society between January, 1973 and September, 1975.
For development of certain areas in the State of U.P. into industrial and urban township and for matters connected therewith, the U.P. Industrial Area Development Act, 1976, hereafter referred to as 'the Act ', was enacted and thereaf ter the U.P. Government by a Notification dated 17.4.1976 declared the villages named in the schedule annexed to the Notification to be an Industrial Development Area within the meaning of the Act, to be called "NOIDA".
67 Soon after constituting this Authority a Notification under sections 4 and 17 (sub section
(1) of section 4 and sub section
(4) of section 17) of the Land Acquisition Act was published in the U.P. Extra Ordinary Gazette dated 30.4.1976 stating that the land in village Chhalera Bangat was needed for the planned indus trial development.
The land of the appellant society was included in the Notification.
In continuation of Notifica tion dated 30.4.1976, another Notification under section 6 dated 1.5.1976 was issued stating that the land mentioned in the schedule (i.e. village Chhalera Bangar) was needed for a public purpose and under section 7 of that Act to direct the Collector of Bulandshahar to take order for the acquisition of the said land.
A Notification under sub section
(1) of section 4 of the Land Acquisition Act was issued on 1.6.1976 notifying that the land mentioned in the schedule (i.e. land in Suthari village etc.) was needed for a public purpose and that the case was of urgency and as such the provisions of sub.
section (1) of section 17 of the said Act were applicable to the land Notifica tion under section 6 of that Act was issued on 16.9.1976 notify ing that the land mentioned in the schedule (i.e. Suthari village etc.) was needed for public purpose and under section 7 of that Act it directed the Collector to take order for acquisition of the said land.
The appellant society and the other registered co opera tive societies demanded land in lieu of the land acquired in the NOIDA complex and after several representations and correspondence a subcommittee was constituted under the chairmanship of Sri B.J. Khadaiji, Commissioner and Secretary, Housing and Urban Development, Government of Uttar Pradesh to look into the matter.
In a meeting held on 19.10.1979 it was decided that sites would be given to various co operative societies nearest to Delhi on the basis of the NOIDA Master Plan which was under consideration.
It was also clarified in that meeting that 35 per cent of the area offered to the members of the Society will be plotted area out of the total acquired area of the Society.
The Executive Officer NOIDA vide his letter dated 21.4.1980 informed that it was proposed to offer developed plots to the bona fide members of the co operative societies whose lands were acquired.
An approximate rate was offered at Rs. 130 per square metre in sectors 30, 31, 34, 39 and 40.
Certain conditions were also laid down in that letter and one of the conditions was that amount equal to 30 per cent of the price of the area of developed plots computed at Rs. 130 per square metre should have to be sent in favour of NOIDA and thereafter tripartite agreement shall have to be made between NOIDA, Co operative Societies and individual members after finalisation of lay out plan.
68 Alleging that arbitrary action taken by the NOIDA that far was not acceptable to the appellant Society, it flied Civil Misc.
Writ Petition No. 6563 of 1980 on 29.7.1980 challenging the notifications issued under sections 4 and 6 of the Land Acquisition Act.
The writ petition was admitted by the Allahabad High Court but stay was refused.
The Society insisted on rehabilitation of the members on the original land on the basis of the policy of the Government.
The Chief Executive Officer intimated the Society that the authority had finally decided to offer lands in sectors 30, 31, 36 and 40 and that 20 per cent of the amount had to be deposited, but the Society did not deposit the amount by the stipulated time.
The Society requested for extension of time, but the NOIDA did not extend it and the appellant Society had not been allotted any land.
As the writ petition was filed in the year 1980 i.e. more than three years after publication of the notifications, the impugned Notifications had been upheld by a Division Bench of the Allahabad High Court by the impugned Judgment dismissing the writ petition.
The appellant Society argued before the High Court that the action of the Authority in not allotting land to the appel lant Society was mala fide and also that action of the Au thority in not extending the time as prayed for was arbi trary and discriminatory.
It was submitted by the respond ents that offer to give developed plots to the appellant Society was only as a concession and not as a legal right; the Authority was not bound to extend the time.
The appel lant Society also challenged the price fixed by the authori ty and the appellant 's counsel had not been able to show that anybody was offered developed plots for a price less than Rs. 130.
The High Court held that appellant Society had no legal right to get a particular land and that the Society did not avail of the concession granted by the authority.
Hence this appeal by Special Leave from the impugned Judgment and Order dated 6.5.1983 of the Allahabad High Court passed in Civil Misc.
Writ Petition No. 6563 of 1980.
While granting Special Leave on 30.5.1983 there was an order of ex parte stay of dispossession pending notice; but the execution proceedings were allowed to go on.
On 19.3.
1984 in C.M.P. No. 16786 of 1983 it was ordered that Mr. Markandeya, Advocate on behalf of the petitioners would make a representation to the respondent New Okhla Industrial Development Authority (NOIDA) for the allotment of a suit able site and the representation would be considered on its own merits and a decision taken thereon by the respondent within two months from the date of that order.
On 30.4.1984 Mr. G.L. Sanghi appearing for NOIDA had made a statement before the Court that 69 NOIDA undertook that in the event of this appeal being allowed NOIDA would give to the appellants such areas as this Court might specify from sectors 40 and 41 at prices to be determined in accordance with the Judgment of this Court.
Undertaking given by Mr. G.L. Sanghi was limited to NOIDA giving areas from sectors 40 and 41 to the appellants and to those persons who were eligible members of the Society on 1st May, 1976.
These orders were said to be without preju dice to the rights and contentions of both the parties in this appeal.
On 8.5.
1985 the order dated 30.4.1984 was modified by this Court directing that NOIDA would give to the appellants such areas as this CoUrt might specify from sectors 40, 41 as also from sector 42 at price to be determined in accord ance with the Judgment of this Court.
If any of the peti tioners could not be accommodated in any of these sectors, the NOIDA would give them sites or areas which were contigu ous to sectors 40, 41 and 42.
On 18.1.1990 this appeal was delinked from the group of NOIDA cases.
By Judgment and Order dated 13.2.1990 the main Writ Petition No. 975 of 1986 Hiralal Chawla & Anr.
vs State of U.P. & Ors., reported in [1990] 1 Judgments Today SC 194 was disposed of stating the total number of persons entitled to allotment and sizes of the plots to be allotted and direct ing that the sites be developed by NOIDA within a period of nine months beginning from 1st of March, 1990 and allot them by charging the agreed price at the rate of Rs. 1,000 per square metre and paying 12 per cent interest on the amount deposited till the actual allotment; and that the interest would be adjusted against the price payable on the allotted land.
The dates for payment of the 1st, 2nd and 3rd instal ments were also agreed.
It was observed that the Town Plan ning in NOIDA was said to be in accordance with the norms laid down by itself and the same are prescribed by the Board of which the Chief Town and Country Planner of Uttar Pradesh was a member.
It was accordingly directed that all the norms laid down by NOIDA in the matter of development shall be strictly followed.
Supervision of this operation should be by NOIDA and the appellants would co operate with NOIDA in that regard.
When this appeal was heard on 5.4.1990 there was a consensus that justice would be done to the parties, if this appeal is also disposed of on similar terms as in Hiralal Chawla & Anr.
vs State of U.P. & Ors.
, (supra).
However, the parties were allowed to file.
written submissions.
Written submissions were accordingly filed by the res 70 pondents, in reply thereto by the appellants, and for the intervener.
Taking into consideration the earlier interim orders, the consensus arrived at the hearing and the written submis sions, it is ordered in line with Hiralal (supra) that the interim orders dated 30.5.83, 19.3.84, 30.4.84 and 8.5.85 will merge in this Order.
The impugned Judgment of the High Court is set aside and it is ordered: (A) That the total number of persons entitled to allotment will be confined to those persons who were eligible members of the Society on 1st May, 1976 not exceeding 600 (six hundred).
(B) The total area to be allotted to the members of the Society will be 28.8 acres in the form of developed plots.
This amounts to 40% of the total 72 acres of land acquired by the Society in the villages Chhalera Bangar and Suthari between January, 1973 and September, 1975.
(C) The allotment shall be made in Sectors 40, 41 and 42 and if sufficient number of plots are not available in these Sectors, then from the adjacent Sectors.
(D) The plots to be allotted are to be developed by NOIDA within a period of nine months beginning from 1st May, 1990 and ending on 31st January, 1991 by which date the plots shall be allotted to the entitled members of the Society.
(E) The NOIDA shall be permitted to charge the price of the allotted plots at the rate of Rs. 1,000 per square metre.
(F) Every member who has deposited any sum of money with NOIDA against proposed allotment shall be enti tled to 12 per cent interest on such amount from the date of deposit till the actual allotment and such interest accrued in favour of the person shall be entitled to adjustment of such interest against actual price of the land to be worked out at the rate of Rs. 1,000 per square metre.
Balance amount, if any, shall have to be paid by every eligible member of the Society as on 1.5.76 not exceeding 600 in all, within three months from now in three equal monthly instal ments.
The 1st instalment will be paid on or before May 31, 1990, the 2nd instalment to be paid on or before June 30, 1990 and the 3rd instalment to be paid on or before July 31, 1990.
(G) It shall be the obligation of the Society to duly notify every member of these directions and the time factor forthwith as failure to pay any of these instalments within the time limit indicated above shall disqualify such person from allotment and NOIDA will thereafter be only obliged to refund the money lying to the credit of the defaulter with bank rate of interest.
(H) It is stated by the parties that a Review Application in Hiralal Chawla 's case is pending.
As agreed by the parties in case that Review is allowed, the parties herein shall be at liberty to apply for review of this judgment to similar extent.
(I) Each allottee shall furnish an affidavit to the effect that neither he/she or spouse, 71 nor dependent children owns any other plot or house or flat within NOIDA.
Town Planning in NOIDA is said to be in accordance with the norms laid down by itself and the same are prescribed by the Board of which the Chief Town and Country Planner of Uttar Pradesh is a member.
We direct that all the norms laid down by NOIDA in the matter of development shall be strictly followed.
Supervision of this operation of course shall be by NOIDA but we hope and trust that the Society would coop erate with NOIDA in this regard.
The appeal is disposed of with these directions without any orders as to costs.
G.N. Appeal disposed of.

dataset_name: IN-Abs

summary/full:
The appellant, a registered Housing Co operative Socie ty, acquired about 70 acres of land during the period 1973 to 1975.
After the enactment of U.P. Industrial Area Development Act, 1976, the State Government constituted an Industrial Development Authority called NOIDA.
Soon after the constitu tion of the said authority, notifications were issued under the Land Acquisition Act acquiring certain lands including that of the appellant Society.
The appellant and several other societies demanded land in lieu of the land acquired.
A sub Committee was constitut ed and it was proposed to offer developed plots to the bona fide members of the societies whose lands were acquired.
An approximate rate of Rs. 130 per square metre was fixed.
It was also stipulated that 30% of the price would have to be deposited before a tripartite agreement between NOIDA, Co operative Societies and individual members is made after finalisation of lay out plan.
The appellant society filed a Writ Petition in the High Court alleging that the action taken by NOIDA was arbitrary and challenging the notifications issued under Sections 4 and 6 of the Land Acquisition Act.
Meanwhile, the authority had intimated the appellant society that it was finally decided to offer lands, and that 20% of the amount had to be deposited within a stipulated time.
The Society requested for extension of time.
Time was not extended and the Society was not allotted the land.
It was contended before the High Court that the authori ty acted mala fide, and its not extending the time was arbitrary and discrimi 65 natory.
The land price fixed by the authority was also challenged.
The High Court dismissed the Writ Petition, holding that the appellants Society had no legal right to get a particular land and that it did not avail the conces sion granted by the authority.
This appeal by special leave is against the order of the High Court.
Disposing of the appeal, this Court.
HELD: 1.
The interim orders of this court dated 30.5.83, 19.3.84, 30.4.84 and 8.5.85 will merge in this Order.
[70B] 2.
The Judgment of the High Court dated 6.5.83 is set aside.
The total number of persons entitled to allotment will be confined to those persons who were eligible members of the Society on 1st May, 1976 not exceeding 600.
The total area to be allotted to the members of the Society will be 28.8 acres in the form of developed plots.
This amounts to 40% of the total 72 acres of land acquired by the Society in the villages Chhalera Bangar and Suthari between January, 1973 and September, 1975.
The allotment shall be made in Sectors 40, 41 and 42 and if sufficient number of plots are not available in these Sectors, then from the adjacent sectors.
The plots to be allotted are to be developed by NOIDA within a period of nine months beginning from 1st May, 1990 and ending on 31st January, 1991 by which date the plots shall be allotted to the entitled members of the Society.
NOIDA shall be permitted to charge the price of the allotted plots at the rate of Rs. 1.000 per square metre.
Every member who has deposited any sum of money with NOIDA against proposed allotment shall be entitled to 12 per cent interest on such amount from the date of deposit till the actual allotment and such interest accrued in favour of the persons shall be entitled to adjustment of such interest against actual price of the land to be worked out at the rate of Rs.1,O00 per square metre.
Balance amount, if any, shall have to be paid by every eligible member of the Socie ty as on1.5.76 not exceeding 600 in all, within three months from now in three equal monthly instalments.
The 1st instal ment will be paid on or before May 31, 1990.
The second instalment to be paid on or before June 30.
1990 and the third instalment to be paid on or before July 31, 1990.
It shall be obligation of the Society to duly notify every member of these directions and the time factor forthwith as failure to pay any of these instalments within the time limit indicated above shall disqualify such person from allotment and NOIDA will thereafter be only obliged to refund the money lying to the credit of the defaulter with bank rate of interest.
In case the Review Petition in Hira lal Chawla 's case is allowed, the parties herein shall be at liberty to apply for review of this judgment 66 on similar extent.
Each allottee shall furnish an affidavit to the effect that neither he/she or spouse, nor dependent children owns any other plot or house or flat within NOIDA.
All the norms laid down by NOIDA in the matter of develop ment shall be strictly followed.
Supervision of this opera tion of course shall be by NOIDA.
The society would cooper ate with NOIDA in this regard.
[70B H; 71A B] Hiralal Chawla and Anr.
vs State of U. P. & Ors., [1990] 1JTSC 194, applied.


judgement:
ffidavit and the addi tional affidavit before the High Court as well as this Court are filed by the Deputy Superintendent of Police who has no connection whatsoever with the passing of the order or dealing with or processing the file at any point of time.
In fact, he could not have got any personal knowledge with the passing of the order of its subsequent proceeding since the order has been passed by the State Government and the subse quent proceedings have been dealt with by the officials of the Secretariat.
It is, therefore, terribly shocking and surprising that a police officer who has no connection whatsoever with this detention order and who had not at any relevant time personally dealt with the case has come for ward to swear about the entire proceedings from the begin ning right up to the rejection of the representation includ ing the holding of the meeting of the Advisory Board on behalf of the appropriate authority.
The affidavit filed by the Deputy Superintendent of Police is, therefore, not worth consideration.
[841D F; 836F G] & CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 30 1 of 1990.
From the Judgment and Order dated 15.1.1990 of the Rajasthan High Court in H.C.P. No. 2866 of 1989.
Pallave Shishodia, Sandeep Mehta and D. Bhandari for the Appellant.
Chandmal Lodha, S.C. Gupta (N.P.), M.N. Shroff, I. Makwana and Manoj Prasad for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
This appeal by grant of special leave is directed against the Order of the High Court of Rajasthan at Jodhpur in Habeas Corpus Petition No. 2866/1989 dismissing the Writ Petition filed by the detenu Gazi Khan @ Chotia.
The order of detention dated 30.5.
1989 under challenge has been passed by the Administrative Secretary and Commis sioner, Home Department, State of Rajasthan in exercise of powers under Section 834 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1989 (for short 'the Act ') on reaching his subjective satisfaction that the detenu has been involved in illegal business of smuggled charas and heroin and other psychotropic substances.
The relevant facts as set out in the grounds of deten tion giving rise to this appeal may be recapitulated as follows: The detenu Gazi Khan @ Chotia was actively involved in illegal and objectionable activities by organising a group of smugglers and financing them in the activities of smug gling without directly involving himself in such activities.
However, the police of Jaisalmer has opened a history sheet showing the indirect involvement of the detenu in such smuggling activities.
The modus operandi of the detenu is revealed in the statements recorded under Section 108 of the Customs Act from a number of smugglers who were apprehended in the course of smuggling.
On 3.11.
1986 the detenu has himself given a statement before the Customs Officer admit ting his involvement in smuggling of readymade garments and bides.
He was suspected in Offence No. 32 dated 30.3.1988 as well in Offence No. 17 dated 17.4.88 under the provisions of the Act as well under Section 25 of the Arms Act.
But since no evidence was available incriminating the detenu with those offences no action could be taken.
Further the detenu is said to have been involved along with his associates in certain criminal cases registered under the provisions of the Indian Penal Code.
The detaining authority on the above materials placed before him has passed this impugned order.
The High Court before which he challenged the impugned order of detention on various grounds has dismissed the Writ Petition holding that all the contentions did not merit consideration.
Hence this appeal.
The learned counsel appearing on behalf of the appel lant, raised several contentions, the main thrust of which being that the representation made by the detenu was not decided within.
a reasonable time and hence the delay is fatal to the detention.
This point has been taken even before the High Court.
But the High Court accepting the explanation given by the Deputy Superintendent of Police, Jaisalmer in his additional affidavit filed on behalf of the respondents spumed that plea observing: "In the present case as from the facts mentioned in the additional affidavit and referred to above, it cannot be said that there was undue lethargy or indifference." 835 Under Ground No. (d) of paragraph 16 of the Special Leave Petition, a contention is raised with regard to the delay of disposal of the representation stating that "the extraordinary delay of 27 days in consideration of representation of the petitioner is sought to be explained by mere ipso dixit of the detaining authorities who merely rest content with the skeletal chronology of days taken allegedly by several authorities with copies of unexplained silence about why actually several days as alleged by au thorities were taken to process and consider the representa tion of petitioner.
" Before this Court a reply is filed by the Deputy Super intendent of Police, Jaisalmer stating that he is "appointed as Officer Incharge in this case" and that he is replying to the allegations made in the Special Leave Petition with reference to the record connected with this case.
In para graph 15(d) of his reply, it is averred that "there is no delay in the consideration of representation of the peti tioner.
" The same Deputy Superintendent of Police in an additional affidavit filed before the High Court has sought to explain the delay stating that the representation of the detenu was placed before the Assistant Secretary on 19.6.
1989 with a proposal that a report might be called from the District Magistrate, Jaisalmer, who was the sponsoring authority, that the District Magistrate who received the communication on 22.6.1989 forwarded his comments to the State Government on 29.6.1989, that the comments were re ceived by the State Government on 1.7. 1989 and were placed for perusal of the Assistant Secretary on 3.7.1989 and that the Assistant Secretary after putting up a note incorporat ing the comments of the District Magistrate on the represen tation placed the same for perusal to the Deputy Secretary on 9.7.1989 and thereafter on the recommendation of the Special Secretary (Home) the representation was rejected on 11.7.1989.
A perusal of the above additional affidavit shows that the Deputy Superintendent of Police speaks on behalf of the detaining authority, namely, the State Government as well the authorities who dealt with the representation, namely, the Assistant Secretary and the Special Secretary (Home Department).
Finally, in regard to the delay in the disposal of the representation he states in para 7 of the said affi davit thus: " . . The delay has occasioned not by lack of deligence 836 or promptness on the part of the party concerned but due to unavoidable circumstances and for the reasons entirely beyond the control of the Detaining Authority.
" In this connection, we would like to point out that the main reply and the additional affidavit before the High Court as well as the reply affidavit before this Court are filed only by the same Deputy Superintendent of Police on behalf of the Respondents 1 and 2.
After the judgment was reserved, we after going through the papers directed the matter to be reported for further hearing.
Accordingly the matter was listed on 17.4.1990 on which date we asked the learned counsel for the respondents to explain as to under what authority the Deputy Superin tendent of Police has arrogated himself to the knowledge of the entire file relating to the impugned order and speaks for the detaining authority and other authorities who subse quently dealt with the file.
The learned counsel took an adjournment and has now filed an additional affidavit sworn by the Commissioner and Secretary (Home Department) dated 21.4.1990.
In the present additional affidavit no explana tion is given to our query.
The explanation given by the Secretary in his affidavit for the complaint of delayed disposal of the representation is as follows: "That there was no inordinate delay in considering the representation of the petitioner and the same was rejected after careful consideration.
" We are terribly shocked and surprised to note that a police officer who seems to have no connection whatsoever with this detention order and who had not at any relevant time personally dealt with the case has come forward to swear about the entire proceedings from the beginning right up to the rejection of the representation including the holding of the meeting of the Advisory Board on behalf of the appropriate authority.
This practice of allowing a police officer who has not dealt with the case at any point of time at any level and who in the very nature of the case could not have any personal knowledge of the proceedings, to swear the counter and reply affidavits on behalf of the appropriate authorities should be highly deprecated and condemned and the counter and reply affidavits sworn by such officer merit nothing but rejection.
This Court on several occasions has expressed its views that in response to the Rule Nisi a counter affidavit should normally be filed 837 by the detaining authority himself though it cannot be suggested as a rigid or inflexible rule applicable in all cases of detention under all circumstances.
However, when allegation of mala fide or abuse of powers or personal bias is attributed to the detaining authority, the said authority should himself swear to the counter affidavit.
In the ab sence of any such allegation in the petition a counter affidavit may be sworn by a responsible officer who person ally dealt with or processed the case or by an officer duly authorised under the Rules of Business of the Government concerned.
A Constitution Bench of this Court in the State of Bombay vs Purushottam Jog Naik, ; in which a similar question arose, the learned Judges answered as follows: " . . if the Home Secretary has the requisite means of knowledge, for example, if the Minister had told him that he was satisfied or he had indicated satisfaction by his con duct and act and the Home Secretary 's affidavit was regarded as sufficient in the particular case, then that would con stitute legally sufficient proof.
But whether that would be enough in any given case, or whether the "best evidence rule" should be applied in strictness in that particular case, must necessarily depend upon its facts.
In the present case, there was the element that 57 cases were dealt with in the course of 6 days and orders passed in all on one day.
But we do not intend to enter into the merits.
All we desire to say is that if the learned Judges of the High Court intended to lay down as a proposition of law that an affida vit from the Minister in charge of the department is indis pensable in all such cases, then they went too far." In Ranjit Dam vs State of West Bengal, 16 the counter affidavit was filed by the Assistant Secretary, Home (Special) Department, who was authorised to file it as the detaining authority had since then been appointed as Secretary of the State Electricity Board.
This Court in that circumstance stated thus: "The reason given in this counter affidavit for the District Magistrate not making the affidavit himself does not appear to be satisfactory.
But as nothing terms on that fact we need say no more about it for the present.
" Sarkaria, J. in Shaik Hanif vs State of West Bengal, ; observed thus: 838 "Since the Court is precluded from testing the subjective satisfaction of the detaining authority by objective stand ards, 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 author ity on whose subjective satisfaction the detention order under Section 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 submit ted 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.
" The learned Judge after referring to Ranjit Dam 's case (albeit) and to I.N. Roy vs State of West Bengal, stated as under: "Nevertheless, the failure to furnish the counter affidavit of the Magistrate who passed the order of detention, is an impropriety.
In most cases, it may not be of much conse quence but in a few cases, for instance, where mala fides or extraneous considerations are attributed to the Magistrate or the detaining authority, it may, taken in conjunction with other circumstances, assume the shape of a serious infirmity, leading the Court to declare the detention ille gal.
" 71 having regard to the facts of that case wherein the Deputy Secretary Home) filed the counter instead of District Magistrate it was held that he mere omission to file the affidavit by District Magistrate did not vitiate the deten tion order.
Speaking for the Bench, Krishna Iyer, J. in Bhut Nath Mete vs State of West Bengal, 11974] 1 SCC 645 at page 658 (para 21) has expressed his considered view on this point as hereunder: "True, we should have expected an affidavit from the detain ing authority but even that is felt too inconvenient and a Deputy Secretary who merely peruses the records and swears an affidavit in every case is the poor proxy.
Why 839 is an affidavit then needed at all? The fact of subjective satisfaction, solemnly reached, considering relevant and excluding irrelevant facts, sufficient in degree of danger and certainty to warrant pre emptive casting into prison, is best made out by the detaining District Magistrate, not one who professionally reads records and makes out a precis in the form of an affidavit.
The purpose is missed, going by the seriousness of the matter, the proof is deficient, going by ordinary rules of evidence, and the Court is denied the benefit of the word of one who takes responsibility for the action, if action has to be taken against the detainer later for misuse.
We are aware that in the exigencies of adminis tration, an officer may be held up far away, engrossed in other important work, thus being unavailable to swear an affidavit.
The next best would then be the oath of one in the Secretariat who officially is cognisant of or has par ticipated in the process of approval by Government not one who, long later, reads old files and gives its gist to the Court.
Mechanical means are easy but not legitimate.
We emphasize this infirmity because routine summaries of files, marked as affidavits, appear in the returns to rules nisi, showing scant courtesy to the constitutional gravity of deprivation of civil liberty.
In some cases, where a valid reason for the District Magistrate 's inability to swear affidavits directly has been furnished, this Court has accepted the concerned Deputy Secretary 's affidavit.
This should, however, be the exception, not the rule.
" Khanna, J. in Asgar Ali vs District Magistrate, Burdwan & Ors., while answering a contention that an affidavit by the detaining authority was essential for sustaining the validity of the detention order observed as follows: "Although normally the affidavit of the person actually making the detention order should be filed in a petition for a writ of habeas corpus, the absence of such an affidavit would not necessarily be fatal for the case of the respond ents.
It would indeed depend upon the nature of allegations made by the detenu in the petition for determining whether the absence of affidavit of the person making the detention order introduces a fatal infirmity.
In case an allegation is made that the officer making the detention order was actuat ed by some personal bias against the detenu in 840 making the detention order, the affidavit of the person making the detention order would be essential for repelling that allegation.
Likewise, such an affidavit would have to be filed in case serious allegations are made in the peti tion showing that the order was mala fide or based upon some extraneous considerations.
In the absence of any such alle gation in the petition, the fact that the affidavit filed on behalf of the respondents is not that of the District Magis trate but that of the Deputy Secretary, Home (Special) Department of the Government of West Bengal would not by itself justify the quashing of the detention order.
" In Suru Mallick vs State of West Bengal, , this Court accepted the affidavit of the Deputy Secretary (Home) who dealt with the matter as the District Magistrate was not available and preoccupied with some urgent business.
In Gulab Mehra vs State of U.P. & Ors., [ 1988] 1 SCR 126, a Station House Officer of Kydganj Police Station filed the counter stating that District Magistrate had passed the detention order when the appellant was already in jail on the apprehension that the appellant therein was likely to be released on bail in the near future.
Ray, J. speaking for the Bench while setting aside the order of detention held thus: "This clearly goes to show that the Sub inspector has arro gated to himself the knowledge about the subjective satis faction of the District Magistrate on whom the power is conferred by the Act.
The District Magistrate, the detaining authority in this case has not chosen to file his affidavit.
The affidavit in opposition filed by the Station Officer of Police implies that he has access to the file of the Dis trict Magistrate or he influenced the decision of the Dis trict Magistrate for making the detention order.
" Again in State of Gujarat vs Sunil Fulchand Shah & Anr., ; , accepting a further affidavit of the Deputy Secretary (Home Department), this Court did not attach much importance to the fact that the affidavit was not filed by the detaining authority personally.
However, the Court said: "It is true that in a case where a point as mentioned above arises the detaining authority should personally affirm on oath the stand taken on his behalf, but it cannot be sug gested as an inflexible rule applicable to all detention cases irrespective of the circumstances." 841 Recently in Madan Lal Anand vs Union of India, Dutt, J. speaking for the Bench pointed out: "There can be no doubt that a deponent who has no personal knowledge about any fact may, on the basis of some other facts, make his submissions to the court.
We do not think that any importance should be attached to the said statement made by the deponent in the counter affidavit.
" Thereafter the learned Judge has expressed his views that when there is an allegation of mala fide or bias made against the detaining authority, then the detaining authori ty should himself swear to the counter affidavit.
Ultimately having regard to the allegation made therein and to the fact that the Under Secretary to the Government has filed the counter, the learned Judge pointed out: "Merely because the detaining authority has not sworn an affidavit, it will not in all circumstances be fatal to the sustenance of the order of detention." As we have pointed out supra the reply affidavit and the additional affidavit before the High Court as well as this Court are filed by the Deputy Superintendent of Police who does not seem to have any connection whatsoever with the passing of the order or dealing with or processing the file at any point of time.
In fact, the Deputy Superintendent of Police could not have got any personal knowledge with the passing of the order or its subsequent proceeding since the impugned order has been passed by the State Government and the subsequent proceedings have been dealt with by the officials of the Secretariat.
Reverting to the facts of the case there is no explanation for the delay from 3rd to 9th July 1989, i.e. for 7 days for the Assistant Secretary merely to put up a note on the basis of the comments of the District Magistrate.
The present additional affidavit sworn to by the Commissioner and Secretary on 21.4.1990 also does not whisper any explanation as to why such a delay of 7 days had occurred at the hands of the Assistant Secretary.
The learned counsel appearing for the appellant in support of his contention that the unexplained delay has vitiated the order has placed reliance on a decision of this Court in Rama Dhondu Borade vs V.K. Saraf, Commissioner of Police & Ors., to which decision one of us (Ratnavel Pandian, J.) was a party.
In that decision 842 after referring to various decisions of this Court including Smt.
Shalini Soni vs Union of India.
[ ; the following proposition was laid down: "The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India.
Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu for wards this representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation within reasona ble dispatch and to dispose the same as expeditiously as possible.
This constitutional requirement must be satisfied with respect but if this constitutional imperative is ob served in breach, it would amount to negation of the consti tutional obligation rendering breach would defeat the very concept of liberty the highly cherished right which is enshrined in Article 21 of the Constitution." However, in the same decision it has been pointed out that "what is reasonable dispatch depends on the facts and cir cumstances of each case and no hard and fast rule can be laid in that regard.
" We have already expressed that the affidavit filed by the Deputy Superintendent of Police is not worth consideration and there is absolutely no explana tion for the delay caused at the hands of the Assistant Secretary.
Therefore, for the reasons stated above, we set aside the impugned order of detention on the ground that there is a breach of constitutional obligation as enshrined under Article 22(5) of the Constitution of India.
In the result, the appeal is allowed and the detenu is directed to be set at liberty forthwith.
P.V. Appeal al lowed.

summary/full:
The appellant challenged before the High Court the order of detention passed against him under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psycho tropic Substances Act, 1989, on various grounds including delay in disposal of his representation.
An affidavit was filed by a Deputy Superintendent of Police, on behalf of the respondents stating that the representation was placed before the Assistant Secretary on 19.6.1989, a report was called for from the District Magistrate, the comments, which were received by the State Government on 1.7.1989, were placed before the Assistant Secretary on 3.7.1989 who, in turn, submitted to the higher authorities with his note on 9.7.1989 and the representation was rejected on 11.7.1989.
The High Court dismissed the Writ Petition holding that there was no undue lethargy or indifference.
In the appeal, by special leave, on behalf of the dete nu, it was contended that the detenu 's representation was not decided within a reasonable time and hence the extraor dinary delay of 27 days was fatal to the detention.
A reply was filed by the same Deputy Superintendent of Police, as Officer Incharge of the case, who filed the affidavit before the High Court, stating that there was no delay in the consideration of the representation.
832 Subsequently, on the direction of the Court, an addi tional affidavit sworn by the Commissioner and Secretary (Home Department) stating that there was no inordinate delay in considering the representation and it was rejected after careful consideration, was filed.
Allowing the appeal, this Court, HELD: 1.
There is no explanation for the delay from 3rd to 9th July, 1989 i.e. for 7 days, for the Assistant Secre tary to merely put up a note on the basis of comments of the District Magistrate.
The additional affidavit sworn to by the Commissioner and Secretary does not whisper any explana tion as to why such a delay of 7 days had occurred at the hands of the Assistant Secretary.
The order of detention is, therefore, a breach of constitutional obligation as en shrined under Article 22(5) of the Constitution of India.
[841F G; 842F] Rama Dhondu Borade vs V.K. Saraf, Commissioner of Police Smt.
Shalini Soni vs Union of India, ; , referred to.
2.1 A counter affidavit should normally be filed by the detaining authority himself, but this is not a rigid or inflexible rule and, in the absence of any allegations of mala fide or abuse of powers of personal bias attributed to the detaining authority, it may be sworn by a responsible officer who personally dealt with or processed the case or by an officer duly authorised under the Rules of Business of the Government concerned.
However, the practice of allowing a police officer who has not dealt with the case any point of time at any level and who in the very nature of the case could not have any personal knowledge of the proceedings, to swear the counter and reply affidavits on behalf of the appropriate authorities should be highly deprecated and condemned and the counter and reply affidavits sworn by such officer merit nothing but rejection.
[836H; 837A B; 836F G] The State of Bombay vs Purushottam Jog Naik, ; ; Ran]it Dam vs State of West Bengal, ; Shaik Hanifv.
State of West Bengal; , ; J.N. Roy vs State of West Bengal, ; Bhut Nath Mete vs State of West Bengal, ; at page 658; Asgar Ali vs District Magistrate Burdwan & Ors., Suru Mallick vs State of West Bengal, [1975] 833 4 SCC 470; Gulab Mehra vs State of U.P. & Ors., [19881 ] SCR 126; State of Gujarat vs Sunil Fulchand Shah & Anr., ; and Madan Lal Anand vs Union of India, , referred to.


judgement:
Appeal No. 433 of 1957.
Appeal from the judgment and order dated August 24, 1956, of the Rajasthan High Court at Jodhpur in Civil Misc.
Case No. 17 of 1955.
B. D. Sharma, for the appellant.
A. N. Kripal, R. H. Dhebar and D. Gupta, for the respondent 1958.
October 17.
The Judgment of the Court was delivered by VENKATARAMA AIYAR J.
This is an appeal against the judgment of the High Court of Rajasthan in a reference under section 66(1) of the Indian Income tax Act, 1922, hereinafter referred to as the Act.
The facts, so far as they are material, are these The appellant is a resident of what was once the independent State of Udaipur.
There was in that State a Company called the Mewar Industries, Ltd., registered under the provisions of the law in force in that State, and the appellant held 266 shares in that Company.
On January 18, 1950, the Company went into liquidation, and on April 22, 1950, the liquidator distributed a portion of the assets among the shareholders, and the appellant was paid a sum of Rs. 26,000 under this distribution.
It is common ground that this sum represents the undistributed profits of the Company which had accrued during the six accounting years preceding the liquidation.
It should be mentioned that there was in the State of Udaipur no law imposing tax on income, and that it was only under the Indian Finance Act, 1950 that the residents of the State of Rajasthan, in which the State of Udaipur had merged, became liable for the first time to pay tax on their income.
That Act came into force on April 1, 1950.
We are concerned in these proceedings with the assessment of tax for the year 1951 52, and that, under section 3 of the Act, has to be on the income of the previous year, i.e., 1950 51.
Now, the dispute in the present case relates to the sum of Rs. 26,000 paid by the liquidator to the appellant on April 22, 1950.
By his order dated July 3, 1952, the Income tax Officer held 206 that this was dividend as defined in section 2(6A)(c) of the Act and included it in the taxable income of the appellant in the year of account.
The appellant took this order in appeal to the Appellate Assistant Commissioner who by his order dated January 12, 1953, confirmed the assessment.
There was a further appeal by the appellant to the Appellate Tribunal, who also dismissed it on November 10, 1953.
On the application of the appellant, the Appellate Tribunal referred the following question for the decision of the High Court: " Whether on the facts and in the circumstances of this case, the aforesaid sum of Rs. 26,000 was liable to be taxed in the assessee 's hands as dividend within the meaning of that term in section 2(6A)(c) of the Indian Income tax Act.
" The reference was heard by Wanchoo, C. J. and Modi, J. who by their judgment dated August 24, 1956, answered it in the affirmative.
It is against this judgment that the present appeal has been preferred on a certificate granted by the High Court under section 66A(2) of the Act.
The sole point for determination in this appeal is whether the sum of Rs. 26,000 received by the appellant on April 22, 1950, is dividend as defined in.
section 2(6A)(c) of the Act.
That definition, as it stood on the relevant date and omitting what is not material, was in these terms: " 6(A) 'dividend ' includes (a) any distribution by a company of accumulated profits whether capitalised or not if such distribution entails the release by the company to its shareholders of all or any part of the assets of the company ; (c) any distribution made to the shareholders of a company out of accumulated profits of the company on the liquidation of the company: Provided that only the accumulated profits so distributed which arose during the six previous years of the company preceding the date of liquidation shall be so included;".
207 The definition of " previous year " as given in section 2(l 1), omitting what is not material, is as follows: " Previous year " means in respect of any separate source of income, profits and gains (a) the twelve months ending on the 31st day of March next preceding the year for which the assessment is to be made. " On these provisions, the contention of the appellant is that under the definition in section 2(6A)(c) the assets of a company distributed after it has gone into liquidation will be dividend only if they represented the profits thereof accumulated during the six previous years preceding the date of the liquidation, and that, in the present case, though the amounts distributed came out of the accumulated profits of the Company, those profits had not been accumulated within the six previous years of the liquidation of the Company.
It is not in dispute that the profits which were distributed had been accumulated during the years 1943 44 to 1948 49, i.e., during the six years preceding the liquida tion.
The point in controversy is whether those years can be said to be " previous years " within section 2(6A)(c) of the Act.
The appellant contends that " previous year " as defined in section 2(l 1) of the Act means the year which is previous to the assessment year, that accordingly when there is no year of assessment, there can be no previous year, that construing the words " six previous years " in section 2(6A)(c) in the light of the definition of "previous year" in section 2(l 1) of the Act, the years 1943 44 to 1948 49 cannot be held to be previous years, because the Indian Income tax Act came into force in the State of Rajasthan only on April 1, 1950, and prior to that date there was at no time any law imposing tax on income in the State of Udaipur, that there was therefore no year of assessment, and that, in consequ ence, the sum of Rs. 26,000 received by the appellant on April 22, 1950, is not a dividend as defined in section 2(6A)(c).
The contention of the respondent which has been accepted by the Income tax authorities and by the learned Judges in the Court below is that the expression " six previous years" is used in section 2(6A)(c) not in the technical and restricted sense in which the 208 words " previous year " are used in section 2(11) of the Act, and that, in the context, it means six consecutive accounting years preceding the liquidation of the company.
The question is which of these two interpretations is the right one to be put on the language of section 2(6A)(c).
The argument of Mr. Sharma for the appellant is that section 2(11) having defined the meaning which the expression 'previous year" has to bear in the Act, that meaning should, according to the well settled rules of construction, be given to those words wherever they might occur in the statute, and that that is the meaning which must be given to the words " six previous years " in section 2(6A)(c).
It is to be noticed that the definitions given in section 2 of the Act are, as provided therein, to govern " unless there is anything repugnant in the subject or context ".
Now, the appellant contends that the words " unless there is anything repugnant " are much more emphatic than words such as " unless the subject or context otherwise requires ", and that before the definition in the interpretation clause is rejected as repugnant to the subject or context, it must be clearly shown that if that is adopted, it will lead to absurd or anomalous results.
And our attention was invited to authorities in which the above rules of construction have been laid down.
It is unnecessary to refer to these decisions as the rules themselves are established beyond all controversy, and the point to be decided ultimately is whether the application of the definition ins.
2(l 1) is repelled in the context of section 2(6A)(c).
Turning to the language of section 2(II), we have this that according to the definition contained therein, " previous year " is the year which is previous to the year of assessment, and that means that there can be only one previous year to a given year of assessment.
When section 2(6A) (c) speaks of six previous years, it is obvious that it uses the expression " previous year " in a sense different from that which is given to it in section 2(l 1), because it would be a contradiction in terms to speak of six previous years in relation to any specific assessment year.
It was argued that under section 13(2) of 209 the , words in the singular should be read as including the plural, and that, therefore, the definition of "previous year" in section 2(l 1) could be read as meaning " previous years ".
But section 13 only enacts a rule of construction which is to apply " unless there is anything repugnant in the and to read a " previous year " in section 2(l 1) would be to nullify the previous year " enacted therein, and such a construction must therefore be rejected as repugnant to the context.
It was then suggested that all the six previous years might be regarded as previous each to the next following year if that was itself a year of assessment, and that such a construction would, consistently with the contention of the appellant, give full effect to the definition in section 2(11) of the Act.
But this argument overlooks that while there may be several preceding years to a given year of assessment there can be only one previous year in relation to it, and that it would make no sense to speak of six previous years with reference to a year of assessment.
We are satisfied that it would be repugnant to the definition of " dividend " in section 2(6A)(c) to import into the words " six previous years " the definition of previous year" in section 2(l 1) of the Act.
An examination of the policy underlying section 2(6A)(c) also leads to the same conclusion.
When a company makes profits and instead of distributing them as dividend accumulates them from year to year and at a later date distributes them to the shareholders, the amounts so distributed would be dividend under section 2(6A) (a), but when a company which has so accumulated the profits goes into liquidation before declaring a dividend and the liquidator distributes those profits to the shareholders, it was held in Commissioners o Inland Revenue vs Burrell (1) that such distribution was not a dividend because when once liquidation intervenes, there was no question of distribution of dividends, and all the assets of the company remaining after the discharge of its obligations were surplus divisible among (1) 210 the shareholders as capital.
It was to remove this anomaly that the Indian legislature, following similar legislation by British Parliament in the year 1927, enacted section 2(6A) (1) in 1939.
The effect of this provision is to assimilate the distribution of accumulated profits by a liquidator to a similar distribution by a company which is working; but subject to this limitation that while in the latter the profits distributed will be dividend whenever they might have been accumulated, in the former such profits would be dividend only in so far as they came out of profits accumulated within six years prior to liquidation.
Now, the reason of it requires that those years must be a cycle of six years preceding the liquidation, arid that is what is meant by the words " previous years ".
It was argued for the appellant that if that was what was intended by the legislature, that was sufficiently expressed by the words " preceding the liquidation ", and that the words previous years " would be redundant.
But the words preceding years " would have meant calendar years, whereas the accounting years of the company for ascertainment of profits and loss might be different from the calendar years, and the words " previous year " would be more appropriate to connote the financial year of a company.
Now, it should be mentioned that when a company in liquidation distributes its current profits,, that would also be not dividend as held in Burrell 's case (1), and the law to that extent has been left untouched by section 2(6A)(c).
And it has accordingly been held by the High Courts that the current profits of a company in liquidation which are distributed to the shareholders are not dividend within section 2(6A)(c), Vide Appavu Chettiar vs Commissioner of Income tax (2) and Girdhardas & Co. Ltd. vs Commissioner of Incometax (3).
Therefore, accumulated profits which are sought to be caught in section 2(6A) (c) would be the profits accumulated in the financial years preceding the year in which the liquidation takes place, and it is this that is sought to be expressed by the words " previous years " in section 2(6A) (c).
In the present case, as the Company went into liquidation on January 18, 1950, (1) (2) (3) 211 excluding the current year which commenced on April 1, 1949, the six previous years will be the years 1943 44 to 1948 49.
So far, we have considered the question on the language of section 2(6A)(c) and the policy underlying it.
On behalf of the respondent, certain authorities were cited as supporting his contention that the expression it previous years " in section 2(6A) (c) is not to be interpreted in the sense in which the expression " previous year" is defined in section 2(l 1) of the Act.
It is sufficient to refer to one of them, and that is the decision of this Court in Commissioner of Income tax, Madras vs K. Srinivasan and K. Gopalan (1).
There, the point for decision was as to the interpretation to be put on the words " end of the previous year " in section 25, sub sections
(3) and (4) of the Act which dealt with discontinuance of or succession to a business, and it was held that the expression " previous year " in those provisions meant an accounting year expiring immediately preceding the date of discontinuance or succession.
The decision is not itself relevant to the present discussion, but certain observations therein are relied on as bearing on the point now under consideration.
Mahajan, J. delivering the judgment of the Court observed: " The expression 'previous year ' substantially means an accounting year comprised of a full period of twelve months and usually corresponding to a financial year preceding the financial year of assessment.
It also means an accounting year comprised of a full period of twelve months adopted by the assessee for maintaining his accounts but different from the financial year and preceding a financial year.
For purposes of the charging sections of the Act unless otherwise provided for it is co related to a year of assessment immediately following, but it is not necessarily wedded to an assessment year in all cases and it cannot be said that the expression 'previous year ' has no meaning unless it is used in relation to a financial year.
In a certain context it may well mean a completed accounting year immediately preceding the happening of a contingency." (I) , 501 212 The learned Judges in the Court below have relied on these observations, and quite rightly, as supporting their conclusion that the expression " six previous years " in.
section 2(6A) (c) means only the six accounting years of a company preceding the date of liquidation.
The appellant sought to raise one other contention, and that is that the Indian Companies Act came into operation in the Udaipur territory on April 1, 1951, only by force of the Part B Stater, Laws Act (111 of 1951), that during the relevant period the Mewar Industries Ltd. was not a company as defined in section 2(5A) of the Act, and that therefore the distribution of assets made by that Company on April 22, 1950, could not be held to be a dividend as defined in section 2 (6A) (c).
But that is not a question which was referred for the opinion of the High Court under section 66(1) of the Act; nor is it even dealt with by the Tribunal and therefore cannot be said to arise out of its order.
Moreover, whether the Mewar Industries Ltd., is a Company as defined in the Indian Income tax Act is itself a question over which the parties are in controversy.
The definition of " Company " under the Indian Income tax Act has undergone several changes from time to time, and on the relevant date it stood as follows: " 2(6) 'Company ' means (i) any Indian Company or (ii) any association, whether incorporated or not and whether Indian or non Indian, which is or was assessable or was assessed as a company for the assessment for the year ending on the 31st day of March, 1948, or which is declared by general or special order of the Central Board of Revenue to be a company for the purposes of this Act.
" It is contended for the respondent that the Mewar Industries Ltd., was an association which was assessable as a Company for the year ending March 31, 1948, and that it was, in fact, assessed; but the appellant disputes this.
As the point turns on disputed question of fact.
, it cannot be allowed to be raised at this stage.
213 In the result, we hold that the sum of Rs. 26,000 received by the appellant on April 22, 1950, ",as dividend as defined in section 2(6A) (c) of the Act and is chargeable to tax.
The appeal fails, and is dismissed with costs.
Appeal dismissed.

summary/full:
The appellant, a resident of the once independent State of Udaipur, held 266 shares in the Mewar Industries Ltd., a company registered in that State.
There was no law in the State of Udaipur imposing tax on income and it was on April 1, 1950that for the first time the residents of Rajasthan, in which the State had merged, became liable to pay such a tax.
On January 18, 1950, the Company went into liquidation and on April 22, 1950, the liquidator distributed a portion of the assets among the shareholders, the appellant receiving a sum of Rs. 26,000.
This sum represented the undistributed profits of the company which had accrued during the six accounting years preceding the liquidation.
The income tax authorities included this sum in the taxable income of the appellant for the assessment year 1051 52 holding that it was dividend as defined in section 2(6A)(c) of the Indian Income tax Act.
Under section 2(6A)(c) the distribution of accumulated profits which arose during the " six previous years " preceding the date of liquidation would be dividend.
Section 2(1) defined " previous year " to mean the year which was previous to.the assessment year.
The appellant contended that " previous years " in section 2(6A)(c) must be read in the light of the definition is section 2(1) and as in the present case there had been no law imposing a tax prior to April 1, 1950, the profit for the years 1943 44 to 1948 49 cannot be held to be profits which " arose during the six previous years ", and consequently could not be taxed as dividend as defined in section 2(6A)(c) of the Indian Income tax Act.
Held, that the said sum was dividend within the meaning of section 2(6A)(c) of the Act and was liable to tax.
The definitions given in section 2 Of the Act applied unless there was anything repugnant in the subject or context.
It would be repugnant to the definition of " dividend " in section 2(6A)(c) to import into the expression " six previous years " the definition of " previous year " in section 2(ii) of the Act.
By the expression "previous years " in section 2(6A)(c) of the Act was meant the financial years preceding the year in which liquidation took place.
Commissioner of Income tax, Madras vs K. Srisivasan and Gopalan, , referred to. 205


judgement:
vil Appeal Nos.
3131 and 3132 of 1988.
From the 'Judgment and Order dated 15.4.1987 of the A.P. Administrative Tribunal in R.P. No. 1909 of 1985.
K. Madhava Reddy, G. Prabhakar and Narasimhu P.S. (NP) for the Appellant.
section Ramachandran, B. Kanta Rao and N. Venkatarayudu for the Respondents.
Ms. Rani Chhabra and B. Rajeshwar Rao for the Interveners.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
These appeals are directed against the order of the A.P. Administrative Tribunal, Hyderabad dated April 15, 1987 directing the State Govern ment to consider the cases of Officers for promotion to the category of Additional Director of Medical and Health Serv ices and equivalent posts on the basis of seniority includ ing service in their lower cadre.
The appointment in the A.P. Medical and Health Services is regulated by the statutory rules called "The Special Rules for the A.P. Medical and Health Services, 1982" (called shortly as the "Rules").
All the respondents were originally recruited as Civil Assistant Surgeons upon selection by the State Public Serv ice Commission.
The minimum qualification for Civil Assist ant Surgeon is M.B.B.S.
The post of Civil Assistant Surgeon is equivalent to the post of Assistant Professor.
They are inter transferable posts but a Post Graduate Degree is necessary for posting as Assistant Professor.
The Civil Assistant Surgeon is also posted as Tutor in the teaching side if he has no Post Graduate Degree qualification.
In the select list prepared by the Public Service Commission, respondents 1 to 12 were ranked above the other respondents, but they were not considered for promotion to the category of Additional Director and other equivalent posts.
Their juniors in the original cadre were appointed to such posts, and that was their grievance before the A.P. Administrative Tribunal.
58 All Civil Assistant Surgeons including Assistant Profes sors and Tutors are eligible for promotion as Deputy Civil Surgeon on the basis of seniority of Assistant Professors/Civil Assistant Surgeons and Tutors.
It is said that the post of Deputy Civil Surgeons are not cadre posts.
They are just like Selection Grade posts covering 15% of total cadre strength of Civil Assistant Surgeon posts.
They are common both in teaching cadre as well as in non teaching cadre.
From the very beginning after formation of Andhra Pra desh State, the Civil Assistant Surgeons are appointed by direct recruitment except perhaps in the year 1984, when there was direct recruitment of Assistant Professors with the minimum qualification of Post Graduate degree in the concerned speciality.
The Rules contain inter alia two parts; Part I and Part II.
We are concerned with Part I only.
It consists of the following three branches: Branch I Teaching cadre Branch II Non teaching cadre Branch III Laboratories Branch I Teaching cadre again consists of Class I and Class II.
Under Class I. there are six categories of posts.
They are as follows: Category 1 Additional Director of Medical and Health Services (Medical Education), Principals of Medical Colleges, Superintendents of Medical Colleges, Superintendents of Teaching Hospitals and Principal, Govern ment Dental College.
Category 2 Professors Clinical.
Category 3 Professors Non Clinical.
Category 4 Dental Professors.
Category 5 Deputy Civil Surgeons Clinical and non clinical.
Category 6 Deputy Civil Surgeon Dental.
Class II consists of the following three categories: Category 1 Assistant Professors Clinical and non clinical.
59 Category 2 Assistant Professors Dental.
Category 3 Tutors.
Rule 2 under Branch I Teaching cadre provides for method of recruitment to different classes and categories.
This Rule is important and may be read in full: "Rule 2 Appointment Appointment to the various classes and categories shall be made as follows: Class and Category Method of Recruitment Class I Category 1 (i) By promotion from among the Additional Director of holders of the post of Professors Medical & Health Services included in Class I Categories 2 (Medical Education), and 3 of this branch with not less Principals of Medical than three years service of which Colleges,Superintendents at least two years service in the of Teaching general said Category on First year in Hospitals and Principal, which panel is prepared.
Government Dental College.
Provided that the post of princi pal, Government Dental College shall be filled in by promotion from among the holders of the posts included in class I,Cate gory 4.
(ii) who have completed 45 years of age on first January or 1st July of the year in which panel is prepared.
Category 2 (i) By promotion from among the holders of the posts of Deputy Civil Surgeons (clinical) included in Class I, Catego ry 5 of this branch; (ii) By promotion from the holders of posts of Assistant Professors (clinical) included in Class II, Category 1 of this branch if persons from item (i) are not available.
" Similar are the provisions for promotion to the posts of pro 60 fessors (non clinical) in Category 3: "Category 3: (i) By promotion from among the holders of the posts of Deputy Civil Surgeons (non clinical) included in Class I, Category 5 of this branch; (ii) By promotion from the holders of posts of Assistant Professors (Non clinical) included in Class II, Catego ry 1 of this branch if persons from item (i) above are not available.
" It will be convenient, if at this stage, we also read the amendment to the foregoing Rules made on March 29, 1988.
They are as follows: AMENDMENT TO SPECIAL RULES FOR THE ANDHRA PRADESH MEDICAL AND HEALTH SERVICES (G.O.M.No.
182, Health, Medical and Family Welfare (A 1) 29 March, 1988) 1.
Constitution . . 2.
Appointment to the various categories of posts shall be made as shown in the Table below: Category of Post Method of Recruitment Category: 1 Additional Director of By promotion from among the holders Medical & Health Service of the post of professors in Cate (Medical Education), gories 2 and 3 with not less than Principals of Medical three years of service of which at Colleges,Superintendents least two years shall be in one of Teaching General the said categories as on first Hospitals and Principals January or 1st July of the year in Government Dental which panel is prepared.
College.
There are three requirements for eligibility for considera tion 61 for promotion to the category of Additional Director and equivalent posts: (i) He should be in cadre 2 and 3 in Class I; (ii) He should have a minimum service of two years in the said categories; and (iii) He should have a total service of not less than three years.
Two years service in the category appears to mean two years service as Professor and this is not in doubt or dispute.
The dispute, however, is about the requirement of service of three years.
Whether that service should be only in Class I categories 2 and 3 or inclusive of service in Class II is the question for consideration.
The Tribunal appears to have accepted the latter view.
It has been held that promotion to the post of Additional Director and equiv alent posts is to be made on the basis of total period of service in including service in the lower categories subject to the condition that the person should be holding the post of Professor or equivalent post for at least two years.
Mr. Madhava Reddy, learned counsel for the appellants argued that the view taken by the Tribunal would be contrary to the rule of seniority in the cadre of Professors.
The seniority for zone of consideration for promotion should always be of the feeding cadre and not from any other cadre.
Reference was made to Rule 10 of the Rules and also to Rule 33(a) of the Andhra Pradesh State and Subordinate Services Rules.
Counsel also contended that the minimum three years of service provided under rule 2 in any event must be in class I in any category and it can never be in Class II Service.
We are unable to accept the submission of learned coun sel for the appellants, having regard to the facts and circumstances of this case.
Rule 10 of the Rules requires determination of seniority on unit wise.
It reads: "10.
Seniority.
For purposes of seniority and appointment as full members the posts included in this branch shall consti tute separate units as indicated below: Unit 1 Class I Category 1, viz.
Additional Director of Medical and Health Services (Medical Education),Principals of Medical Colleges, Superintendents of Teaching General Hospitals.
Unit 2 Class I Category 2 viz. (i) Professors (Clinical and nonclinical).
62 Unit 3 Class I Dental Professors.
provided that Deputy Civil Surgeons and Assistant Professors shall have separate seniority in order of speciality" Rule 33(a) of the A.P. Subordinate Service Rules pro vides that seniority of a person in service, class, category or grade shall, unless he has been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade.
It seems to us that the seniority in the category of professors in the teaching and non teaching cadre or in the lower cadre based on speciality wise may not be relevant for preparation of a penal for promotion to the cadre of Additional Director and other equivalent posts in Category.
Equally the service rendered as Deputy Civil Surgeon in category 5 cannot also be the basis for preparing the panel for consideration.
As observed earlier, Deputy Civil Surgeon is a common category in all the Branches; Branch I teaching cadre; Branch II non teaching cadre and Branch III Laboratories.
It is a part of the category of Civil Assistant Surgeons, and not cadre post.
It is just like selection grade post covering in all 15% of total cadre strength of Civil Assistant Surgeons.
The posts are distributed in all the three Branches and promo tion to the posts depends upon the available vacancies in every branch.
Furthermore, Rule 2 does not expressly exclude the service in Class II Cadre for preparing panel for considera tion for promotion to posts with which we are concerned.
We also consider that it would be unreasonable and unjust to exclude the service and overlook the vertical seniority in the substantive cadre to which everyone was selected by the Public Service Commission.
In medical profession there are specialities and specialities, but it is generally accepted that they are not of equal importance or utility.
However, the promotions are allowed on the basis of the respective specialities and the availability of promotional vacancies in such specialities.
A junior with relatively less impor tant speciality may be fortunate enough to get quick promo tion than his senior with a different speciality.
We are of the opinion that the juniors who get accelerated promotion on account of fortuitous circumstances depending upon their speciality and availability of vacancies in such speciality should not be allowed to march over their seniors for ap pointment to administrative posts.
Any advantage gained by juniors on such fortuitous circumstances of having some speciality and promotion should not impair the rights of their seniors for promotion to posts where speciality or teaching experience 63 is not called for.
The seniority determined in order of speciality should not therefore be the basis for promotion to administrative posts.
Any rule providing for the contrary may be vulnerable to attack on the ground of arbitrariness.
We therefore, concur with the view expressed by the tribunal and dismiss these appeals with costs.
Before parting with the case, however, it is necessary to point out that the imprecise drafting of the present Rules has led to misunderstanding and litigation and it would be proper for the State Government to have the word ings of the Rules properly amended with perspicuity to give effect to the view indicated.
N.P.V. Appeals dis missed.

summary/full:
Under Rule 2 of the Special Rules for the A.P. Medical and Health Services, 1982, which provided for the method of recruitment to different classes and categories in the A.P. Medical and Health Services, there were three requirements for eligibility for consideration for promotion to the Class I, Category I posts of Additional Director (Medical Educa tion) and equivalent posts.
These were (i) the person should be in categories 2 and 3 posts of Professors, (ii) he should have a minimum service of two years in the said categories, and (iii) he should have a total service of not less than three years.
The respondents were all originally recruited as Civil Assistant Surgeons, upon selection by the State Public Service Commission.
In the Select List prepared by the Commission, respondents No. 1 to 12 were recruited above the other respondents.
However, they were not considered for promotion to the category of Additional Director and other equivalent posts.
Hence the aggrieved respondents took their grievance to the State Administrative Tribunal.
The dispute before the Tribunal was whether the requirement of three years service should be only in Class I, Categories 2 and 3, or it was inclusive of service in Class II.
The Tribunal held that it should be on the basis of total period of service including in the lower categories, subject to the condition that the person should be holding the post of Professor or equivalent post for at least two years.
56 In the appeal before this Court, on behalf of the State.
it was contended that the seniority for zone of considera tion for promotion should always be of the feeding cadre and not from any other cadre.
and that the minimum of three years must be in Class I in any category and can never be in Class II service.
Dismissing the appeals, this Court, HELD: 1.1 The juniors who get accelerated promotion on account of fortuitous circumstances depending upon their speciality and availability of vacancies in such speciality should not be allowed to march over their seniors for ap pointment to administrative posts.
Any advantage gained by juniors on such fortuitous circumstances of having some speciality and promotion should not impair the rights of their seniors for promotion to posts where speciality or teaching experience is not called for.
The seniority deter mined in order of speciality should not.
therefore, be the basis for promotion to administrative posts.
Any rule pro viding for the contrary may be vulnerable to attack on the ground of arbitrariness.
[62G H; 63A] 1.2 It would be unreasonable and unjust to exclude the service and overlook the vertical seniority in the substan tive cadre to which everyone was selected by the Public Service Commission.
In medical profession, there are spe cialities but it is generally accepted that they are not of equal importance or utility.
However, the promotions are allowed on the basis of the respective specialities and the availability of promotional vacancies in such specialities.
A junior with relatively less important speciality may be fortunate enough to get quick promotion than his senior with a different speciality.
[62E G] 1.3 The seniority in the category of professors in the teaching and non teaching cadre or in the lower cadre based on speciality wise will not be relevant for preparation of a panel for promotion to the cadre of Additional Director and other equivalent posts in Category I. Equally.
the service rendered as Deputy Civil Surgeon in Category 5 cannot also be the basis for preparing the panel for consideration.
Further more.
Rule 2 does not expressly exclude the service in Class 11 Cadre for preparing panel for consideration for promotion to the Category of Additional Director and equiva lent posts.
[62B E] 2 Imprecise drafting of the Rules has led to misunder standing and litigation.
It would, therefore.
be proper for the State Government to have the wordings of the Rules properly amended with perspicuity to 57 give effect to the view indicated ' herein.
[63B C]