judgement:
Appeal No. 552 of 1962.
Appeal by special leave from the judgment and decree dated August 22, 1960 of the former Bombay High Court in appeal No. 432 of 1954 from Original Decree.
M. K. Nambiar, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant.
D. R. Prem, B. R. G. K. Achar and R. H. Dhebar, for the respondent.
March 3, 1964.
The Judgment of the Court was delivered by SUBBA RAO, J.
This appeal by special leave is directed against the judgment and decree of the High Court of Bombay confirming those of the Civil Judge, Senior Division, 986 Ahmednagar, Jr,, Special Civil Suit No. 6 of 1953 filed by the appellant against the State of Bombay for a declaration of his right to water from a particular source, and for consequential reliefs.
The appellant is the owner of Shankar Tukaram Karale Rampur Farm, situated at the tail outlet of the Godavari Right Bank Canal Distributary No. 17, The lands comprised in the said Farm originally belonged to Shankar Tukaram Karale, hereinafter called Karale.
In the year 1935 the said Karale had a farm for raising sugarcane consisting of 35 acres owned by him and about 65 acres of land taken on lease by him in Ahmednagar District.
He obtained sanction to irrigate his lands on the outlet No. 17 of the Godavari Right Bank Canal.
In or about the same year the Government of Bombay proposed to reserve certain area along the said Distributary Canal as "factory area".
After some correspondence between the said karale and the Government of Bombay, it was the appellant 's case, the Superintending Engineer agreed on July 14, 1939, to exclude Karale 's lands from the factory area and also to give him water perpetually on condition that he concentrated all his holdings on the tail outlet of Distributary No. 17 and to take the supply of water on volumetric basis.
Pursuant to that arrangement, Karale, by purchase or otherwise, concentrated his holdings and shifted his operations to that area and he was supplied water on the agreed basis.
In or about April 1948, the appellant and Karale entered into a partnership for exporting the said area whereunder the appellant had three fourths share and the said Karale had one fourth share.
Later on disputes arose between the appellant and Karale in respect of the partnership which culminated in a consent decree dated February 7, 1951, whereunder the appellant became the full owner of the partnership business with all its assets and liabilities, including the lands and the compact block and the right to use the canal water.
When the appellant applied for the recognition of the transfer, the Canal Officer refused to do so.
On appeal, he was informed that his request for supply of canal water could not be granted.
From April 1952 the supply was stopped.
After giving the statutory notice under 987 section 80 of the Code of Civil Procedure, the appellant filed Special Civil Suit No. 6 of 1953 in the Court of the Civil Judge, Senior Division, Ahmednagar, against the State of Bombay for a declaration that the plaintiff was entitled to the supply and use of water from the tail outlet of Distri butary No. 17 of the Canal to irrigate 100 acres of basic cane land in the concentrated area described in Schedule 11 at the rates prescribed by the Government under the Irrigation Act on a volumetric basis, for specific performance of the aforesaid agreement between Karale and the Government, for recovery of damages, and for other incidental reliefs.
The State of Bombay filed a written statement contending, inter alia, that there was no concluded agreement between the Government and Karale embodying the alleged terms stated in the plaint, that even if there was such an agreement, it was void inasmuch as it did not comply with the provisions of section 175(3) of the Government of India Act, 1935, and that, in any view, the appellant could not legally get the benefit of the agreement under section 30 of the Bombay Irrigation Act, 1879.
On the pleadings as many as seven issues were framed reflecting the contentions of the parties.
The learned Civil Judge held that there was a concluded agreement between the Government and Karale on the, terms alleged by the appellant, but the transfer by Karale of the said right in favour of the appellant was in violation of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, and, therefore, there was no legal transfer of Karale 's right of water in favour of the appellant.
In that view, he dismissed the suit.
On appeal, the High Court held that there was neither a concluded agreement between Karale and the Government nor did it comply with the requirements of law.
In the result the appeal was dismissed.
Hence the present appeal.
The arguments of Mr. M. K. Nambiar, learned counsel for the appellant, may be summarized under the following heads : (1) There was a concluded agreement between Karale and the statutory authority, the Canal Officer, whereunder the said Karale was entitled 'to get water to his compact block permanently from the tail outlet of Distributary No. 17 of the Godavari Right Bank Canal so long 988 as he was willing to pay the rates for such supply on volu metric basis.
(2) As under the compromise decree between Karale and the appellant the said block of land was trans ferred to the appellant, the right under the agreement for the supply of canal water was also transferred to him under section 30 of the Bombay Irrigation Act, 1879 (Bombay Act No. 7 of 1879), hereinafter called the Act.
(3) Section 175(3) of the Government of India Act, 1935, does not apply to the agreement in question for the following reasons : (i) once the Legislature covers any matter by the enactment of any statute, any functional power assigned to the Government or any other authority under the said statute is exercisable only under that statute and in virtue of the statutory authority and not in the exercise of the executive authority of the Province within the meaning of section 175(3) of the Government of India Act, 1935; (ii) the agreement contemplated by section 30 of the Act is an agreement entered into under the Act by a statutory authority in pursuance of a statutory power with the statutory consequences and, therefore, such an agreement is outside the provisions of section 175(3) of the Government of India Act, 1935; and (iii) that apart, the expression "agreement" in section 30 of the Act does not mean a formal contract, but only a sanction, permission or consent given by the Canal Officer pursuant to the authority given to him under the Act, and, therefore, such sanction, permission or consent is not a contract within the meaning of section 175(3) of the (Government of India Act, 1935.
This appeal raises a question a far reaching importance as regards the scope of the executive authority exercised by the Governor under the Government of India Act, 1935; but, we are relieved of the duty to express our opinion on that question in this appeal in view of our finding that the agreement in question was arrived at outside the provisions of the Act and, therefore, it squarely falls within the scope of section 175(3) of the Government of India Act, 1935.
We shall at the outset address ourselves to the said agreement, namely, (i) who are the parties to the said agreement; and (ii) what are the terms thereof? 989 When the suit was pending decision of the Civil Court, the appellant filed an application therein for directing the Government to produce, among others, the applications made to the Government from time to time by Karale in respect of supply of water to his farm in the year 1935 and subsequent thereto and the office copies of the replies sent to the said applications, the Government documents and papers, water bills and the records in respect _of the supply of water to the land belonging to Karale from the year 1935.
and the correspondence that passed between karale and ' the Government between 1935 and 1939 in respect of consolidation of his lands.
Obviously these papers were required by the appellant for establishing the case that there was a concluded agreement between Karale and the Government or the Canal officer.
But, unfortunately, the said documents were not produced.
It is not clear from the record why and under what circumstances the Government withheld the documents from the court, but in appeal the High Court in its judgment remarked: "In the trial Court no attempt was made to have this endorsement produced in Court which could have been done if the plaintiffs Counsel had so desired by a proper application to the Court".
But the High Court felt that it was absolutely necessary in the interests of justice to call upon the learned Government Pleader to produce the file with reference to that particular endorsement, namely, Endorsement No. 3033/36 1 dated 28th April 1939, and directed him to do so.
It disposed of the appeal after receiving the said relevant document.
Though the High Court threw the blame for this lapse on the appellant, we do not think there was any justification for it.
Apart from the fact that the appellant asked for the production of all the relevant documents, the Government, being the defendant in this case, should have produced the documents relevant to the question raised.
While it is the duty of a private party to a litigation to place all the relevant matters before the Court, a higher responsibility rests upon the Government not to withhold such documents from the court.
Be that at it may, the documents were finally produced before the court, and the High Court considered the same in arriving at its conclusion.
Though Mr. Nambiar suggested that the said documents 990 related to some other party, as we will indicate in the course of the judgment, the said file dealt also with the agreement alleged to have been entered into between Karale and the Government.
Exhibits Nos.
D 67 and D 68 are the documents on which strong reliance is placed on behalf of the appellant.
Exhibit D 67 reads thus : Below Government endorsement No. 3033/36 1 dated the 28th April 1939: No. 4223 of 1939 Poona, 14th July, 1939.
Returned with compliments.
The applicant has already been allowed to continue his present cane irrigation of 93 acres on outlets 2 and Tail of Distributary 17 of the Godavari Right Bank Canal for one year from 15 2 1939 pending consideration of his case in detail, in relation to the demand of the Sugar Company formed by Messrs. Jagtap & Khilari on this canal and lately named the "Changdeo Sugar Factory".
In view however of the orders issued verbally by the Hon 'ble Minister, Public Works Department on 12 7 1939 the applicant is being allowed to concentrate all his cane irrigation to the extent of 100 acres on the tail outlet of Dy 17 of the Godavari Right Bank Canal by 15 2 1940 and to continue it permanently there if he so wishes provided he agrees to take water by measurement on volumetric basis of 112" at the outlet head and pay the water rates that may hereafter be sanctioned by Government in this respect.
The applicant has since signified his willingness to these conditions.
He will be charged, till then on the area basis as is done at present.
The area thus allowed to the applicant will be excluded from the Sugar Factory area while 991 fixing the boundaries of the allotted factory area of the "Changdeo Sugar Factory" on this canal.
D.A. Marathi petition.
(Sd.) W. H. E. GARROD, Superintending Engineer, D.I.C. Copy, with compliments, to the Executive Engineer, Nasik Irrigation Division, for information and guidance with reference to the correspondence ending with this office No. 3686 dated 22 6 1939.
Exhibit D 68 is a letter written by the Superintending Engineer to Karale.
It reads : No. 4224 of 1939 Poona, 14th July 1939.
TO Shankar Tukaram Karale, Esquire, at Belapur.
Continuation of cane irrigation on Distributary No. 17 of the Godavari Right Bank Canal.
Dear Sir, In continuation of this office No. 3686 dated 23rd June 1939, I have to inform you that under orders of the Honourable Minister, Public Works Department, you will be allowed to irrigate came to the extent of 100 acres on the tail outlet of Distributory No. 17 of the Godavari Right Bank Canal permanently, so long as you may wish to do so, on condition that you agree to take canal water by measurement on volumetric basis of 112" depth at the outlet head at the rate which may be sanctioned by Government hereafter.
(2) This will apply to new cane plantation from 15 2 1940 onwards.
Till then, you may continue your cane irrigation on outlets 2 and tail as at present.
Yours faithfully, (Sd.) W. H. E. Garrod, Superintending Engineer, Deccan Irrigation Circle.
992 Copy, with compliments, to the Executive Engineer, Nasik Irrigation Division, for information.
A fair reading of these two documents leaves no room for doubt that a firm agreement was entered into between the Government and Karale in respect of the supply of water to his land to the extent of 100 acres on the tail outlet of Distributary No. 17 of the Godavari Right Bank Canal.
These two letters show that there was previous correspondence between the Engineering Department and Karale and that the Minister of Public Works Department intervened and settled the terms of the agreement, and that the terms were communicated to Karale, who accepted the same.
The terms of the agreement were, (i) Karale was allowed to concentrate all his cane irrigation to the extent of 100 acres on the tail outlet of Distributary No. 17 of the Godavari Right Bank Canal by February 15, 1940, and to continue it permanently, if he so wished; (ii) Karale agreed to take water by measurement on volumetric basis of 112" at the outlet head and to pay water rates that might thereafter be sanctioned by the Government in that respect; (iii) the said area will be excluded from the sugar factory area while fixing the boundaries of the allotted sugar factory area of Changdeo Sugar Factory; and (iv) the terms will apply to new cane plantation from February 15, 1940 onwards.
It is said that the word "permanently" refers to cultivation, but not to supply of water.
This interpretation makes the entire contract meaningless.
Sugar cultivation can be done only with the permission of the department, for sugarcane crop cannot be raised without supply of water from the canal.
When the Superintending Engineer allowed Karale to concentrate all, his cane irrigation in the said area permanently on condition he paid the prescribed rates, it was necessarily implied in the said agreement that he would supply water permanently, if the said rates were paid.
Cultivation and supply of water are so inextricably connect ed that one cannot be separated from the other.
The permission to have cane irrigation permanently on the basis of a particular rate implies that the supply for irrigation is co terminous with irrigation.
In this view we must hold that Exs.
D 67 and D 68, read together, record a concluded 993 agreement between the Superintending Engineer, acting on the orders of the Minister of Public Works Department, on the one hand and Karale on the other, agreeing to supply water so long as Karale had cane cultivation in the con s centrated area.
The other documents, read along with the documents filed for the first time in the High Court, also do not detract from this conclusion.
Exhibit D 78. which is not dated, was the application filed by Karale to the Chief Minister, P.W.D. and Irrigation Department, Bombay.
Therein Karale represented to the Chief Engineer that Distributary No. 17 was permanently closed prior to 1935, that he was responsible for starting the said Distributary by commencing plantation.
that the "Prime Minister 's" consent gave him an assurance that while declaring the factory area, the area of the previous gardeners would be excluded from the said area, that he had invested a capital of about Rs. 75,000/ for raising the plantation and that in the circumstances he prayed that while declaring the factory area, his land should be excluded therefrom.
This application was considered by the concerned office under G.L. No. 3033/36 dated April 27, 1939.
In the note put up by the office the contents of the ;said application are summarized.
Thereafter the following note is found : "With reference to the H.M.R.D. 's note dated 3 4 1939 it may be observed that Government has already accepted the principle that no ordinary irrigators should be allowed to operate in the sugar factory area.
Under the general orders issued on the subject owner irrigators are to be allowed to continue irrigation, on yearly basis.
It is for consideration whether this fact may be brought to the notice of the H.M.R.D.
If it is decided to do so the papers may be submitted to the H.M., P.W.D. and the H.M.R.D. after the drafts put up are issued." The Revenue Minister accepted the endorsement.
This is only an office note and the suggestion that the irrigators should be allowed to continue on the yearly basis was only to prevent further applications after the factory area was declared.
This endorsement had nothing to do with the 134 159 S.C. 63 994 exclusion of any particular area from the sugar factory area.
The endorsement "should see" below the endorsement made by the Revenue Minister perhaps meant that the papers, should be submitted to the Minister concerned.
Exhibit D 79 is a letter written by the Deputy Secretary to the Government of Bombay to Changdeo Sugar Mills.
This letter also refers to the office endorsement No. 3033/36 1.
Though we are not directly concerned with this letter, it may be mentioned that the application of Karale is connected with the proposal to declare certain area as factory area and to give water to Changdeo Sugar Factory in respect of the lands in that area, for his application was to exclude his area from the factory area.
Both the matters obviously were dealt together.
Exhibit D 79A is again part of the file relevant to the factory area.
But a reference is made again to the office No. 3033/36 1 and in the same file Karale 's letter is also noticed.
Exhibit D 81 is an endorsement at page 133 of the same file, which also deals with the subject 'sugar factories".
It contains a copy of the letter written to the Superintending Engineer requesting him to submit at a very early date a draft agreement for the supply of water to the company 's area on the Godavari Right Bank Canal on the terms embodied in the margin thereof.
Exhibit D 82 is also another endorsement on the same file.
The endorsement reads thus : Endorsement at 191.
3033/36 1114 Discussed with the Secy.
In addition to his written requests, Mr. Karale had also interviewed the late H.M.R.D.
During the discussions, H.M. had made it clear that Mr. Karale can only be allowed to continue if he was willing to consolidate his holdings in an independent block so that the Co. 's cultivation be carried on undisturbed.
This is not recorded on this file as H.M. did not pass any orders in Bombay or at the Secretariat but instructed 995 (Presumably after discussion with Mr. Sule) the S.E.D.I.C. in the matter.
Please see P. 107 ante.
That Mr. Karale 's cane has to be shifted to one block is clear from the wordings of the S.E.S. letter.
"The applicant is allowed to concentrate all his cane. . on the tail outlet of D. 17".
This is the only record of the orders passed.
Moreover Mr. Karale is to have his supply on a volumetric basis as soon as that can be arranged for.
This would necessitate the concentration of his cane areas.
" This endorsement notices the contents of exhibit D 67 and, therefore, it must have been made only after April 28, 1939.
The said documents do not carry the matter further.
They only show what we have already noticed, namely, the Govern ment wanted to create a factory area and that Karale filed an application to have his area excluded therefrom.
The notings of the department are not in any way inconsistent either with exhibit D 67 or with exhibit D 68.
Exhibits D 67 and D 68 refer to Office No. 3686 dated June 23, 1939, and that letter must have been in some other file and that file was not produced and, if produced, it might have thrown some more light.
In the circumstances we must proceed on the basis that Exhibits D 67 and D 68 embodied the terms of the agreement entered into between the Government and Karale pursuant to the application, exhibit D 78, made by him to the Chief Engineer, P.W.D. We have already held that the said documents record the completed agreement between the Government and Karale in respect of supply of water to his and.
Even so, the question arises whether the said agreement is enforceable, if it has not complied with the provisions of section 175(3) of the Government of India Act, 1935.
The premises on which Mr. Nambiar built his argument is that the said agreement was entered into between the parties under the provisions of the Act.
If it was not made under the provisions of the Act, but outside the Act, the foundation for this argument would disappear.
We would, therefore.
proceed to consider now whether the said agreement was under the provision of the Act.
996 The relevant provisions of the Act may now be read.
Section 3(6) defines "Canal Officer" to mean any officer lawfully appointed or invested with powers under section 4.
Under section 4, such officer can exercise powers and discharge duties that may be assigned to him by the State Government.
It is said that the Superintending Engineer was one of the officers so appointed by the Government and that the powers under sections 27 to 30 of the Act were assigned to him.
Under section 27, "Every person desiring to have a supply of water from a canal shall submit a written application to that effect to a Canal Officer duly empowered to receive such applications, in such terms as shall from time to time be prescribed by the State Government in this behalf".
Under section 29, "When canal water is supplied for the irrigation of one or more crops only the permission to use such water shall be held to continue only until such crop or crops shall come to maturity, and to apply only to such crop or crops".
Under section 30, "Every agreement for the supply of canal water to any land, building or other immovable property shall be transferable therewith, and shall be presumed to have been so transferred whenever a transfer of such land, building or the other immovable property takes place." But under the second limb of the section, "except in the case of any such agreement as aforesaid, no person entitled to use the water of any canal, shall sell or sub let, or otherwise transfer, this right to such use without the permission of a Canal Officer duly empowered to grant such permission".
A combined reading of these provisions establishes that every person desiring to have supply of water from a canal shall apply in the prescribed manner to the Canal Officer and that the per ,on to whom water is supplied cannot transfer his right to another without the permission of the Canal Officer.
But if the land in respect whereof the water is supplied is transferred, the agreement for the supply of water also shall be presumed to have been transferred along with it.
The expression "agreement" in section 30 of the Act, it is contended, does not connote a contract as understood in law, but only a convenient mode of expression to indicate the sanction or permission given by the Canal Officer.
This meaning of the expression "agreement" is sought to be supported by a reference to the Bombay Canal Rules, 1934, made in 997 exercise of the powers conferred on the State Government under section 70(e) of the Act.
Part 11 of the Rules deals with supply of water.
It provides for the filing of applications, the manner of their disposal and.
the persons entitled to dispose of the same, and also the mode of supply of water for cultivation of different crops.
The forms prescribed columns under different heads for giving the necessary particulars.
The forms contain the instructions as well as conditions on which permission will be granted.
Rule 7 says that an application for supply of water for the irrigation of land for any period may be sanctioned, indicating thereby that there is no maximum period fixed for which application for supply of water can be made.
Assuming without deciding that "agreement" under section 30 of the Act means only sanction, the Act and the Rules provide for an application to be made to the Executive Engineer, who, subject to.
the Rules, can give the sanction.
Rule 36 provides for an appeal from the order of the Executive Engineer to the Superintending Engineer, and from that of the Executive Engineer 's order under r. 18 or r. 19 to the Collector.
But there is no provision either in the Act or in the Rules made thereunder enabling any party to make an application to the Chief Engineer to exclude his land from factory area, and to give him supply of water for irrigating the said land permanently, or a power to the Government to enter into an agreement or make an order in respect of such an application.
Such an order or agreement is entirely outside the scope of the Act or the Rules made thereunder.
We are not called upon in this case to decide whether the Government has any such power outside the Act; but, we shall assume for the purpose of this case that it has such power and to proceed to consider the legal arguments on that basis.
The documentary evidence adduced in this case, which we have already considered, discloses that the application was made to the Chief Engineer; that the Government, through the relevant ministry, considered the application and that on the instructions given by the concerned Minister, the Superintending Engineer wrote the letter exhibit D 68 to Karale.
It was, therefore, in effect and substance, an agreement entered into between the Government and Karale.
998 Such an agreement fell outside the provisions of the Act.
The parties to the agreement also understood that it was an agreement made between the Government and Karale.
The Government in or about February 1942 sent a draft agreement to Karale for execution regarding the supply of canal water to his farm, but the said Karale did not execute the agreement.
The parties did not agree in regard to some of the conditions found in the draft, but Karale did not contest the position of the Government that a formal agree ment in compliance with the provisions of law was necessary.
Again during the continuance of the partnership between Karale and the appellant, in or about 1950, the Government of Bombay sent another draft agreement to the said Karale for execution.
Though Karale signed the agreement, he insisted upon a proviso that the agreement should be without prejudice to the permission already granted to him.
The Bombay Government did not execute the said agreement.
So too, Karale and the appellant were making yearly applications under the Act and getting supply of water to their plantation.
That procedure was presumably followed because, though there was an agreement between Karale and the Government, for one reason or other, a formal document, though intended to be executed, was not executed.
This conduct on the part of the Government as well as that on the part of Karale and the appellant also establishes that the agreement was not under the Act, but between the Government of Bombay and Karale.
If so, it follows that the contract entered into between the Government and Karale was a contract made in the exercise of the executive authority of the Province within the meaning of section 175(3) of the Government of India Act, 1935.
The relevant part of section 175(3) of the Government of India Act, 1935, read : "All contracts made in the exercise of the executive authority of a Province shall be expressed to be made by the Governor of the Province . and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the Governor by such persons and in such manner as he may direct or authorise.
999 This section laid down two conditions for the validity of such a contract, namely, (i) it should be expressed to be made by the Governor of the Province, and (ii) it should be executed on behalf of the Governor by such persons and in such manner as he might direct or authorize.
We have nothing on the record to disclose whether the Superintending Engineer, though he acted under oral instructions of the Minister, was authorized by the Governor or under relevant rules to enter into such a contract.
That apart, even if Exs.
D 67 and D 68 together were treated as forming part of a contract entered into between the Government and Karale, can it be said that the said contract was expressed to be made in the name of the Governor? Ex facie it cannot be said so.
But it is contended that on a liberal construc tion, which we should adopt in a case where the Government is trying to go back on its solemn promise, such a formality can easily be read into the said documents.
Before we construe the said two documents in order to ascertain whether such a formality has been complied with or not, it would be convenient to notice some of the decisions of this Court.
The question of construction of section 175(3) of the Government of India Act, 1935, directly arose for decision in Seth Bikhraj Jaipuria vs Union of India(1).
There, the Divisional Superintendent, East Indian Railway, placed certain orders with the appellant for the supply of foodgrains for the employees of the said Railway.
The orders were not expressed to be made in the name of the Governor General and was not executed on behalf of the Governor General as required by section 175(3) of the Government of India Act, 1935.
They were signed by the Divisional Superintendent either in his own hand or in the hand of his Personal Assistant.
This Court held that the contracts, not having been expressed to be entered into by the ,Governor General and not having been executed on his behalf, were void.
This Court held that the provisions of section 175(3) of the Government of India Act, 1935, were mandatory and, therefore, the contracts were void.
This decision was followed by this Court in New Marine Coal Co. vs The Union of India(2).
Reliance is placed by the (1) (2) ; 1000 learned counsel for the appellant on the decision of this Court in Union of India vs Rallia Ram (1) in support of his contention that though ex facie Exs.
D 67 and D 68 do not show that the contract was expressed to be made in the name of the Governor, the said fact could be inferred from the recitals.
There, the goods offered to be sold belonged to the Government of India.
A tender notice was issued by the Government of India, Department of Food (Division 111), in the name of the Chief Director of Purchases.
The Chief Director of Purchases agreed to sell the goods on certain conditions to the respondent and incorporated them in the acceptance note, which was also headed "Government of India, Department of Food (Division III), New Delhi".
The general conditions of contract, which accompanied the letter of acceptance, defined Government as meaning the Governor General for India in Council.
On the said facts this Court held that the correspondence between the parties ultimately resulting in the acceptance note amounted to a contract expressed to be made by the Government and, therefore, by the Governor General, "because it was the Governor General who invited tenders through the Chief Director of Purchases and it was the Governor General who, through the Chief Director of Purchases, accepted the tender of the respondent subject to the conditions prescribed therein".
Though in the acceptance note it was not expressly stated that the contract was executed on behalf of the Governor General, on a fair reading of the contents of the letter in the light of the obligations undertaken thereunder, it was held that the contract was executed on behalf of the Governor General.
This decision does not depart from the principle accepted in Seth Bikhraj Jaipuria 's case(2).
On a fair reading of the correspondence this Court construed that the contract was entered into on behalf of the Governor General and expressed to be made in his name.
Can it be said that in the present case Exs.
D 67 and D 68 disclose that the Superintending Engineer was authorized to enter into a contract of the nature mentioned therein on behalf of the Provincial Government and that the contract was expressed to be made in the name of the Governor? (1) ; (2) ; 1001 Nothing has been placed before us to establish that the Superintending Engineer was legally authorized to enter into such a contract on behalf of the Government; nor do the documents ex jacie show that the agreement was expressed to be made in the name of the Provincial Government.
The letters mentioned the name of the Minister of the Public Works Department and also the Government, in the context of the rates that might be fixed thereafter, but the said documents did not purport to emanate from the Governor.
At best they were issued under the directions of the Minister.
We find it difficult to stretch the point further, as such a construction will make the provisions of section 175(3) of the Government of India Act, 1935, nugatory.
We cannot, therefore, hold that either the contract was entered into by the person legally authorized by the Government to do so or expressed to be made in the name of the Governor.
The agreement is void, as it has not complied with the provisions of section 175(3) of the Government of India Act, 1935.
In this view, it is not necessary to express our opinion on other interesting questions raised in this case.
In the result, the appeal fails and is dismissed, but in the circumstances, without costs.
Appeal dismissed.

summary/full:
One K had obtained sanction to irrigate certain lands from a canal.
The same year the Government proposed to reserve certain area along the canal as factory area.
According to the appellant after some correspondence between the Government and K, the Superintending Engineer agreed to exclude K 's land from the factory area and also to give water perpetually on the condition that he concentrated all his holding on the tail outlet of the canal and to take the supply of water on volumetric basis.
Pursuant to that arrangement, K concentrated his holdings and shifted his operations to that area and he was supplied water on the agreed basis.
Later the appellant and K entered into a partnership in respect of exploiting this area.
Disputes arose between the appellant and K which culminated in a consent decree whereunder the appellant became the full owner of the land including the right to use this canal water.
When the appellant applied for the recognition of the transfer the canal officer refused to do so.
On appeal be was informed that his request for supply of the canal water could not be granted.
The supply was stopped.
After giving them statutory notice under section 80 of the Code of Civil Procedure, the appellant filed a suit against the State for a declaration of his right to water from the canal and for consequential reliefs.
The State contested the suit contending, inter alia, that there was no concluded agreement between the Government and K. that even so, the agreement was void inasmuch as it 'did not comply with the provisions of section 175(3) of the Government of India Act, 1935 and in any view the appellant could not legally get the benefit of the agreement under section 30 of the Bombay Irrigation Act.
The Civil Judge held that there was a concluded agreement between the Government and K, but the transfer by K of the said right in favour of the appellant was in violation of the provisions of the Bombay Tenancy and Agricultural Lands Act and dismissed the suit.
On appeal, the High Court held that there was neither a concluded agreement between K and the Government nor did it comply with the requirements of law, and the appeal was dismissed.
On appeal by special leave: Held (i) The documents in the instant case record a concluded agreement between the Superintendent Engineer, acting on the order of 985 the Minister of Public Works Department, on the one hand and K on the other agreeing to supply water so long as K had cane cultivation in the concentrated area.
(ii) The provisions of Bombay Irrigation Act establishes that every person desiring to have supply of water from a canal shall apply in the prescribed manner to the Canal Officer and that person to whom water is supplied cannot transfer his right to another without the permission of the Canal Officer.
But if the land in respect whereof the water is supplied is transferred, the agreement for the supply of water also shall be presumed to have been transferred along with it.
(iii) The conduct on the part of the Government as well as that on the part of K and the appellant also establishes that the agreement was not under the Bombay Irrigation Act, but between the Government and K. (iv) The agreement is void, as it has not complied with the provisions of section 175(3) of the Government of India Act.
The contract was not either entered into by the person legally authorised by the Government to do so or expressed to be made in the name of Governor.
Seth Bikhraj Jaipurja vs Union of India, and New Marine Coal Co. vs Union of India, [1964] 2 S.C.R. 859, referred to.
Union of India vs Rallia Ram, ; , referred to.
Semble: While it is the duty of a private party to a litigation to Place all the relevant matters before the court, a higher responsibility rests upon the Government not to withhold such document from the Court.


judgement:
Appeal No. 549 of 1962.
Appeals from the judgment and orders dated August 1, 1958 and March 13, 1959 of the Assam High Court A. Nos. 86 of 1958 and 14 of 1959 respectively.
N. C. Chatterjee, K. P. Sen and P. K. Chatterjee, for the appellant (in C.A. No. 549 of 1962).
878 B. P. Maheshwari, for respondents Nos.
1(a) to 1(e) (in C.A. No. 549 of 1962).
Behrul Islam and R. Gopalakrishnan, for the appellant (in C.A. No. 569 of 1963).
D. N. Mukherjee, for the respondent (in C.A. No. 569/ 63).
February 24, 1964.
The Judgment of the Court was delivered by GAJENDRAGADKAR C.J.
These two appeals which have been brought to this Court with a certificate issued by the Assam High Court, raise a short question about the construction and effect of section 5 of the Assam NonAgricultural Urban Area Tenancy Act, 1955 (No. 12 of 1955) (hereinafter called 'the Act ').
The relevant and material facts which have led to the suits from which these two appeals respectively arise, are similar, and so, it would not be necessary to state them in detail in regard to both the matters.
We would, therefore, mention the facts broadly in C.A. No. 549/1962, in dealing with the common point raised for our decision.
The appellant in this case is Mst.
Rafiquennessa who sued the predecessor of the respondents for ejectment.
It appears that Lal Bahadur Chetri has executed a registered lease deed in favour of the appellant on the 14th February, 1946.
The lease covered an open plot of land and under the covenant the leasee was entitled to build a house for residential purposes.
In the ordinary course, the lease was due to expire on the 12th February, 1952, and the lessee had agreed to deliver vacant possession of the land at the expiration of the stipulated period.
Accordingly, a notice to quit was served on him to vacate on the 12th February, 1952.
He, however, did not comply with the notice and that led to the present suit by the appellant for eviction (No. 149 of 1952).
In support of her claim, the appellant alleged that the lessee had contravened the terms of the lease inasmuch as he had sublet the premises built by him, and so, that was an additional ground for evicting the lessee.
The sub lessees were accordingly joined as defendants to the suit.
The lessee Chetri alone resisted the suit.
The sub tenants let into possession by him did not join issue with the appel 879 lant.
The trial Judge decreed the appellant 's claim where upon the lessee Chetri filed an appeal in the Court of the Sub Judge, Lower Assam District, Gauhati, challenging the validity and the correctness of the decree passed against him (Civil Appeal No. 24/1953).
While the appeal was pending, the Act was passed and was published in the Assam Gazette on the 6th July, 1955.
Thereafter, when the appeal came on for hearing before the lower appellate Court, the tenant filed an application praying that he should be permitted to take an additional ground under section 5 of the Act.
Before that date, the Assam High Court had taken the view that the said provision of the Act was applicable to the pending proceedings between land lords and tenants for eviction and that was the basis on which the tenant Chetri wanted to support his appeal.
The lower appellate Court allowed the tenant 's plea, framed an additional issue in pursuance of it and sent the matter back to the trial Court for a finding.
On remand, the trial Court took evidence and after local inspection, made a finding that the two houses proved to have been built by the tenant must be regarded as permanent in relation to the locality of the plot.
He, however, found that there was no evidence to show when the said houses were constructed.
Part of the finding was challenged by the tenant before the lower appellate Court.
The lower appel late Court ultimately allowed the appeal and set aside the decree passed by the trial Judge in favour of the appellant.
The conclusion of the lower appellate Court was that the two houses had been constructed by the tenant within five years after the taking of the lease and that entitled the lessee to claim the benefit of section 5 of the Act.
The appellant then preferred a second appeal in the High Court of Assam (No. 86/1958).
Following its earlier decision about the applicability of the provisions of section 5 to pending proceedings, the High Court summarily dismissed the said appeal.
Thereafter, the appellant applied for and obtained a certificate from the High Court and with the said certificate the present appeal has been brought before us.
Pending these proceedings, the tenant Chetri died and his heirs and legal representatives Mst.
Tulsa Devi and others.
880 have been brought on the record and will be described as respondents hereafter.
Thus, the only point which arises for our decision is whether the Assam High Court was right in taking the view that the provisions of section 5 applied to the proceedings between the parties which were pending at the relevant time before the lower appellate Court.
Appeal No. 569 of 1963 arises from a suit filed by the appellant Wahedulla against his tenant, the respondent Abdul Hamid.
The relevant facts are similar to those in C.A. No. 549/1962.
In this case also, the Act came into force while the appeal was pending before the lower appellate Court and by the application of section 5 respondent 's claim to continue in possession has been upheld and the appellant 's claim for ejecting the respondent has been rejected.
The High Court granted certificate to the appellant when it was told that the appellant proposed to challenge the correctness of its earlier decision holding that section 5 of the Act applied to the pending proceedings.
The Act was passed by the Assam Legislature in order to regulate in certain respects the relationship between land lord and tenant in respect of non agricultural lands in the urban areas of the State of Assam.
It contains fourteen sections and the scheme which is evident in the operative provisions of the Act is to afford protection to the tenants by regulating in certain respects the relationship between them and their landlords in respect of the lands covered by the Act.
Section 3(c) defines a 'landlord ' as meaning a person immediately under whom a tenant holds but does not include the Government.
While section 3(d) defines a 'Permanent structure ' in relation to any locality as meaning a structure which is regarded as permanent in that locality, the 'tenant and 'urban area ' are defined by clauses (g) and (b) respectively.
Section 4 imposes an obligation on the tenant to pay rent for his holding at fair and equitable rates, and the proviso prescribes that in case of any dispute as to fair rent ,between the parties, the rent which was paid by the tenant immediately before the dispute shall be deemed to be fair and equitable unless a competent court decides to the ,contrary.
Section 6 provides for compensation for improvements; section 7 provides for enhancement of rent by contract,.
section 8 deals with enhancement of rent without contract; section 9 881 authorises the Court to make an order as to enhancement of rent: section 10 prohibits illegal realisation beyond the prescribed amount; section 11 provides for notice for ejectment; section 12 prescribes the procedure in which the notice has to be served; and section 13 confers rule making power on the State Government.
Section 14 repeals the earlier Tenancy Act.
Having thus broadly considered the scheme of the Act, it is necessary to read section 5, the effect of which is the main point of controversy between the parties before us.
Section 5(i) reads thus: Notwithstanding anything in any contract or in any law for the time being in force (a) where under the terms of a contract entered into between a landlord and his tenant whether before or after the commencement of this Act, a tenant is entitled to build, and has in pursuance of such terms actually built within the period of five years from the date of such contract, a permanent structure on the land of the tenancy for residential or business purposes, or where a tenant not being so entitled to build, has actually built any such structure on the land of the tenancy for any of the purposes aforesaid with the knowledge and acquiescence of the landlord, the tenant shall not be ejected by the landlord from the tenancy except on the ground of non payment of rent; (b) where a tenant has effected improvements on the land of the tenancy under the terms whereof he is not entitled to effect such improvements, the tenant shall not be, ejected by the landlord from the, land of the tenancy unless compensation for reasonable improvements has been paid to the tenant".
Sub section (2) prohibits the ejectment of any tenant from the land of the tenancy except in execution of a decree for ejectment passed by a competent civil Court; and sub section (3) prohibits the execution of a decree for ejectment on the ground of non payment of rent within a period of 30 days from the date of the decree, and allows the tenant to pay into the executing Court the entire amount due from him under 134 159 S.C. 56 882 the decree within the said period, Whereupon the decree has to be entered as satisfied.
Mr. Chatterjee contends that the Assam High Court was in error in coming to the conclusion that the proceedings which were pending between the parties at the appellate stage on 6th July, 1955 when the Act came into force, fell to be governed by the provisions of section 5.
He argues that at the relevant date when the suit was filed by the appellant, he had acquired a right to eject the tenant under the terms of the tenancy, and he contends that where vested rights are affected by any statutory provision, the said provision should normally be construed to be prospective in operation and not retrospective, unless the provision in question relates merely to a procedural matter.
It is not disputed by him that the legislature is competent to take away vested rights by means of retrospective legislation.
Similarly, the legislature is undoubtedly competent to make laws which over ride and materially affect the terms of contracts between the parties; but the argument is that unless a clear and unambiguous intention is indicated by the legislature by adopting suitable express words in that behalf, no provision of a statute should be given retroactive operation if by such operation vested rights are likely to be affected.
These principles are 'unexceptionable and as a matter of law, no objection can be taken to them.
Mr. Chatterjee has relied upon the well known observations made by Wright J. in in re Athlumney Ex parte Wilson(1), when the learned Judge said that it is a general rule that when the Legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them.
He added that there was one exception to that rule, namely, that, where enactments merely affect procedure and do not extend to rights of action, they have been held to apply to existing rights.
In order to make the statement of the law relating to the relevant rule of construction which has to be adopted in dealing with the effect of statutory provisions in this connection, we ought to add that retroactive operation of a statutory provision can be inferred even in cases where such retroactive operation appears to be clearly implicit in the (1) 883 provision construed in the context where it occurs.
In other words, a statutory provision is held to be retroactive either when it is so declared by express terms, or the intention to make it retroactive clearly follows from the relevant words and the context in which they occur.
Bearing in mind these principles, let us look at section section Before doing so, it is necessary to consider section 2 which pro vides that notwithstanding anything contained in any con tract or in any law for the time being in force, the provisions of this Act shall apply to all non agricultural tenancies whether created before or after the date on which this Act comes into force.
This provision clearly indicates that the legislature wanted the beneficent provisions enacted by it to take within their protection not only leases executed after the Act came into force, but also leases executed prior to the operation of the Act.
In other words, leases which bad been created before the Act applied are intended to receive the benefit of the provisions of the Act, and in that sense, the Act clearly affects vested rights of the landlords who had let out their urban properties to the tenants prior to the date of the Act.
That is one important fact which is material in determining the scope and effect of section 5.
Now, section 5 itself gives an unmistakable indication of the legislative intention to make its provisions retrospective.
What does section 5 provide? It provides protection to the tenants who have actually built within five years from the date of leases executed in their favour, permanent structures on the land let out to them for residential or business purposes, and this protection is available either when the construction of the permanent structure has been made by the tenant in pursuance of the terms of the lease, or even without any term of that kind and the landlord had knowledge of it and had acquiesced in it.
Thus, the plain object of section 5 is to protect the tenants who have built a permanent structure either for business or for residence, provided it has been built within 5 years from the date of contract of tenancy.
Therefore, cases where permanent structures had been built within 5 years of the terms of contract, would fall within section 5 ( 1 ) (a), even though those constructions had been made before the date of the Act.
Thus, the very scheme of 5 (1) (a) clearly postulates the extension of its protection to 884 constructions already made.
That is another point which is significant in dealing with the controversy between the parties before us.
There is yet another point which is relevant in this connection.
section 5(1)(a) provides that the tenant shall not be evicted by the landlord from the tenancy except on the ground of non payment of rent, provided, of course, the con ditions prescribed by it are satisfied.
If the legislature had intended that this protection should operate prospectively.
it would have been easy to say that the tenant shall not be sued in ejectment; such an expression would have indicated that the protection is afforded to the suits brought after the Act came into force, and that might have introduced the element of prospective operation; instead, what is prohibited by section 5 (1)(a) is the eviction of the tenant, and so, inevitably, the section must come into play for the protection of the tenant even at the appellate stage when it is clear that by the proceedings pending before the appellate court, the landlord is seeking to evict the tenant, and that obviously indicates that the pending proceedings are governed by section 5(1)(a), though they may have been initially instituted before the Act came into force.
Incidentally, an appeal pending before the lower appellate court is a continuation of the suit, and so, there is no difficulty in holding that a suit which was pending when the Act came into force would be governed by section 5(1)(a) and an appeal arising from a suit which had been decided before the Act came into force, would likewise be governed by section 5(1)(a), provided it is pending after the date when the Act came into force.
Therefore, we are satisfied that the Assam High Court was right in coming to the conclusion that the dispute between the parties in the present case must be governed by the provisions of section 5(1)(a).
It is common ground that if section 5(1)(a) is held to apply, the decrees passed against the appellants in both the appeals cannot be successfully challenged.
The result is, the appeals fail and are dismissed with costs.
One set of hearing foes.
Appeals dismissed.

dataset_name: IN-Abs

summary/full:
The appellant sued the lessee, the predecessor of the respondents, for ejectment on the latter 's failure to deliver possession of a leased land at the expiration of the stipulated period.
Under the covenant the lessee was entitled to build a house for residential purposes.
The trial Court decreed the appellant 's claim whereupon the lessee filed an appeal.
While the appeal was pending the Assam Non Agricultural Urban Areas Tenancy Act was passed, and thereafter the lessee prayed for permission to take an additional ground under section 5 of the Act.
Before that date, the High Court had taken the view that this provision of the Act was applicable to pending proceedings.
The lower appellate court allowed the lessee 's plea and ultimately allowed the appeal and set aside ,he decree passed by the trial Judge in favour of the appellant, concluding that the two houses had been constructed by the lessee within five years after the taking of the lease and that entitled the lessee to claim the benefit of section 5 of the Act.
The High Court on appeal, following its earlier decision about the applicability of the provisions of section 5 to pending proceedings, summarily dismissed the appeal, but granted a certificate for leave to appeal to this Court Held: (i) A statutory provision is retroactive either when it is so declared by express terms.
or the intention to make it retroactive clearly follows from the relevant words and the context in which they occur Re.
Athlumney Ex parte Wilson, , referred to.
(ii) The provisions of the Act clearly indicate that the legislature wanted the beneficient provisions enacted by it to take within their protection not only leases executed after the Act came into force, but also leases executed prior to the operation of the Act.
The plain object of s.5 is to protect the tenants who have built a permanent structure either for business or for residence, provided it has been built within 5 yearsfrom the date of contract of tenancy, even though those constructions had been made before the date of the Act.
(iii) A suit which was pending when the Act came into force would be governed by section 5(1) (a) and an appeal arising from a suit which had been decided before the Act came into force, would likewise be governed by section 5(1) (a), provided it is pending after the date when the Act came into force.
for an appeal pending in a continuation of the suit.


judgement:
Appeals Nos. 721 723 of 1962.
Appeals by special leave from the judgment and order dated March 1, 1961, of the Patna High Court in Misc.
Judicial Cases Nos. 1167, 1122 and 1235 of 1960.
N. C. Chatterjee, Rai Behari Singh and Udai Pratap Singh,for the appellants (in all the appeals).
B. P. Singh, N. P. Singh and I. N. Shroff, for the respondent No. 1 (in all the appeals).
C. K. Daphtary, Attorney General, N. section Bindra, V. D.Mahajan and B. R. G. K. Achar, for respondents Nos. 2 and 3.
February 26, 1964.
The short question which arises in these appeals by special leave is whether section 1(3) of the (No. 34 of 1948) (hereinafter called the Act) is invalid.
By their writ petitions filed before the Patna High Court, the appellants who are the workmen of the three respondent concerns, the Eagle Rolling Mills Ltd., the Kumardhubi Engineering Works Ltd., and Kumardhubi Fire Clay and Silica Works Ltd., respectively, alleged that the impugned section has contravened article 14 of the Constitution, and suffers from the vice of excessive delegation, and as such is invalid.
These employers were impleaded as respondent No. 1 respectively in the three writ petitions.
The High Court has rejected the plea and the writ petitions filed by 915 the appellants have accordingly been dismissed.
It is against this decision of the High Court that the appellants have come to this Court and have impleaded the three employers respectively.
The three appeals proceed on similar facts and raise an identical question of law and have, therefore, been heard together.
It appears that respondents No. 1 in all the three appeals are under the management of M/s. Bird.& Co. Ltd., through a General Manager, and the appellants are their workmen.
As such workmen, the appellants were getting satisfactory medical benefits of a very high order free of any charge.
Respondent No. 1 in each appeal maintained a wellfurnished hospital with provision for 60 permanent beds for the workmen, their families and their dependents.
The main grievance made by the appellants is that as a result of section 1(3) of the Act, the appellants have now to be content with medical benefits of a less satisfactory nature.
That is why they challenged the validity of the impugned section and contest the propriety and legality of the notification issued under it.
To these writ petitions as well as to the appeals, the Employees ' State Insurance Corporation and the Union of India have been impleaded as respondents 2 and 3 respectively.
On the 22nd August, 1960, respondent No. 3 issued a notification under section 1, sub section (3) appointing the 28th August, 1960 as the date on which some provisions of the Act should come into force in certain areas of the State of Bihar.
By this notification, the area in which the appellants are working came within the scope of the Act.
In pursuance of the said notification, the Chief Executive Officer of respondent No. 1 informed the appellants on the 25th August, 1960 that the medical benefits including indoor and outdoor treatment upto the extent admissible under the Act will cease to be provided to insurable person , from the appointed day.
A notice in that behalf was duly issued and published by the said Officer.
Similar notices were issued indicating to the appellants that medical benefits would thereafter be governed by the relevant provisions of the Act and not by the arrangements which had been made 916 earlier by respondent No. 1 in that behalf.
That, in brief, is the genesis of the present writ petitions and the nature of the dispute between the parties.
The first point which Mr. Chatterjee has raised before us is that section 1(3) of the Act suffers from excessive, delega tion and is, therefore, invalid.
In order to consider the validity _of this argument, it is necessary to read section 1, sub section (3): "The Act shall come into force on such date or dates as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different provisions of this Act and for different States or for different parts thereof '.
The argument is that the power given to the Central Government to apply the provisions of the Act by notifica tion, confers on the Central Government absolute discretion, the exercise of which is not guided by any legislative provision and is, therefore, invalid.
The Act does not prescribe any considerations in the light of which the Central Government can proceed to act under section 1(3) and such uncanalised power conferred on, the Central Government must be treated as invalid.
We are not impressed by this argument.
Section 1(3) is really not an illustration of delegated legislation at all; it is what can be properly described as conditional legislation.
The Act has prescribed a self contained code in regard to the insurance of the, employees covered by it; several remedial measures which the Legislature thought it necessary to enforce in regard to such workmen have been specifically dealt with and appropriate provisions have been made to carry out the policy of the Act as laid down in its relevant sections.
Section 3(1) of the Act purports to authorise the Central Government to establish a Corporation for the administration of the scheme of Employees ' State Insurance by a notification.
In other words, when the notification should be issued and in respect of what factories 'it should be issued, has been left to the discretion of the Central Government and that is precisely what is usually done, by conditional legislation.
917 What Lord Selborne said about the powers conferred on the Lieutenant Governor by virtue of the relevant provisions of Act 22 of 1869 in Queen vs Burah(1), can be said with equal justification about the powers conferred on the Central Government by section 1(3).
Said Lord Selborne in that case: "Their Lordships think that it is a fallacy to speak of the powers thus conferred upon the Lieutenant Governor (large as they undoubtedly are) as" if, when they were exercised, the efficacy of the acts done under them would be due to arty other legislative authority than that of the Governor General in Council.
Their whole operation is directly and immediately under and by virtue of this Act (XXII of 1869) itself.
The proper Legislature has exercised its judgment as, to place, person, laws, powers; and the result of that judgment has been to legislate conditionally as to all these things.
The Conditions having been fulfilled, the legislation, is now absolute".
That is the first answer to the plea raised by Mr. Chatterjee.
Assuming that there is an element of delegation, the plea is equally unsustainable, because there is enough guidance given by the relevant provisions of the Act and the very scheme of the Act itself.
The preamble to the Act shows that it was passed because the legislature thought it expedient to provide for certain benefits to employees in case of sickness, maternity and employment injury and.
to make provision for certain other matters in relation thereto.
So, the policy of the Act is unambiguous and clear.
The material ' definitions of "benefit period", "employee", "factory","injured person ", "sickness", "wages" and other terms contained in section 2 give a clear 'idea as to the nature of the factories to which the Act is intended to be applied, the class of persons for whose benefit it has ' been passed and the nature of the benefit which is intended to be conferred on them.
Chapter II of the Act deals with the (1) 5 I.A. 178 at p. 195.
918 Corporation, Standing Committee and Medical Benefit Council and their constitution; Chapter III deals with the problem of finance and audit; Chapter IV makes provisions for contribution both by the employees and the employer, and Chapter V prescribes the benefits which have to be conferred on the workmen; it also gives general provisions in respect of those benefits.
Chapter V A deals with transitory provisions; Chapter VI deals with the adjudication of disputes and claims; and Chapter VII prescribes penalties.
Chapter VIII which is the last Chapter, deals with mis cellaneous matters.
In the very nature of things, it would have been impossible for the legislature to decide in what areas and in respect of which factories the Employees ' State Insurance Corporation should be established.
It is obvious that a scheme of this kind, though very beneficient, could not be introduced in the whole of the country all at once.
Such beneficial measures which need careful experimentation have sometimes to be adopted by stages and in different phases, and so, inevitably, the question of extending the statutory benefits contemplated by the Act has to be left to the discretion of the appropriate Government.
"Appropriate Government" under section 2(1) means in respect of establishments under the control of the Central Government or a railway administration or a major port or a mine or oilfield, the Central Government, and in all other cases, the State Government.
Thus, it is clear that when extending the Act to different establishments, the relevant Government is given the power to constitute a Corporation for the administration of the scheme of Employees ' State Insurance.
The course adopted by modern legislatures in dealing with welfare schemes has uniformly conformed to the same pattern.
The legislature evolves a scheme of socioeconomic welfare, makes elaborate provisions in respect of it and leaves it to the Government concerned to decide when, how and in what manner the scheme should be introduced.
That, in our opinion, cannot amount to excessive delegation.
The question of excessive delegation has been frequently considered by this Court and the approach to be adopted in dealing with it is no longer in doubt.
In the Edward Mills Co. Ltd., Beawar and Others vs The State of Ajmer 919 and Another(1), this Court repelled the challenge to the validity of section 27 of the (No. XI of 1948), whereby power had been given to the appropriate Government to add to either part of the schedule any employment in respect of which it was of opinion that minimum wages shall be fixed by giving notification in a particular manner, and it was provided that on the issue of the notification, the scheme shall, in its application to the State, be deemed to be amended accordingly.
In dealing with this problem, this Court observed that there was an element of delegation implied in the provisions of section 27, for the legislature, in a sense, authorised another body specified by it to do something which it might do itself; but it was held that such delegation was not unwarranted and unconstitutional and it did not exceed the limits of permissible delegation.
To the same effect are the recent decisions of this Court in M/s. Bhikusa Yamasa Kshatriya and Another vs Sangamner Akola Taluka Bidi Kamgar Union and Others(2), and Bhikusa Yamasa Kshatriya (P) Ltd. vs Union of India and Another(3).
Therefore, we must hold that the impugned section 1 (3) of the Act is not shown to be constitutionally invalid.
Before we part with these appeals, there is one more point to which reference must be made.
We have already mentioned that after the notification was issued under section 1(3) by respondent No. 3 appointing August 28, 1960 as the date on which some of the provisions of the Act should come into force in certain areas of the State of Bihar, the Chief Executive Officer of respondent No. 1 issued notices giving effect to the State Government 's notification and intimating to the appellants that by reason of the said notification, the medical benefits which were being given to them in the past would be received by then under the relevant provisions of the Act.
It was urged by the appellants before the High Court that these notices were invalid and should be struck down.
The argument which was urged in support of this contention was that respondent (1)[1955] 1 S.C.R. 735.
(2) [1963] Supp. 1 S.C.R. 524.
(3) ; 920 No. 1 in all the three appeals were not entitled to curtail the benefits provided to the appellants by them and that the said benefits were not similar either qualitatively or quan titatively to the benefits under the Scheme which had been brought into force under the Act.
The High Court has held that the question as to whether the notices and circulars issued by respondent No. 1 were invalid, could not be considered under article 226 of the Constitution; that is a matter which can be appropriately raised in the form of a dispute by the appellants under section 10 of the Industrial Disputes Act.
It is true that the powers conferred on the High Courts under article 226 are very wide, but it is not suggested by Mr. Chatterjee that even these powers can take in within their sweep industrial disputes of the kind which this contention seeks to raise.
Therefore, without expressing any opinion on the merits of the contention, we would confirm the finding of the High Court that the proper remedy which is available to the appellants to ventilate their grievances in respect of the said notices and circulars is to take recourse to section 10 of the Industrial Disputes Act, or seek relief, if possible, under sections 74 and 75 of the Act.
The result is, the appeals fail and are dismissed.
There would be no order as to costs.
Appeals dismissed.

summary/full:
The appellants as workmen of respondent No. 1 in all the three respondent concerns were getting free medical benefits of a very high order in a well furnished hospital maintained by respondent No. 1.
Respondent No. 3.
the Union of India issued a notification under section 1(3) of the Employees State Insurance Act appointing 28th August, 1960 as the date on which some provisions of the Act should come into force in certain areas of the State of Bihar and the area in which the appellants were working came within the scope of the Act.
In pursuance of the said notification, the Chief Executive Officer of Respondent No. 1 issued notices to the appellants that the medical benefits upto the extent admissible under the Act will cease to be provided to insurable persons from the appointed day and the medical benefits would thereafter be governed by the relevant provisions of the Act.
The appellants in a writ petition to the High Court challenged the validity of section 1(3) of the Act and legality of the notifications issued under it, inter alia, on the ground that it contravened article 14 of the Constitution and suffers from the vice of excessive delegation.
The High Court rejected the plea and dismissed the writ petitions.
On appeal by special leave the appellants contended that section 1(3) of the Act suffers from excessive delegation and is, therefore, invalid.
Held: (i) section 1(3) of the Act is not an illustration of delegated legislation at all, it can be described as conditional legislation.
It purports to authorise the Central Government to establish a corporation for the administration of the scheme of Employees ' State Insurance by a notification.
As to when the notification should be issued and in respect of what factories it should be issued, has been left to the discretion of the Central Government and that is precisely what is usually done by conditional legislation.
Queen vs Burah, 5.
I.A. 178, relied on.
(ii) Assuming there is an element of delegation, the plea is equally unsustainable, because there is enough guidance given by the relevant provisions of the Act and the very scheme of the Act itself.
In the very nature of things, it would have been impossible for the legislature to decide in what areas and in respect of which factories the Employees ' State Insurance Corporation should be established.
It is obvious that a scheme of this kind, though very beneficent, could not be introduced 34 159 S.C. 58 914 in the whole of the country all at once.
Such beneficial measures which need careful experimentation have sometimes to be adopted by stages and in different phases, and so, inevitably, the question of extending the statutory benefits contemplated by the Act has to be left to the discretion of the appropriate Government.
That cannot amount to excessive delegation.
Edward Mills Co. Ltd. Beawar vs The State of Ajmer, ; , M/s Bhikusa Yamasa Kshatriya vs Sangamner Akola Taluka Bidi Kamgar Union, [1963] Supp.
1 S.C.R. 524 and Bhikusa Yamasa Kahtriva vs Union of India, ; followed:


judgement:
iminal Appeal No. 22 of 1953.
Appeal by special leave from the Judgment and Order dated the 19th November, 1952, of the High Court of Judicature of Punjab at Simla in Criminal Appeal No. 102 of 1952 and Criminal Revision Nos.
423 146 and 499 of 1952 of the Court of the Sessions Judge, Jullundur, in Sessions Case No. 30 of 1951 and Sessions Trial No. 5 of 1951.
Jai Gopal Sethi (R. L. Kohli and Deva Singh, with him) for the appellants.
Gopal Singh for the respondent.
May 15.
The Judgment of the Court was delivered by BosE J.
Four persons appeal against sentences of death passed upon them in convictions for a double murder, the victims being two brothers, Rattan Singh and Bawa Singh.
The learned Sessions Judge convicted three others also but sentenced all, including the four appellants, to transportation for life.
The High Court acquitted three of the seven but sustained the convictions of the four appellants and enhanced their sentences in each case to death.
The prosecution story is simple.
All seven accused belong to the same village and belong to the same faction or "party", as Mst.
Punnan (P.W. 2) calls it.
Of the seven, the appellants Dalip Singh and Battan Singh are brothers.
Jarnail Singh who was acquitted is a son of Battan Singh.
The remaining four, including the appellants Sadhu Singh and Kundan Singh, are not related to the other three and, except for the evidence that they belong to the same party, are not shown to have any common interest with the other three.
The appellants Dalip Singh and Battan Singh are said to have assaulted the two dead men Rattan and Bawa about twenty years before the occurrence.
They were prosecuted and convicted and served short terms of imprisonment.
Dalip Singh and Battan Singh are also said to be dacoits and it is said that they believed that the two dead men used to furnish information against them to the police.
This is said to be the motive for the murders.
Why the others should have joined in, except on the basis that they belong to the same "Party", is not disclosed.
147 The prosecution case is as follows: On 16th June, 1951, Rattan Singh was taking some food out to a well a short distance from his house for himself and his son.
This was about 2 p.m.
Just as he left the house, his wife Mst.
Punnan (P.W. 2) heard cries of alarm and on rushing out with her daughter Mst.
Charni (P.W. 11) saw all seven accused assaulting her husband.
They beat him up till he fell to the ground.
As soon as Rattan Singh fell down, they left him and rushed to his (Rattan Singh 's) Haveli where the other brother Bawa Singh was lying on a cot, shouting that they would also make short work of him.
All seven belaboured him on the cot, then they dragged him out and beat him up some more.
After this they returned to where Rattan Singh was still lying on the ground and gave him some more blows.
Then they ran away.
Bawa Singh died very shortly after the assault.
The other brother survived a little longer but he also died not long after.
According to Mst.
Punnan (P.W. 2) the accused were armed as follows: The appellants Dalip Singh and Sadhu Singh with barchhas; the appellant Battan Singh and two of the accused who have been acquitted with lathis; the appellant Kundan Singh had a takwa a hatchet with along handle, and the accused Kehar Singh, who has been acquitted, had a khunda a hefty stick with a curved iron end.
The medical evidence discloses that Rattan Singh had nineteen injuries on his person.
Of these, only two, on the head, would have been fatal in themselves.
The rest were on non vital parts like the foot, ankle, leg, knee, thigh, buttock, forearm and wrist, but of these six were grievous.
The doctor says death was caused by shook produced by the multiple injuries aided by haemorrhage in the brain due to injury No. 14.
The other brother Bawa had sixteen injuries but except for two the rest were on non vital parts.
One of the two was on the head and the other ruptured the 148 spleen.
The rest were on the ankle, leg, knee, thigh, elbow, thumb and wrist, but eleven of them were grievous.
In his case the doctor put the death down to rupture of the spleen.
In Rattan Singh 's case, only one of the injuries was inflicted by a sharp edged pointed weapon and all the rest by blunt weapons.
The two on the head were inflicted by blunt weapons.
In Bawa Singh 's case, four wounds were caused by a sharp edged or pointed sharp edged weapon.
The others were all inflicted by blunt weapons.
Here again, the fatal injury which ruptured the spleen was caused by a blunt weapon.
This analysis would appear to indicate that neither of the appellants Dalip Singh and Sadhu Singh, who carried spears, nor the appellant Kundan Singh, who carried a hatchet, aimed at any vital part; and of those who had blunt weapons, the appellant Battan Singh who had a lathi has alone been convicted while Indar Singh and Jarnail Singh, who also had lathis, and kehar Singh, who had a khunda, have all been acquitted; and yet Battan Singh alone could hardly have been responsible for eighteen injuries on Rattan Singh and nine on Bawa Singh.
The appellant Dalip Singh was arrested on the 17th June and the other three on the 18th.
Each was wearing blood stained clothes.
The learned Sessions Judge did not attach much importance to the bloodstained clothes, nor did he regard the recovery of certain weapons, some of which were blood stained, as of much consequence.
But he was impressed with the evidence of the two eyewitnesses Mst.
Punnan (P.W. 2) and Mst.
Charni (P. W. 11) and believing them convicted each of the seven accused under section 302 read with section 149, Indian Penal Code.
He said that as the fatal injuries could not be attributed to any one of the accused he refrained from passing the sentence of death.
All the assessors considered all seven accused guilty.
The learned High Court Judges did not attach any importance to the recovery of the weapons because 149 for one thing they were not recovered till the 30th, that is to say, not until fourteen days after the murders, and when found, one set pointed out by Jarnail Singh, who has been acquitted, was found in Dalip Singh 's field and another set, pointed out by Sadhu Singh, was found in Kehar Singh 's field.
But they considered the blood stained clothes an important factor.
They were not prepared to believe the two eye witnesses all the way, partly because they were of opinion that a part of their story was doubtful and seemed to have been introduced at the instance of the police and partly because they considered that when the fate of seven men hangs on the testimony of two women "ordinary prudence" requires corroboration.
They found corroboration in the case of the four appellants because of the blood stained clothes and none in the case of the others.
Accordingly, they convicted the four appellants and acquitted the others.
Now this has led the learned Judges into an inconsistency and it is that which led to the granting of special leave to appeal.
The learned Judges say that their conclusion is that (1) "generally the story related by Mst.
Punnan and Mst.
Charni is true; (2) that certainly not less than five persons took part in the beating of the two deceased; and (3) that the corroboration required by prudence is afforded by the presence of the blood stained clothes found on the persons of the four appellants who have been convicted.
" As regards the three accused whom they acquitted the learned Judges say The other three accused may or may not have taken part in the affair.
" Now it is clear from the above that it is impossible to ascribe any particular injury to any particular person.
Therefore ' it is impossible to convict any one of the accused of murder simpliciter under section 302, 21 150 nor do the learned Judges attempt to do that.
They convict under section 302 read with section 149.
But section 149 requires the presence of five persons who share the common object.
It is true that in one place the learned Judges say that there were certainly not less than five present but in the very next breath they say that the three whom they acquit "may or may not have taken part in the affair".
If those three are eliminated, then we are left with only four and that militates against their previous finding that they were at least five.
Before section 149 can be called in aid, the court must find with certainty that there were at least five persons sharing the common object.
A finding that three of them "may or may not have been there" betrays uncertainty on this vital point and it consequently becomes impossible to allow the conviction to rest on this uncertain foundation.
This is not to say that five persons must always be convicted before section 149 can be applied.
There are cases and cases.
It is possible in some eases for Judges to conclude that though five were unquestionably there the identity of one or more is in doubt.
In that case, a conviction of the rest with the aid of section 149 would be good.
But if that is the conclusion it behoves a court, particularly in a murder case where sentences of transportation in no less than four cases have been enhanced to death, to say so with unerring certainty.
Men cannot be hanged on vacillating and vaguely uncertain conclusions.
In fairness to the learned Judges we have examined the evidence with care to see whether, if that was in their minds, such a conclusion could be reached in this particular case on the evidence here.
That it might be reached in other cases on other facts is undoubted, but we are concerned here with the evidence in this case.
Now mistaken identity has never been suggested.
The accused are all men of the same village and the eye witnesses know them by name.
The murder took 151 place in daylight and within a few feet of the two eye witnesses.
If the witnesses had said, "I know there were five assailants and I am certain of A, P and C.
I am not certain of the other two but think they were D and E", a conviction of A, B and C, provided the witnesses are believed, would be proper, But when the witnesses are in no doubt either about the number or the identity and there is no suggestion about mistaken identity and when further, the circumstances shut out any reasonable possibility of that, then hesitation on the part of the Judge can only be ascribed, not to any doubt about identity but to doubt about the number taking part.
The doubt is not whether D and E have been mistaken for somebody else but whether D and E have been wrongly included to swell the number to five.
Again, it is possible for a witness to say that "A, B, C, D, E and others, some ten or fifteen in number, were the assailants".
In that event, assuming always that the evidence is otherwise accepted, it is possible to drop out D and E and still convict A, B and C with the aid of section 149.
But that again is not the case here.
No one suggests that there were more than seven; no one suggests that the seven, or any of them, were, or could be, other than the seven named.
Nor is it possible in this case to have recourse to section 34 because the appellants have not been charged with that even in the alternative, and the common intention required by section 34 and the common object required by section 149 are far from being the same thing.
In the circumstances, we find ourselves unable to allow the conviction to rest on the insecure foundations laid by the High Court.
We have accordingly reviewed the evidence for ourselves.
Mr. Sethi took us elaborately through it.
In our opinion, the learned Sessions Judge 's conclusions are right.
We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration.
If the foundation 152 for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule.
If it is grounded on the reason that they are closely related to the deceased we are unable to concur.
This is a fallacy common to many criminal cases and one which another Bench of this court endeavoured to dispel in Rameshwar vs The State of Rajasthan(1).
We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.
A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely.
Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person.
It is true, when feelings run high and there is personal cause ' for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.
However, we are not attempting any sweeping generalisation.
Each case must be judged on its own facts.
Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence.
There is no such general rule.
Each case must be limited to and be governed by its own facts.
This is not to say that in a given case a Judge for reasons special to that case and to that witness cannot say that he is not prepared to believe the witness because of his general unreliability, or for other reasons, unless he is corroborated.
Of course, that can be done.
But the basis for such a conclusion must rest on facts special to the particular instance and cannot be grounded on a supposedly general rule of prudence enjoined by law as in the case of accomplices.
(1) ; at 390.
153 Now what is the ground for suspecting the testimony of these two witnesses? The only other reason given by the learned High Court Judges is that they have introduced a false element into their story at the instigation of the police in order to save the "face" of the lambardars.
But if that is so, it throws a cloak of, unreliability over the whole of their testimony and, therefore, though it may be safe to accept their story where the corroborative element of the blood stained clothes is to be found, it would be as unsafe to believe, on the strength of their testimony, that at least five persons were present as it would be to accept that the ones who have been acquitted were present; and once we reach that conclusion section 149 drops out of the case.
We have carefully weighed the evidence of these women in the light of the criticisms advanced against them by Mr. Sethi, most of which are to be found in the judgments of the lower courts, and we are impressed by the fact that the learned Sessions Judge who saw them in the witness box was impressed with their demeanour and by the way they stood up to the crossexamination, and also by the fact that the learned High Court Judges appear to believe them to the extent that at least five persons were concerned.
Some of the accused have made general and sweeping statements to the effect that the prosecution witnesses are inimical to them but no one has suggested why.
In the long cross examination of these witnesses not a single question has been addressed to them to indicate any cause of enmity against any of the accused other than the appellants Dalip Singh and Battan Singh.
A general question was asked, and it was suggested that there was some boundary dispute between Mst.
Punnan 's husband and the accused Indar Singh and Kundan Singh but that was not followed up by other evidence and neither Kundan Singh nor Indar Singh suggests that there was any such dispute in their examinations under section 342, Criminal Procedure Code.
Kehar Singh says vaguely that he has inherited land which will pass to the line 154 of Rattan and Bawa if he dies without heirs but lie has made no effort to substantiate this.
The questions put in cross examination therefore remain just shots in the dark and leave the testimony of the two women unimpaired.
The first information report was made by Mst.
Pullnan (P.W. 2) herself.
It was made very promptly though this was attacked by Mr. Sethi.
It was made at 8 30 p.m. within 6 1/2 hours of the occurrence at a place 12 miles from the police station.
The victims did not die at once and it was only natural that Mst.
Punnan 's first thoughts should have been to tend them Next, she had to walk part of the distance and the rest she covered in a lorry, and above all she has not been cross examined regarding delay.
We consider that a report made within 61 hours in such circumstances is prompt.
Now the important thing about this report is that it names the seven accused, no less and no more, and from start to finish Mst.
Punnan has adhered to that story without breaking down in cross examination and without any attempt to embellish it by adding more names; and in this she is supported by Mst.
Charni (P.W. 11).
Next, the bloodstained clothes found on the persons of the four appellants afford strong corroboration as against them, and as two courts have believed the witnesses to that extent all we need do is to concentrate on the other three accused who have been acquitted in order to see whether there were seven persons as Mst.
Punnan says and to see whether the conclusion of the High Court that there were at least five present is sound.
We do not think the discovery of tile weapons can be, lightly excluded.
One set was pointed out by Jarnail Singh.
In itself that might not mean much but it is unquestionable corroboration as against Jarnail Singh unless the fact of discovery is disbelieved or is considered to be a fraud.
But that is not the finding of either court.
The first court, believes the evidence and the High Court does not disbelieve it but 155 considers the incident as of small probative value.
It may be in itself, but it is a corroborative element in the case of two witnesses who do not require corroboration and that makes it all the more safe to accept their testimony.
Next comes the discovery of another set of weapons by Sadhu Singh.
He was already implicated by reason of some blood stained clothes but the importance of the discovery in his case lies in the fact that the weapons were found in the field of Kehar Singh.
It is certainly a circumstance to be taken into consideration that these weapons should be found in the field of a man who was named from the start.
Then comes the fact that Mst.
Punnan (P.W. 2) not only named the various assailants in her first information report but stated exactly what sort of weapon each was carrying.
Here again she is consistent from start to finish except for an unessential difference in the case of Jarnail.
In the first information report she said he had a dang while in her evidence she says he had a lathi, but as a dang is a big lathi that is not a real discrepancy.
This, in our opinion, is impressive consistency, especially as it tallies in general with the postmortem findings.
Now the fact that weapons of this description, four stained with human blood, are discovered at the instance of two persons she has named from the beginning in the fields of others whom she has also named from the start certainly does not tend to weaken her testimony.
The only accused who is not in some way independently linked up with the testimony of these two women is Indar.
But when their stories find corroboration on so many important particulars we see no reason why they should be disbelieved as regards Indar, always remembering that these are not witnesses who require corroboration under the law.
In our opinion, the High Court was unnecessarily cautious in acquitting the other three accused when the learned Judges were convinced that at least five persons were, concerned, 156 We have taken into consideration the fact that the High Court considers that the portion of Mst.
Punnan 's story regarding the lambardars has been falsely introduced by the police, also that both courts have rejected the evidence about the dying declaration.
Despite that, we agree with the learned Sessions Judge that Mst.
Punnan and Mst.
Charni are to be believed regarding the main facts and that they correctly named all seven accused as the assailants.
On that finding the conviction under section 302 read with section 149 can be sustained.
We accordingly uphold these convictions.
The acquittals in the other the cases will of course stand but the mere fact that these persons have, in our opinion, been wrongly acquitted cannot affect the conviction in the other cases.
On the question of sentence, it would have been necessary for us to interfere in any event because a question of principle is involved.
In a case of murder, the death sentence should ordinarily be imposed unless the trying Judge for reasons which should normally be recorded considers it proper to award the lesser penalty.
But the discretion is his and if he gives reasons on which a judicial mind could properly found, an appellate court should not interfere.
The power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest possible reasons.
It is not enough for an appellate court to say, or think, that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate court but to the trial Judge and the only ground on which an appellate court can interfere is that the discretion has been improperly exercised, as for example where no reasons are given and none can be inferred from the circumstances of the case, or where the facts are so gross that no normal judicial mind would have awarded the lesser penalty.
None of these elements is present here.
This is a case in which no one has been convicted for his own act but is being held vicariously responsible for the act of another or others.
In cases where the facts are more 157 fully known and it is possible to determine who inflicted blows which were fatal and who took a lesser part, it is a sound exercise of judicial discretion to discriminate in the matter of punishment.
It is an equally sound exercise of judicial discretion to refrain from sentencing all to death when it is evident that some would not have been if the facts had been more fully known and it had been possible to determine, for example, who hit on the head or who only on a thumb or an ankle; and when there are no means of deter mining who dealt the fatal blow, a judicial mind can legitimately decide to award the lesser penalty in all the cases.
We make it plain that a Judge is not bound to do so, for he has as much right to exercise his discretion one way as the other.
It is impossible to lay down a hard and fast rule for each case must depend on its own facts.
But if a Judge does do so for reasons such as those indicated above, then it is impossible to hold that there has not been a proper exercise of judicial discretion.
Now the High Court do not consider these facts at all.
They give no reasons and dispose of the matter in one sentence as follows: "I would dismiss the appeals of the other four and accepting the revision petitions change their sentences from transportation to death.
" That, in our opinion, is not a proper way to interfere with a judicial discretion when a question of enhancement is concerned.
We are unable to hold that the discretion was improperly exercised by the learned Sessions Judge.
Whether we ourselves would have acted differently had we been the trial court is not the proper criterion.
We accordingly accept the appeals on the question of sentence and reduce the sentence in each case to that of transportation for life.
Except for that, the appeal is dismissed.
Sentence reduced.
Appeal dismissed.

summary/full:
Before section 149 of the Indian Penal Code can be applied, the court must find with certainty that there were at least live persons sharing the common object.
This does not, however, mean that five persons must always be convicted before section 149 can be applied.
If the judge concludes that five persons were unquestionably present and shared the common object, though the identity of some of them is in doubt, the conviction of the rest would be good; but if this is his conclusion, it behoves him, particularly in a murder case where heavy sentences have been imposed, to say so with certainty.
Rameshwar vs The State of Rajasthan ([1952] S.C.R. 377) referred to.
The power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest reasons.
It is not enough for the appellate court to say or think that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate court but to the trial judge, and the only ground on which the appellate court can interfere is that the discretion has been improperly exercised, as for instance where no reasons have been given and none can be inferred from the circumstances of the case or where the facts are so gross that no normal judicial mind would have awarded the lesser penalty.