judgement:
ivil Appeal No. 698 of 1980.
From the Judgment dated the 2.5.1979 of the Kerala High Court in M.F.A. 346 of 1978.
M.M. Abdul Khader, Darshan Singh and Praveen Kumar for the Appellant.
P.S. Poti, P.K. Pillai (N.P.), T.T. Kunnhikannan and Ms. Malini Poduval for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
This appeal by leave from a Full Bench judgment of the Kerala High Court raises a short question of construction of the plain words of a term 'private forest ' as defined in a statutory enactment called "The Kerala Private Forest (Vesting and Assignment) Act, 197 1 (called shortly "The Vesting Act").
The High Court has decided the question in favour of the State and against the appellant.
The judgment of the High Court has since been reported in AIR 1980 Kerala 137.
The view expressed by the High Court has been subsequently affirmed by another Full Bench in State of Kerala vs Malayalam Plantation Ltd., AIR 1981 Kerala 1 and reiterated by a larger Bench of five Judges in State of Kerala vs
K.C. Moosa Haji & Ors., , Losing the construction argument, the appellant has appealed to this Court.
The facts of the case are immaterial for the purpose of this judgment, save to state in the barest outline that the appellant is the Rayon Silk Manufacturing Company registered in the State of Madhya Pradesh.
One of its industrial under takings is located in Bilakootam, Mavoor in Kozhikode Dis trict, Kerala State.
This establishment pro 405 duces Rayon Grade Pulp, using Bamboo Eucalyptus and other species of wood as basic raw material.
It has a large euca lyptus plantation coveting thousands of acres, maintained as captive raw material for use in the factory.
The State says that as a consequence of the Vesting Act, the eucalyptus 8plantation being a private forest and not excluded there from is vested in the State with no fight, title and inter est subsisting with the company.
The claim of the company, however, is that the term 'private forest ' as defined under the Vesting Act, excludes the eucalyptus plantation. 'Private forest ' has been defined in the Vesting Act as well as under the Kerala Land Reforms Act (Act 1 of 1964) as amended by Amendment Act 35 of 1969 ("The KLR Act").
Since counsel for the appellant largely depends upon the judicial construction of the definition of 'private forest ' in the KLR Act, it is necessary that we should set out hereunder both the definitions placed alongside with each other: THE KERALA PRIVATE FORESTS THE KERALA LAND REFORMS (VESTING AND ASSIGNMENT) ACT (ACT 1 OF 1964) AS ACT, 1971 AMENDED BY THE KERALA LAND REFORMS (AMENDME NT ACT 35/1969) (Act 26 of 1971) (AS AMENDED BY ACT 5 OF 2.
Definitions.
In this 1978) Act unless the context otherwise requires 2.
Definitions: In this Act (47) 'private forest ' unless the context otherwise means a forest which is requires not owned by the Govern ment but does not inclu de (f) 'private forest ' means (1) in relation to the Mala (i) areas which are waste bar district referred to in and are not enclaves sub section (2) of Section within wooded areas; 5 of the (ii) areas which are gardens or nilams; (Central Act 37 of 1956) (i) any land to which the (iii) areas which are Madras Preservation of Pri planted with tea, coffee, vate Forests Act, 1949 (Madras cocoa, rubber, cardomom Act XXVIII of 1949) applied or cinnamon; and immediately (iv) other areas which are culti 406 before the appointed day excluding vated with (A) Lands which are gardens or pepper, arecanut coco nilams as defined in the Kerala nut, cashew or other Land Reforms Act, 1963 (1 of fruit bearing trees or 1964) are cultivated with any other agricultural crop;.
(B) Lands which are used princi pally for the cultivation of tea, coffee, cocoa, rubber, cardomom, or cinnamom and lands used for any purpose ancillary to the cultiva tion of such crops or for the pre paration of the smae for the market.
Explanation Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops; (C) lands which are principally cultivated with cashew or other fruit bearing trees or are princi pally cultivated with any other agricultural crop; (D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings; (ii) any forest not owned by the Government, to which the Madras Preservation of Private Forests Act, 1949 did not apply, inclu ding waste lands which are encla ves within wooded areas.
407 (2) in relation to the remaining areas in the State of Kerala, any forest not owned by the Government, including waste lands which are enclaves within wooded areas.
Explanation: For the purposes of this clause, a lane shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs;" We may first examine the scope of the definition of 'private forest ' under Section 2(47) of the KLR Act.
It means a forest which is not owned by the Government, excluding thereby four kinds of areas specified under sub clauses (i) to (iv).
The latter part of sub clause (iv) contains the words" . .
Other areas cultivated with any other agricultural crop".
The terms 'agriculture ' and 'agricultural crop ' have wider as well as narrower connotation.
The wider concept covers both the primary or basic as well as the subsequent operations.
It takes within its fold among other things, the products of the land which have some utility either for consumption or for trade and commerce including forest products such as timber, sal and piyasal trees, casuarina plantations, tendu leaves, horranuts etc.
(See: Commis sioner of Income Tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy, ; at 156.
Of course there must be present all throughout the basic idea that there must be cultiva tion of land in the sense of tilling of the lands, sowing of the seeds, planting and similar work done in the land.
The forest growth or spontaneous growth of any product, plants or trees, however, would be outside the characteristic of agricultural products or operations.
In Malankara Rubber and Produce Co. vs State of Kerala & Ors., ; , this Court while examining the scheme of KLR Act with particular reference to Chapter III therein observed that 'lands under eucalyptus or teak which are the result of agricultural operations normally would be agricultural lands, but not lands which are covered by eucalyptus or teak growing spontaneously as in a jungle or a forest. ' This is the wider concept of agricultural crop, perhaps attributed to the latter part of sub clause (iv) of the definition under Section 2(47) of the KLR Act.
The latter part of sub clause (iv) of Section 2(47) of the KLR 408 Act, counsel for the appellant contended, is practically the same as the second limb of sub clause (C) of Section 2(f)(1)(i) of the Vesting Act.
It was claimed that since eucalyptus plantation is covered by the expression 'any other agricultural crop ' in Section 2(47) sub clause (iv) of the KLR Act, Section 2(f)(1)(i) sub clause (C) of the Vest ing Act with similar words must also carry the same meaning.
It was emphasised that the KLR Act and the Vesting Act constitute a Code of agrarian reform and they are cognate legislations with the Vesting Act as supplementary to the KLR Act.
The expression 'any other agricultural crop ' used in both the enactments while defining 'private forest ' must therefore, receive the same meaning as otherwise, it would lead to anomalies.
This is the line of argument for the appellant.
This whole line of arguments with respect, is hard to accept.
As Felix Frankfurter, J. said: "Legislation is a form of literary composition.
But construction is not an abstract process equally valid for every composition, not even for every composition whose meaning must be judicially ascertained.
The nature of the composition demands awareness of certain presuppositions .
And so, the significance of an enactment, its antecedents as well .,as .its later history, its relation to other enactments, all may be rele vant to the construction of words for one purpose and in one setting but not for another.
Some words are confined to their history; some are starting points for history. 'Words are intellectual and moral currency.
They come from the legislative mint with some intrinsic meaning.
Sometimes it remains unchanged.
Like currency, words sometimes appreciate or depreciate in value".
The learned Judge further stated: "Legislation has an aim; it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of government.
That aim, that policy is not drawn, like nitrogen, out of the air; it is evinced in the language of the statute, as read in the light of other external manifestations of purpose.
That is what the Judge must seek and effectuate.
" (See: Courts, Judges and Politics by Walter F. Murphy: 'Some Reflections of the Reading of Statutes ' by Felix Frankfurter).
Judicial interpretation given to the words defined in one statute does not afford a guide to construction of the same words in another statute unless the Statutes are pari materia legislations.
In the present case, the aim and object of the two legislations are not similar in the first place.
Secondly, the definition of 'private forest ' in the KLR Act is not just the same as the definition of 'private forest ' in the Vesting Act.
Indeed, there is a vast differ ence in between the two.
The object of the Vesting Act was to provide for the Vesting in the Government 409 of private forest in the State of Kerala for the assignment thereof to the agriculturists and agricultural labourers for cultivation.
The preamble of the Act provides that such agricultural lands should be so utilised as to increase the agricultural production in the State and to promote the welfare of the agricultural population in the State.
Two separate definitions have been provided in the Vesting Act; the first is applicable to the Malabar district where the Madras Preservation of Private Forests Act, 1949 ( 'The MPPF Act ') applied immediately before the appointed day; the second concerned is in relation to the remaining areas in the State of Kerala.
The definition of 'private forest ' as is applicable to the Malabar district is not general in terms but limited to the areas and lands to which the MPPF Act applied and exempts therefrom lands described under sub clauses (A) to (D).
This significant reference to MPPF Act in the definition of 'priVate forest ' in the Vesting Act makes all the difference in the case.
The MPPF Act was a special enactment.
It was enacted by the erstwhile Madras State to preserve the private forests in the district of Malabar and erstwhile South Kannara District.
The Scheme of that Act has been explained by several decisions of the Kerala High Court and that scheme appears to be that if the land is shown to be private forest on the date on which the MPPF Act,came into force, it would continue to be a forest, even if there was subsequent replantation.
(See: State of Kerala vs Anglo American D.T.T. Co., and State of Kerala vs K.C. Moosa Haji, (supra) (FB) AIR at 154 155.) It is not in dispute that the lands involved in this appeal were all forests as defined in the MPPF Act, 1949 and continued to be so when the Vesting Act came into force in 1971.
In Malankara case (supra), this Court was not con cerned with the lands covered by the MPPF Act, and denuded thereafter of forest growth and cultivated with fresh re plantation.
Therefore, it seems inappropriate to transplant the meaning accorded to 'private forest ' from the KLR Act to the Vesting Act.
That wide concept cannot fit into the new legal source.
In State of Kerala vs Gwalior Rayon Sm.
(Wvg.) Co. Ltd.; , 1, this Court while upholding the constitutional validity of the Vesting Act has observed that the Forest Lands in the State of Kerala has attained a peculiar character owing to the geography and climate and the evidence available showed that the vast areas of these forests are still capable of supporting a large agricultural plantations.
That much is clear from the following observa tions (at 683): "It is therefore, manifest that when the legislature stated in 410 the preamble that the private forests are agricultural lands, they merely wanted to convey that they are lands which by and large could be prudently and profitably ex ploited for agricultural purposes.
" There is thus a judicial recognition of the distinction between private forest in Travancore Cochin area in Kerala State and the private forest in Malabar district.
This distinction by itself is sufficient to dispel the anomalies suggested by counsel for the appellant.
Look at the definition.
Sub clause (A) refers to gardens or nilams as defined in the KLR Act. 'Garden ' means lands used principally for growing coconut trees, arecanut trees or pepper vines or any two or more of the same. 'Nilam ' means lands adapted for the cultivation of paddy.
Sub clause (B) deals with what may be called plantation crops, cultiva tion of which in the general sense would be cultivation of agricultural crops.
Such agricultural crops are by name specified.
Lands used for any purpose ancillary to such cultivation or for preparation of the same for the market are also included thereunder.
Next follows sub clause (C).
It first refers to lands which are principally cultivated with cashew or other fruit bearing trees.
It thus refers to only the fruit beating trees.
It next refers to 'lands which are principally cultivated with any other agricultural crop.
If the legislature had intended to use the term 'agricultur al crop ' in a wide sense so as to take within its fold all species of trees fruit beating or otherwise, it would be unnecessary to have the first limb denoting only the cashew or other fruit beating trees.
It may be significant to note that the Legislature in each sub clause (A) to (C) has used the words to identify the different categories of crops or trees.
The words used in every sub clause too have "associa tions, echoes and overtones".
While construing such words, judges must, as Felix Frankfurter, J., said "retain the associations, hear the echoes and capture the overtones" (supra p. 414).
When so examined and construed, we do not discover any indication that the words in sub clause (C) "any other agricultural crop" are quite wide enough to comprehend all species of trees including eucalyptus planta tions.
It is said, indeed rightly, that in seeking legislative intention, judges not only listen to the voice of the legis lature but also listen attentatively to what the legislature does not say.
Let us compare the wordings in Section 3 with those of sub clause (C).
Under Section 3 sub section (1), private forests vest in Government.
Sub clause (2) however, excludes from such vesting lands within the ceiling limits 411 applicable to an owner if they are under his personal culti vation.
Cultivation for this purpose "includes cultivation of trees or plants of any species".
The explanation to sub section (2) makes this aspect beyond doubt.
The lands used for the cultivation of any kind of tree, fruit bearing or yielding only timber or pulp are not vested under Section 3 sub section (2).
The legislature has thus excluded from vesting under Section 3 sub section (2) the trees of every variety.
But while providing for exclusion under sub clause (C), the legislature could not have again thought of trees or plants of all kinds.
It seems to have considered only fruit bearing trees and not of other species.
If the inten tion was otherwise, the sub clause(C) would have been in a different language.
In our view as a matter of pure construction untram melled by authority, the words used in the latter part of sub clause (C) could not take within its fold all varieties of trees and it could exclude only fruit bearing trees.
This is also the conclusion of the High Court not only in the impugned judgment under appeal but also in the subse quent two decisions; Malayalam Plantation Limited and K.C. Maosa Haji cases (supra).
In the result the appeal fails and is dismissed.
In the circumstances of the case, however, we make no order as to costs.
T.N.A. Appeal dis missed.

summary/full:
The appellant company was maintaining a large eucalyptus plantation for captive consumption in its production of Rayon Grade Pulp.
The State of Kerala claimed that as a consequence of the Kerala Private Forests (Vesting and Assignment) Act, 1971, the eucalyptus plantation being a 'private forest ' stood transferred to and vested in it.
The company resisted the State 's claim on the ground that the term 'private forest ' excludes the eucalyptus plantation.
The High Court decided the question in favour of the State and against the appellant.
402 In the appeal to this Court, it was contended on behalf of the appellant that since the eucalyptus plantation was covered by the expression 'any other agricultural crop ' in section 2(47)(iv) of the Kerala Land Reforms Act, 1963 the similar expression used in section 2(f)(1)(i)(C) of the Vesting Act, 1971 must also carry the same meaning.
Dismissing the appeal, this Court.
HELD: 1.
Judicial interpretation given to the words defined in one statute does not afford a guide to construc tion of the same words in another statute unless the stat utes are pari materia legislations.
[408G] 1.1 The definition of 'private forest ' in the Kerala Land Reforms Act is not just the same as the definition of 'private forest ' in the Vesting Act.
Indeed, there is a vast difference between the two.
Two separate definitions have been provided in the Vesting Act; the first is applicable to the Malabar district where the Madras Preservation of Pri vate Forests Act, 1949 applied immediately before the ap pointed day; the second concerned is in relation to the remaining areas in the State of Kerala.
The definition of 'private forest ' as is applicable to the Malabar district is not general in terms but limited to the areas and lands to which the Madras Preservation of Private Forests Act ap plied, and exempts there from lands described under sub clauses (A) to (D).
This significant reference to this Act in the definition of 'private forest ' in the Vesting Act makes all the difference in the case.
The scheme of this Act appears to be that if the land is shown to be private forest on the date on which the Act came into force, it would continue to be a forest, even if there was subsequent re plantation.
[408H; 409A D] 1.2 The lands involved in this appeal were all forests as defined in the Madras Preservation of Private Forests Act and continued to be so when the Vesting Act came into force.
Therefore, it seems inappropriate to transplant the meaning accorded to 'private forest ' from the Kerala Land Reforms Act to the Vesting Act.
[409E F] State of Kerala vs Anglo American D.T.T. Co., and State of Kerala vs
K.C. Moosa Haji, A.I.R. referred to.
Malankara Rubber and Produce Co. vs State of Kerala & Ors.
, ; , Held inapplicable.
403 State of Kerala vs Gwalior Rayon Silk Mfg.
(Wvg.) Co. Ltd.; , , referred to.
The term 'agriculture ' and 'agricultural crop ' have wider as well as narrower connotation.
The wider concept covers both the primary or basic as well as the subsequent operations.
It takes within its fold among other things, the products of the land which have some utility either for consumption or for trade and commerce including forest products such as timber, sal and piyasal, trees, casuarina plantations, tendu leaves, coconuts etc.
Of course there must be present all throughout the basic idea that there must be cultivation of the land in the sense of tilling of the lands, sowing of the seeds, planting and similar work done in the land.
The forest growth or spontaneous growth of any product, plants or trees, however, would be outside the characteristic of agricultural products or operations.
[407D F] Commissioner of 1.
T. West Bengal vs Raja Benoy Kumar Sahas Roy, ; , referred to.
2.1 Under Section 3(1), private forests vest in Govern ment.
Subsection (2) however, excludes from such vesting lands within the ceiling limits applicable to an owner if they are under his personal cultivation.
Cultivation for this purpose 'includes cultivation of trees or plants of any species '.
The explanation to sub section (2) makes this aspect beyond doubt.
The lands used for the cultivation of any kind of tree, fruit bearing or yielding only timber or pulp are not vested under section 3 sub section (2).
The legislature has thus excluded from vesting under section 3 sub section (2) the trees of every variety.
But while pro viding for exclusion under sub clause (C) of section 2(f)(1)(i), the legislature could not have again thought of trees or plants of all kinds.
It seems to have considered only fruit bearing trees and not of other species.
Sub clause (C) refers to lands which are principally cultivated with cashew or other fruit bearing trees.
It next refers to lands which are principally cultivated with any other agri cultural crop.
If the legislature had intended to ' use the term 'agricultural crop ' in a wide sense so as to take within its fold all species of trees fruit bearing or other wise, it would be unnecessary to have the first limb denot ing only the cashew or other fruit bearing trees.
Therefore, there is no indication that the words 'any other agricultur al crop ' in sub clause (C) are quite wide enough to compre hend all species of trees including eucalyptus plantations.
These words exclude only fruit bearing trees.
[410H; 41 1A D] State of Kerala vs Amalgamated Malabar Estates, A.I.R. 1980 404 Ker. 137; State of Kerala vs Malayalam Plantation Ltd., A.I.R. 1981 Ker. 1 and State of Kerala vs
K.C. Moosa Haji & Ors., A.I.R. , approved.
In seeking legislative intention, judges not only listen to the voice of the legislature but also listen atten tively to what the legislature does not say.
[410G H]


judgement:
vil Appeals Nos.
4885 91 of 1989.
From the Judgment and Order dated 21.9.
1989 & 6.10.1989 of the Punjab & Haryana High Court in C.W.P. No. 11218/89 and 12519, 12520, 12521, 12593, 12868 & 12463 of 1989.
P.H. Parekh, Manoj Swarup and J.P. Pathak for the Appellant.
Krishan Kumar and Mehta Dave & Co. for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
These appeals are directed against two Orders of the Punjab & Haryana High Court by which the High Court has directed the appellant Institute to admit respondent students 1 to 8B to its B .E. course irrespective of their merits.
The relevant admitted facts are that on May 24 and 25, 1989, respondent No. 9 Punjab University held a Com bined Entrance Test (C.E.T.) for admission to B.E. course (Session 1989 90) conducted by 4 different institutes in cluding the appellant Institute.
On June 26, 1989, the University declared the merit list of students who appeared in C.E.T. June 30, 1989 was the last date fixed for submit ting applications by students to individual institutes.
The students were given choice of the institutions and they were required to state their choice in order of preference.
The representatives from the 4 institutes met together at Chand igarh from 24th to 27th July 1989 to finalise the admissions tO the 4 institutes.
The meeting of the representatives of the 4 institutes was necessary to ensure that the students were given the institutes of their choice in the order of merit, subject, of course, to the students applying to the particular institutes and that the student did not get admission at more than one institute at a time.
The Commit tee of representatives interviewed the students and awarded them the institutes of their choice in the order of their respective merits.
Accordingly, the appellant Institute drew up its merit list of candidates.
Interviews were held in the respective institutes including the appellant Institute for filling up the reserved seats other than those 397 reserved for Scheduled Castes and Scheduled Tribes and also for filling up seats in general category which fell vacant subsequentIy as a result of the students leaving the appel lant Institute.
On August 14, 1989, a second round of inter views was held in all the institutes including the appel lant Institute for filling seats which fell vacant as a result of the students leaving the appellant Institute subsequently.
Incidentally, this was also the last date of admission to B.E. course as was notified in the prospectus of the appellant Institute.
However, the last date was extended to 25th August, 1989 by an advertisement in the newspaper, namely, Tribune published on August 19, 1989 wherein it was clearly mentioned that the admission to the course will be closed on August 25, 1989.
The advertisement was repeated in another newspaper, namely, the Times of India on August 20, 1989.
The appellantInstitute closed the admissions at 5.00 p.m. on August 25, 1989.
On this day, the position of the appellant Institute was that the last stu dent who was admitted to the B .E.
Course was at serial number 1127 in the merit list prepared by the University as per the results of the C.E.T 3.
On August 30, 1989, respondents 1 to 4 filed a Writ Petition No. 112 18/89 before the Punjab & Haryana High Court for a direction to the appellant Institute to extend its last date of admission and to admit them to the B.E. course in the appellant Institute alleging that six seats were lying vacant in the Institute.
In the meanwhile, as usual, the first test of the B.E. course was held by the appellant Institute after six weeks of the commencement of the course.
On September 19, 1989, the appellant Institute filed its written statement to the writ petition objecting to the maintainability of the petition against the appellant Institute as it was not a State within the meaning of Article 12 of the Constitution of India.
It was also pointed out in the written statement that since the past experience showed that some students left the Institute as soon as they got admission in the other institutes, the appellant Institute had admitted 10 additional students to the B.E. course.
The total seats available in the B.E. course in the appellant Institute were 180 and students at numbers 181 190 were admitted to meet this contingency.
It was also pointed out in the written statement that the last date of admission to the course was fixed by the appellant Institute taking into account the said past experience as well as to put a seal of finality on the process of admission which would otherwise continue indefinitely.
On September 20, 1989, the appellant Institute also filed a short affidavit in the writ petition stating therein that the admissions to the B.E. course had closed on 25th August, 1989 and no student had been 398 admitted thereafter.
It was also pointed out that regular classes had begun, and the first terminal examination had been held from 4th September, 1989 to 9th September, 1989 which carried weightage of about 30% marks.
Hence, the students admitted at the belated stage would not be able to cover up lecture attendance and no seat in excess of the total seats could be filled up.
On September 21, 1989, the High Court allowed the writ petition by proceeding on the assumption that more than half a dozen seats were lying vacant with the appellant Institute.
The High Court held that belated admissions were something that the students seeking such admissions would worry about rather than the appellant Institute.
The appel lant Institute was also directed to grant admissions to respondents 1 to 4 in the B.E. course forthwith.
As pointed out by the appellant Institute, on that day the factual position with regard to seats in the course was that out of 190 students who were granted admission, 12 students had left leaving a total strength of 178 students.
Since the last date for admission was August 25, 1989, 178 students had continued in the course with regular instructions and tests one of which was already held as stated earlier be tween 4th and 9th September, 1989, six weeks after the commencement of the course.
A further batch of Writ Petitions, namely, Writ Petitions Nos.
125 19, 12520, 1252 1, 12593, 12868, 12463 all of 1989 filed by respondents 5 to 8B respectively were allowed by the High Court on October 6, 1989 directing the appellant Institute to admit the respective respondents to the said course.
It also further appears that three other similar writ petitions filed by other students seeking admission to the course in the appellant Institute are pending before the High Court for preliminary hearing.
The appellant Institute further points out that the second test of the said course was scheduled to be held from 23rd to 28th October, 1989.
It is not disputed before us that whereas the last student admitted on merit in the appellant Institute was at serial number 1127 in the merit list prepared by the Univer sity as per the Combined Entrance Test, the respondent students were at the serial numbers in the said merit list, as follows: respondent No. 1 (1145), No. 2 (1147), No. 3 (116 1), No. 4 (1277), No. 5 (1259), No. 6 (1112), No. 7 (1266), No. 8 (1218), No. 8A (1189) and No. 8B (1245).
Thus it will be seen that except for respondent No. 6 who had not earlier applied for being admitted to the appellant Insti tute and had opted for some other Institute, all the re spondents had secured lower numbers in the merit list.
399 What is further, the students who were at a higher serial number of merit list were still waiting for admission to the appellant Institute, when the High Court directed the appel lant Institute to admit the respondent students.
What is more, even in their writ petitions before the High Court the respondent students had claimed no further relief than that they should be directed to be admitted to the appellantIn stitute according to their merit.
The relief claimed in Writ Petition No. 112 18/89 may be reproduced here by way of illustration: "this Hon 'ble Court may please to issue a Writ of Mandamus directing the respondents to extend the date of admission and to admit the petitioners in the B.E. course as per their merits;".
(emphasis supplied) The High Court further not only ignored the fact which was specifically pointed out in the appellant Institute 's affi davit in reply before it, that there were no seats available in the appellant Institute whose capacity was only 180 seats but also the fact that there were more meritorious students than the respondents as per the C.E.T. who could not secure admission and who were waiting to be admitted to the appel lant Institute.
The respondent students could get admission to the appellant Institute only if their comparative merits ordained it and not otherwise.
They could claim no merit over other meritorious students merely because they had approached the Court for securing admission.
There was further nothing wrong in the appellant Institute admitting 10 more students in the circumstances pointed out above.
The Institute has a capacity of only 180 students.
To meet the contingency of the students leaving it soon after admission they had admitted, as they do every year, 10 more students.
As it turned out, 12 of the students left leaving 178 students on the roll, with only 2 vacan cies.
The High Court could have directed only two students to be admitted and that too on merit.
Admittedly, there were more meritorious students than the respondents, waiting in queue.
The High Court thus travelled beyond its jurisdiction and not only directed more students than the Institute could absorb but also students who were less meritorious, to be admitted.
No reasons whatsoever have been given by the High Court for exercising its extraordinary writ jurisdiction so peremptorily which has resulted in injustice both to the appellantInstitute as well as to the students who stood higher in merit than almost all the respondent students except respondent No. 6.
We refrain from making any further comments on the impugned order.
400 8.
Since the respondent students stand already admitted, and the more meritorious students cannot now avail of the seats given to the respondents due to lapse of time, we do not propose to interfere with their pursuit of the course.
It is for this reason that we are dismissing the appeals.
In the circumstances, the appeals stand dismissed, but with no order as to costs.
G.N. Appeals dismissed.

dataset_name: IN-Abs

summary/full:
For admission to B.E. Course (1989 90 Session) in the appellant Institute and 3 other institutes, there was a Combined Entrance Test held by the Punjab University.
The results were declared, and students allotted to the respec tive institutes of their choice.
The appellantInstitute drew up merit list of candidates allotted to it and gave admis sions in that order.
To fill up the vacant seats as a result of some students leaving the Institute, the appellant Institute held inter views on 14.8.1989, which incidentally was the last date for admission to B.E. Course.
However, the last date was extend ed up to 25.5.1989.
When admission was closed on that day, the last student admitted was at section No. 1127 in the merit list prepared by the University.
Respondents 1 to 4 filed a writ petition before the High Court on 30.8.1989, alleging that six seats were vacant and the appellantInstitute be directed to admit them.
The High Court on 21.9.1989 allowed the writ petition on the assump tion that six seats were vacant, whereas only 2 seats were available, according to the appellantInstitute.
Respondents 5 to 8B also approached the High Court by way of writ petitions and the High Court directed the appel lant Institute to admit the six Respondents also in the B.E. Course.
Further, three other similar writ petitions were pending before the High Court.
395 Against the above said orders of the High Court, the appellantInstitute has preferred these appeals contending that the last candidate admitted was at section No. 1127 in the merit list and admittedly all the Respondents except Re spondent No. 6 were less meritorious, while candidates with higher merits were still waiting for admission.
It was contended that while there were only 2 vacant seats, the High Court has directed the appellant Institute to admit as many as ten candidates, that too long after the course started and the First Terminal Exams were over.
Dismissing the appeals, this Court, HELD: 1.1 The High Court not only ignored the fact which was specifically pointed out in the appellant Institute 's affidavit that there were no seats available in the appel lant Institute whose capacity was only 180 seats, but also the fact that there were more meritorious students than the Respondents as per the Combined Entrance Test, who could not secure admission and who were waiting to he admitted to the appellant Institute.
The Respondent students could get admission to the appellant Institute only if theft compara tive merits ordained it and not otherwise.
They could claim no merit over other meritorious students merely because they had approached the Court for securing admission.
In fact, in their writ petitions before the High Court, the respondent students had claimed no further relief than that they should be directed to be admitted according to their merit.
[399B E] 1.2 There was nothing wrong in the appellant Institute admitting 10 more students in B.E. Course.
The Institute has a capacity of only 180 students.
To meet the contingency of the students leaving it soon after admission the appellant Institute had admitted 10 more students as has been done every year.
As it turned out, 12 of the students left leav ing 178 students on the roll, with only 2 vacancies.
The High Court could have directed only two students to be admitted and that too on merit.
Admittedly, there were more meritorious students than the respondents, waiting in queue.
The High Court thus travelled beyond its jurisdiction and not only directed more students than the Institute could absorb but also students who were less meritorious to he admitted.
No reasons whatsoever have been given by the High Court for exercising its extraordinary writ jurisdiction so peremptorily which has resulted in injustice both to the appellant Institute as well as to the students who stood higher in merit than almost all the respondentstudents except Respondent No. 6.[399E H] 396 2.
Since, however, the respondent students stand already admitted, and the more meritorious students cannot now avail of the seats given to the respondents due to lapse of time, their pursuit of the course is not interfered with.
[400A]


judgement:
Appeal No. 401 of 1956.
Appeal by special leave from the judgment and order dated March 8, 1956, of the Travancore Cochin High Court at Ernakulam in I.T.R. No. 24 of 1954.
A. V. Viswanatha Sastri, section R. Ganapathy Iyer, J. B. Dadachanji and G. Gopalakrishna, for the appellant.
K. N. Rajagopala Sastri, R. H. Dhebar and D. Gupta, for the respondent.
October 7.
The Judgment of the Court was delivered by SARKAR J.
The appellant who was a Superintendent of Police in the service of the former Travancore State, retired sometime in 1940.
After retirement he was spending his time in studying Vedanta philosophy and expounding the same to such persons as were keen on understanding it.
He soon gathered about him a number of disciples, one of whom was J. H. Levy of London, U.K. Levy along with others used to receive instructions in Vedanta from the appellant.
He used to come to Travancore from England at regular intervals and stay there for a few months at a time and attend the discourses given by the appellant and so had the benefit of his teachings on Vedanta.
Levy had an account in Lloyd 's Bank at Bombay.
On December 13, 1941, Levy transferred the entire balance standing to his credit in this account amounting to Rs. 2,41,103 11 3, to the credit of an account which he got the appellant to open in his name in the 135 same bank.
Thereafter, from time to time Levy put in further sums into the appellant 's aforesaid account in Lloyds Bank, Bombay.
It appears that the payments so made up to August 19, 1951, amounted to about Rs. 4,50,000/ .
From time to time the appellant got moneys transferred from his account at the Lloyd 's Bank, Bombay, to his account in a bank at Trivandrum in Travancore.
This appeal arises out of orders for assessment to income tax passed against the appellant for the assessment years 1122, 1123 and 1124, all according to the Malayalam era.
The respective accounting periods according to the Gregorian calendar were from August 17, 1945, to August 16, 1946, August 17, 1946, to August 16, 1947, and August 17, 1947, to August 16, 1948.
It appears that during these periods Levy bad deposited in the appellant 's account at Lloyd 's Bank in Bombay the following respective sums: Rs. 13,304/ , Rs. 29,948/ and Rs. 19,983/ .
During the same periods the appellant had obtained transfers of the following respective sums from his Bombay account to his Trivandrum account: Rs. 81,200/ , Rs. 47,000/ and Rs. 37,251/ .
The Income tax Officer, Trivandrum, assessed the appellant to tax on the latter amounts as foreign income, i.e., income arising in India, and brought into Travancore State in the relevant periods.
We are not concerned in this case with the assessment made on other income of the appellant.
Tile appellant appealed from these assessment orders to the Appellate Assistant Commissioner who consolidated them into one appeal.
The Appellate Assistant Commissioner dismissed the appeal and confirmed the orders of the Income tax Officer.
The appellant then went up in appeal to the Appellate Tribunal but that appeal also failed.
The appellant thereafter obtained an order from the Tribunal referring the following Questions to the High Court of Travancore Cochin for decision: (i) Whether the aforesaid receipts from John H. Levy constitute income taxable under the Travancore Income tax Act, 1121 ? and 136 (ii) Whether there are materials for the Tribunal to hold that the deposits into the assessee 's bank.
account in Bombay by John H. Levy from 1941 as aforesaid represented income that accrued to the assessee outside Travancore State ? " The High Court answered the first question in the affirmative.
It however answered the second question in favour of the appellant, holding that he was carrying on a vocation or occupation in that State and the income derived therefrom should be considered as having arisen in Travancore, and that therefore the appellant was liable to be taxed not on the amounts which he brought into Travancore but on the amounts which had been paid to the credit of his account at Bombay by Levy during the relevant periods.
The appellant has now come up to this Court in appeal by special leave against the answer given by the High Court to the first question.
We are not concerned in this appeal with the answer given to the second question as it had been decided in favour of the appellant and there has been no appeal against it by the revenue authorities.
We do not think that the case presents any difficulty.
It has to be decided on the terms of the Travancore Income tax Act, 1121 (Malayalam Era), but as the provisions of that Act are, for.
the present purpose, identical with those of the Indian Income tax Act, 1922 , it would be more convenient to refer to the provisions of the latter.
Mr. Sastri, appearing for the appellant, has stated that the case involves really two points.
First, was the appellant carrying on a vocation ? And secondly, if he was, can the amounts with which we are concerned, be said to be profits or gains of the vocation ? We agree with his view of the case and proceed to discuss these points.
The first question is, whether the appellant was carrying on a vocation.
Under section 10 of the Income tax Act, 1922, tax is payable by an assessee in respect of the profit or gains of any profession or vocation carried on by him.
The facts found are that the appellant was studying Vedanta philosophy himself and 137 imparting the knowledge acquired by him as a result of his studies to such as cared to come and imbibe it.
There is no evidence to show, that the appellant had made it a condition that he would impart such knowledge only to those who were prepared to pay for it.
We have therefore to proceed on the basis that the appellant was teaching his, disciples Vedanta without any motive or, intention of making a profit out of such activity.
We find no difficulty in thinking that teaching is a vocation if not a, profession.
It is plainly so and it is not necessary to discuss the various meanings of the word. 'vocation ' for the purpose or to cite authorities to support this view.
Nor do we find any reason why, if teaching is a vocation, teaching of Vedanta is not.
It is just as much teaching, and therefore, a vocation, as any other teaching.
It is said that in teaching Vedanta the appellant was only practicing religion.
We are unable to see why teaching of Vedanta as a matter of religion is not carrying, on of a vocation.
In any case the question does not really arise, for, Whether the appellant was, in teaching Vedanta, practicing religion, is of course a finding of fact.
It may be that Vedanta could be taught as a practice of religion but it could of course also be taught as any other philo sophy or school of thought.
The statement of case in this.
case does not contain any finding that in teaching Vedanta the appellant was practicing religion.
It is said that in order that an activity may be called a vocation for the purposes of the Act, it has to be shown that it was an organised activity and that it was indulged in with a motive of making profit ; that as the appellant 's activity in teaching Vedanta was neither organised nor performed with a view to making profit, he could not be said to.
be carrying on a vocation.
It is said that as the word 'vocation ' has been used along with the words 'business and profession ' and the object of a business and a profession is to make a profit, only such activities can be included in the word 'vocation ' the object of which likewise is to make a profit.
We think that these contentions 18 138 lack substance.
We do not appreciate the significance of saying that in order to become a vocation an activity must be organised.
If by that a continuous, or as was said, a systematic activity, is meant, we have to point out that it is well known that a single act may amount to the carrying on of a business or profession.
It is unnecessary to discuss this question further as we find no want of system or continuity in the activity of the appellant.
He had gathered a large number of disciples around him and was instructing them in Vedanta regularly.
Levy came all the way from England at regular intervals to obtain such instructions.
All this clearly indicates Organisation and system.
Again, it is well established that it is not the motive of the person doing an act which decides whether the act done by him is the carrying on of a business, profession or vocation.
If any business, profession or vocation in fact produces an income, that is taxable income and none the less because it was carried on without the motive of producing any income.
This, we believe, is too well established on the authorities now to be questioned.
It was decided as early as 1888 in the case of the Commissioner of Inland Revenue vs Incorporated Council of Law Reporting(1) and followed ever since, that " it is not essential to the carrying on of a trade that the people carrying it on should make a profit, nor is it even necessary to the carrying on of the trade that the people carrying it on should desire or wish to make a profit".
If that were not so, a person carrying on what otherwise would be a business, may say that he did not carry on a business because it was not his intention to make any income out of it.
That would, of course, be absurd.
The question is, whether the activity has actually produced an income and it matters not whether that activity is called by the name of business, profession, vocation or by any other name or with what intention it was carried on.
The observation of Rowlatt, J., in Stedeford vs Beloe (2) to which we were referred by Mr. Sastri, that there could be no tax on pension granted to a retired (1) (1888)3 Tax Cas. 105, 113.
(2) 139 headmaster as "there is no background of business in it ", was clearly not intended to lay down that without a profit motive there could be no business, profession or vocation.
The pension could be taxed only if it had arisen out of the office and the only point decided was that it had not so arisen as the headmaster held no office, having retired earlier, at the date the pension had been granted: see the same case in the House of Lords(1).
We think therefore that the teaching of Vedanta by the appellant in this case can properly be called the carrying on of a vocation by him.
Then the other point to be decided is, whether the payments made by Levy were income received by the appellant from his vocation of teaching Vedanta.
A very large number of authorities, both Indian and English, have been pressed upon us in tile course of the argument.
These cases illustrate the application of the well settled principle that in the case of a voluntary payment, no tax can be levied on it if it bad been made for reasons purely personal to the donee and unconnected with his office or vocation while it will be taxable if it was made because of the office or vocation of the donee.
We do not consider it profitable to discuss them in this case.
Also it seems to us that the present case is too plain to require any authority.
The only point is, whether the moneys were received by the appellant by virtue of his vocation.
Mr. Sastri contended that the facts showed that the payments were purely personal gifts.
He drew our attention to the affidavit of Levy where it is stated " all sums of money paid into his account by me have been gifts to mark my esteem and affection for him and for no other reason".
But Levy also there said, " I have had the benefit of his teachings on Vedanta ".
It is important to remember however that the point is not what the donor thought he was doing but why the donee received it.
So Collins M. R. in Herbert vs McQuade referring to Inland Revenue vs Strong said at p. 649: " Now that judgment,.
whether or not the (1) (2) (3) 140 particular facts justified it, is certainly an affirmation of a principle of law that a payment may be liable to income tax although it is voluntary on the part of the persons who made it, and that the test is whether, from the standpoint of the person who receives it, it accrues to him in virtue of his office ; if it does, it does not matter whether it was voluntary or whether it was compulsory on the part of the persons who paid it.
That seems to me to be the test; and if we once get to this that the money has come to or accrued to, a person by virtue of his office it seems to me that the liability to income tax is not negatived merely by reason of the fact that there was no legal obligation on the part of the persons who contributed the money to pay it.
" It is well established that in cases of this kind the real question is, as Rowlatt J. put it in Reed vs Seymour (1), " But is it in the nature of a personal gift or is it a remuneration?", an observation which was quoted with approval by Viscount Cave, L. C. when the case went up to the House of Lords with the addition " If the latter, it is subject to the tax ; if the former, it is not ": see Seymour vs Reed (2).
We find it impossible to hold in this case that the payments to the appellant had not been made in consideration of the teaching imparted by him.
Levy admitted that he had received benefit from the teaching of the appellant.
It is plain to us that it was because of the teaching that the gift had been made.
It is true that Levy said that he made the gifts to mark his esteem and affection for the appellant.
But such emotions and therefore the gifts, were clearly the result of the teaching imparted by the appellant.
Mr. Sastri contends that that may be so, but we have no right to follow the successive causes and as a result thereof link the gift with the teaching.
An argument of this kind seems to have been advanced in Blakiston vs Cooper (3) and dealt with by Lord Ashbourne in the following words: "It was suggested that the offerings, were made as personal gifts to the Vicar as marks of esteem and (1) (2) (3) (1909) A.C. 104.
141 respect.
Such reasons no doubt played their part in obtaining and increasing the amount of the offerings, but I cannot doubt that they were given to the vicar as vicar.
and that they formed part of the profits accruing by reason of his office.
" We have no doubt in this case that the imparting of the teaching was the causa causans of the making of the gift; it was not merely a causa sine qua non.
The payments were repeated and came with the same regularity as Levy 's visits to the appellant for receiving instructions in Vedanta.
We do not feel impressed by Mr. Sastri 's contention that the first payment of Rs. 2,41,103 11 3 was too large a sum to be paid as consideration.
In any case we are not concerned in this case with that payment.
We are concerned with payments which are of much smaller amounts and as to which it has not been said that they were too large to be a consideration for the teaching.
And one must not forget, that these are cases of voluntary payments and the question of the appraisement of the value of the teaching received in terms of money is not very material.
If the first payment was too big to have been paid for the teaching received, it was too big to; have been given purely by way of gift.
In the view that we take, namely, that the payments with which we are concerned, were income, arising from the vocation of the appellants a teacher of Vedanta, no question of exemption under section 4(3)(vii) of the Act arises.
In order that a payment may be, exempted under that section, it has to be shown that it did not arise from the exercise of a vocation.
In the result, we have come to the conclusion that this appeal fails and it is dismissed with costs in this Court.
Appeal dismissed.

summary/full:
The assessee was teaching his disciples Vedanta philosophy without any motive or intention of making a profit out of such activity.
One of his disciples made gifts of money to him on several occasions.
It was contended by the assessee that he was not liable to tax on the amounts received as he was not carrying on any vocation and as the receipts were not profits or gains.
Held that, in teaching Vedanta the assessee was carrying on a vocation.
It is not necessary for an activity to be a vocation 134 that it should be an organised activity or that it should be practiced with a motive for making profit.
Commissioner of Inland Revenue vs Incorporated Council of Law Reporting, , 113, followed.
Held, further, that the payments made by the disciple, were income received by the assessee from his vocation.
In the case of a voluntary payment, no tax can be levied on it if it had been made for reasons purely personal to the donee and unconnected with his office or vocation but it will be taxable if it was made because of the office or the vocation of the donee.
The question is not what the donor thought he was doing but why the donee received it.
In the present case it is plain that it was because of the teaching that the gift had been made.


judgement:
ON: S.L.P. (Criminal) No. 2485 of 1989.
From the Judgment and Order dated 12.12.1989 of the Delhi High Court in C.W.P. 589 of 1989.
Harjinder Singh and R.N. Joshi for the Petitioner.
Soli J. Sorabjee, P.K. Goswamy, Udai Lalit, C.V.S. Rao, P. Parmeshwaran and Sushma Suri for the Respondents.
The Judgment of the Court was delivered by REDDY, J.
This is a petition under Article 136 of the Constitution of India against the judgment and order of the High Court of Delhi dismissing the writ petition filed on behalf of the detenu challenging the detention.
Notice was given and after hearing counsel for both the parties at length the matter is being disposed of at the admission stage.
The detenu was detained under Section 3(1) of the Con servation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as 'the Act ') by an order dated 13.7.89.
On 7.6.89 Officers of Directorate of Revenue Intelligence, New Delhi intercepted a Maruti Car in which one Mahesh Kumar Chauhan and three others were present but no recovery was effected on the spot.
But later on the Car was thoroughly rummaged in presence of two independent witnesses and the occupants of the car and 206 foreign marked gold biscuits of ten tolas each were recovered from the cavities of the car meant for fitting speakers in the rear portion of the car.
The occupants did not give any explanation for the possession of gold biscuits.
On personal search of Mahesh, a slip was recovered which contained a telephone number and Mahesh Kumar in his statement admitted that he was to hand over the smuggled goods to one Vijay Kumar.
The premises of these two peoples were searched and a receipt of token tax in respect of the car was recovered.
Mahesh Kumar admitted that he was visiting Dubai frequently to bring con 320 sumer goods and gold ornaments for being sold in the local market.
One Avtar Singh who was engaged in smuggling of foreign gold biscuits, agreed to sell the gold biscuits to Mahesh Kumar on commission.
He also gave some more details about Avtar Singh.
Similarly Vijay Kumar also made a state ment.
From these statements it is also revealed that peti tioner herein Sanjeev Kumar Aggarwal had made arrangements for selling the gold biscuits.
The residential premises of the petitioner was searched and he was taken into custody.
The officers of the Directorate of Revenue Intelligence questioned the petitioner and he gave a statement.
On the basis of this material the detaining authority passed an order of detention on 13.7.89 and the same was served on 24.7.89.
The grounds were also served in time.
The learned counsel submitted that there is a total non application of mind by the detaining authority inasmuch as he was failed to note that the detenu was in jail and that there is no possibility of his being released and the failure on the part of the detaining authority to consider the same renders the detention invalid.
It is true that the petitioner was in judicial custody in connection with crimi nal proceedings.
An application was filed in the court of A.C.M.M. Delhi for extending the remand and the remand was granted upto 6.7.89.
However, two detenus who figured as co accused in that criminal proceedings were also in the judicial custody and on their behalf an application for bail was filed.
As mentioned in the grounds of detention the detaining authority has noted these circumstances.
In para graph No. 16 it is mentioned that: 'I am aware that all of you are under judicial custody and possibility of your release on bail in near future cannot be ruled out.
Also nothing prevents Mahesh Kumar Chauhan, Vijay Kumar Dharne and you from moving bail application and get ting release on bail." Then in paragraph No. 24 it is mentioned thus: "From the foregoing facts and circumstances and statements recorded in this connection as disclosed herein above, it is evident that you have engaged yourself in abetting the smuggling of goods unless prevented you will continue to do so in similar manner or otherwise in future when released on bail.
" The further submission of the learned counsel is that the petitioner 321 alongwith two others were in judicial custody and they were further remanded upto 20.7.1989 and no bail application was filed or pending as on the date of passing orders of deten tion.
Therefore it must necessarily be inferred that there is no awareness on the detaining authority of this aspect.
Reliance is placed on some of the decisions of Supreme Court of India in this context.
In Abdul Razak Abdul Wahab Sheikh vs
S.N. Sinha, Commis sioner of Police, Ahmadabad and Anr., ; it is held that there must be awareness in the mind of the detain ing authority that the detenu is in custody at the time of service of order of detention and that cogent and relevant material and fresh facts have been disclosed necessitating making of an order of detention.
In the course of the judg ment it is noted that the detaining authority also was not aware that application for bail filed on behalf of the detenu was rejected by the designated court and therefore, there was no application of mind.
In Binod Singh vs District Magistrate, Dhanbad, 16 it is laid down "If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised.
In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail.
There is no indica tion that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order." In Vijay Kumar vs State of Jammu and Kashmir, ; the detention order was quashed because it did not give the slightest indication that the detaining authority was aware that the detenu was already in jail.
But in the case before us the detaining authority has noted in the grounds that the petitioner alongwith other two coaccused have been remanded to judicial custody and the bail applica tion was filed on behalf of the other two detenues and there is every likelihood of the petitioner also being released on bail and as such the possibility cannot be ruled out.
The other material relied upon by the detaining authority in apprehending that the detenus are likely to be released on bail is that their remand to the judicial custody was upto 20.7.89 and that the other two co accused have also filed bail applications and they were pending and that this mate rial is sufficient to indicate that petitioner also may file bail application and is likely to be released on bail.
322 We have carefully examined the material relied upon by the detaining authority in this regard and we are of the opinion that it cannot be said that there was no awareness in the mind of the detaining authority about the detenu being in custody and that if he is released on bail he is likely to indulge in the prejudicial activities.
At this juncture we may also notice another decision of the Supreme Court.
In Ramakrishna Rawat vs District Magistrate, Jabal pur, , the detention order was upheld since the custody was obviously of a short duration and on the basis of the antecedent activities of the detenu in the proximate past, the detaining authority could reasonably reach its subjective satisfaction in respect of the detenu that he was in custody.
The learned counsel, however, submitted that in case the bail application is filed, the same can be opposed or even if enlarged the same can be questioned in a higher court and that a mere bald statement that the person would repeat his criminal activities after release would not be enough.
In Smt.
Shashi Aggarwal vs State of U.P. and Ors.
, ; it is observed: "The possibility of the court granting bail may not be sufficient.
Nor a bald statement that the person would repeat his criminal activities would be enough.
There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order.
" This is a case of detention on the ground of likelihood of disruption of public order by the detenu.
The detention order shows that the order had been made only on the sole ground that the detenu was trying to come out on bail.
Learned counsel also relied upon the decision in Ramesh Yadav vs District Magistrate, Etah & Ors., wherein it is observed: "Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail, an order of detention under the National Security Act should not ordi narily be passed.
If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised.
" 323 But as already held in the instant case the detaining au thority was not only aware that the detenu was in jail but also noted the circumstances on the basis of which he was satisfied that the detenu was likely to come out on bail and continue to engage himself in the smuggling of goods.
There fore the detention was not ordered on the mere ground that he is likely to be released on bail but on the ground that the detaining authority was satisfied that the detenu was likely to indulge in the same activities if released on bail.
At this stage it is useful to refer to another impor tant decision rendered by the Constitution Bench in Ramesh war Shaw vs District Magistrate, Burdwan, ; , wherein the detention order was served while the detenu was in custody.
The detenu was in jail by virtue of a remand order.
The Constitution Bench considered the effect of the detenU 's subsisting ' detention and it was indicated that the detenu 's subsisting detention did not by itself invalidate the detention order but facts and circumstances justifying the order of preventive deten tion notwithstanding his custody were necessary to sustain such an order.
It is observed in the said case that: "Whether the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released.
The antecedent history and the past conduct on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person atter his release is necessary . " It was further observed that: "Therefore.
we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or m jail, will always have to be determined in the circumstances of each case.
" The principles laid down by the Constitution Bench are followed in a number of subsequent decisions.
In Alijan Mian vs District Magistrate, Dhanbad, [1983] 4 SCC 301 the detention order was upheld even though the detenu was in jail custody on the date of passing of the detention order because the 324 detention order showed that the detaining authority was alive to the fact yet it was satisfied that if the detenu was enlarged on bail, which was quite likely, he could create problems of public order.
In N. Meera Rani vs Government of Tamil Nadu & Anr., [ 18 all these earlier cases have been referred to extensively and the conclusions are deduced as follows: "Subsisting custody of the detenu by itself does not invali date an order of his preventive detention and the decision must depend on the facts of the particular case, preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of the public order etc.
ordinarily it is not needed when the detenu is already in custody; the de taining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detain ing authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in pint of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release.
This appears to us, to be the correct legal position.
" In one of the latest judgments of this Court in Shri Dhar mendra Suganchand Chelawat etc.
vs Union of India and Ors.
JT , once again all the authoritative pro nouncements including that of the Constitution Bench in Rameshwar Shaw 's case are referred to and the Bench which consisted of three Judges observed thus: "The decisions referred to above led to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justi fying such detention despite the fact that the detenu is already in detention.
The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent materi al before the detaining authority on the basis of which it may be 325 satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.
" It could thus be seen that no decision of this Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances.
Therefore the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail.
We have already, in the instant case, referred to the grounds and the various cir cumstances noted by the detaining authority and we are satisfied that the detention order cannot be quashed on this ground.
Learned counsel, however, strongly relied on Smt.
Shashi Aggarwal 's case and Ramesh Yadav 's case and contended that in the instant case also the bail application could be opposed if moved or if enlarged the same can be questioned in a higher court and on that ground the detention order should be held to be invalid.
In N. Meera Rani 's case a Bench of three Judges noted the above observations in Smt.
Shashi Aggarwal 's case and Ramesh Yadav 's case and it is said that they were made on the facts of those particular cases and the Bench also observed thus:.
"A review of the above decisions reaffirms the position which was settled by the decision of a Constitution Bench in Rameshwar Shaw case.
The conclusion about validity of the detention order in each case was reached on the facts of the particular case and the observations made in each of them have to be read in the context in which they are made.
None of the observations made in any subsequent case can be construed at variance with the principle indicated in Ra meshwar Shaw case for the obvious reason that all subsequent decisions were by benches comprised of lesser number of judges.
We have dealt with this matter at some length be cause an attempt has been made for some time to construe some of the recent decisions as modifying the principle enunciated by the Constitution Bench in Rameshwar Shaw 's case.
" 326 AS a matter of fact, in Shri Dharmendra Suganchand Chela wat 's, case there is a reference to Smt.
Shashi Aggarwal 's, case and Ramesh Yadav 's, case and a Bench of three Judges following the decision of the Constitution Bench in Ramesh war Shaw 's Case, laid down the above principles which we have already referred to.
Therefore we see no force in the submission.
The next submission of the learned counsel is that the detaining authority has not applied his mind properly in rejecting the representation made by the detenu.
It is submitted that in Annexure X 3, an application sent by Vijay Kumar, the co detenu, it is clearly mentioned that his statement was recorded under torture and duress.
Likewise in Annexure X 4, a petition filed in the Court of A.C.M.M.
New Delhi, it is complained that the statement was recorded under torture and duress.
According to the learned counsel, this petition as well as the medical reports of the Doctors who examined Vijay Kumar have not been referred to and considered by the authority while rejecting the representa tion.
Reliance is also placed on a judgment of the Delhi High Court in Sat Pal Manchanda vs
M.L. Wadhawan and Ors., (Criminal Writ No. 333 of 1986) decided on 30.10.86.
In that case it is held that all the relevant material should be taken into consideration by the detaining authority while disposing of the representation.
But in the instant case the circumstances are different.
As a matter of fact, it is referred in paragraph 15 of the grounds that a telegram dated 8.6.89 was received in the Ministry of Finance alleg ing that the detenu was picked up by the DRI officers and that the allegations made therein were found false and baseless.
In paragraph 17, it is also mentioned that the detenu alongwith his accomplices retracted from their state ment dated 8.6.89.
It can therefore be seen that the detain ing authority has considered the allegations that the detenu was manhandled etc.
At any rate, the detaining authority has clearly noted that the detenu has retracted from the alleged statement, therefore it can not be said that there is non application of mind in this regard, namely, in considering the representation.
The same principle applies to the Advi sory Board also.
According to the submissions of the learned counsel, these documents were not placed before the Advisory Board in its meeting on 18.9.89.
Whatever statement was made by the petitioners on 22.6.89 prior to the detention and the grounds clearly disclose that there was retraction.
It must also be noted in this context that in the grounds in para graph 10 also it is mentioned that a telegram was received on 9.6.89) alleging about the wrongful arrest and extraction of the statements and the detaining authority has also taken note of the allegations made against the DRI officers which were round to 327 be false and baseless.
The same material was there before the Advisory Board.
Therefore there is no force in this submission.
It is lastly submitted that there was 11 days delay in serving the detention order.
It is true that the order of detention was passed on 13.7.89, but the same was served on 24.7.89.
According to the learned counsel, there is a viola tion of Section 3(3) of the Act.
The said provision lays down that for the purpose of Article 22(5) of the Constitu tion, the order should be served as soon as possible but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention.
Learned counsel for the State submitted that firstly the point of delay was not taken up in the special leave petition, there fore he had no opportunity to counter the same.
However, from the record he submitted that it took quite sometime for translating the documents to Hindi and Gurumukhi.
We have seen the documents filed before us and we are satisfied that there are valid and sufficient reasons for delay in serving the detention order.
Thus, we find no merit in anyone of the submissions.
The petition is, therefore, dismissed.
N.V.K. Petition dismissed.

summary/full:
The petitioner was detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act by an order dated 13.7.1989.
The facts lead ing to his arrest and detention are: On 7.7.1989 officers of Directorate of Revenue Intelli gence New Delhi intercepted a Maruti Car in which one Mahesh Kumar Chauhan and three others were present.
On search of the car no recovery was made on the spot, but later on when the car was thoroughly rummaged in presence of two independ ent witnesses and the occupants of the car, 206 foreign marked gold biscuits of ten tolas each were recovered from the cavities of the car meant for fitting speakers in the rear portion of the car.
The occupants did not give any explanation for the possession of the.
said gold biscuits.
However on personal search of Mahesh, a slip was recovered which contained a telephone number and Mahesh Kumar in his statement admitted that he was to hand over the smuggled goods to one Vijay Kumar.
Mahesh Kumar admitted that he was visiting Dubai frequently to bring consumer goods and orna ments for being sold in the local market.
According to him one Avtar Singh who was engaged in smuggling of foreign gold biscuits, agreed to sell the gold biscuits to Mahesh Kumar on commission.
He also gave some details about Avtar Singh.
Similarly Vijay Kumar also made a statement.
From these statements it is also revealed that petitioner Sanjeev Kumar Aggarwal had made arrangements for selling the gold bis cuits.
the residential premises of the petitioner was searched and he was taken into custody.
The petitioner made a statement before the officers of the Directorate or Reve nue Intelligence.
On the basis of the material the detaining authority passed an order of detention on 13.7.1989 which was served on the petitioner on 24.7.1989.
The grounds of detention were also served on the petitioner in time.
318 The petitioner challenged his detention by means of a writ petition before the Delhi High Court, and having re mained unsuccessful, he filed this petition for Special Leave to Appeal against the order of the Delhi High Court dismissing his writ petition.
Before this Court two main points have been urged viz., (i) that there is a total non application of mind by the detaining authority inasmuch as he has failed to note that the petitioner was in jail, and that there was no possibili ty of his being released, and the failure to consider this aspect on the part of the detaining authority renders his detention invalid; and (ii) that the detaining authority has not applied his mind properly in .rejecting his representa tion and that there was delay in serving the detention order on him.
Dismissing the petition, this Court, HELD: Whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.
No decision of this Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances.
[326B] Section 3(3) of the Act lays down that for the purpose of Article 22(5) of the Constitution the order should be served as soon as possible but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention.
[320B] In the instant case from the record it was submitted that it took quite sometime for translating the documents to Hindi and Gurmukhi, and the Court is satisfied that there are valid and sufficient reasons for delay in serving the detention order.
[327C D] Abdul Razak Abdul Wahab Sheikh vs
S.N. Sinha, Commisioner of Police, Ahmedabad & Anr., ; ; Binod Singh vs District Magistrate, Dhanbad, ; ; Vijay Kumar vs State of Jammu & Kashmir, ; ; Ramakrishna Rawat vs District Magistrate, Jabalpur, ; Smt.
Shashi Aggarwal vs State of U.P. & Ors., ; ; Ramesh Yadav vs District Magistrate, Etah & Ors.
, ; Rameshwar Shaw vs District Magistrate Burdwan, ; ; Alijan 319 Mian vs District Magistrate, Dhanbad, [1983] 4 S.C.C. 301; N. Meera Rani vs Government of Tamil Nadu & Anr., ; Shri Dharmendra Suganchand Chelawat etc.
vs Union of India & Ors., J.T. Sat Pal Man chanda vs
M.L. Wadhawan & Ors., Crl.
Writ No. 333 of 1986, decided by Delhi High Court on 30.10.1986.


judgement:
vil Appeal Nos.
4008 09 of 1985.
From the Judgment and Order dated 26.9.1983 of the Patna High Court in C.W.J.C. No. 1634 of 1977.
WITH C.M.P. Nos.
5513 14 and 19577 78 of 1988.
375 Shanti Bhushan and P.D. Sharma for the Appellants.
Tapesh Chandra Ray, D.P Mukherjee, R.P. Singh and S.N. Jha for the Respondents.
M.P. Jha for the Intervener. ' The Judgment of the Court was delivered by KULDIP SINGH, J.
The question for our consideration in these appeals is whether by an executive order the Bihar State Government can merge the cadre of District Engineers which is a part of "Rural Engineering Organisation" with the cadre of Executive Engineers governed by statutory rules called the Bihar Engineering Service Rules, 1939 (hereinaf ter called the 1939 Rules).
Necessary facts to determine the above question are as under: The cadre of District Engineers was created by the erstwhile District Boards in the State of Bihar.
The re cruitment and conditions of service of the said cadre were governed by the Government District Engineers Service Rules, 1957 (hereinafter called the 1957 Rules) which were framed under the Bihar and Orissa Local Self Government Act, 1885 (hereinafter called the Act).
Apart from the District Engi neers, a Rural Engineering Cell of the Public Works Depart ment was also functioning in 'the rural areas.
Bihar Govern ment by an order dated February 9, 1965, integrated the two into one organisation called "Rural Engineering Organisa tion" (hereinafter called REO).
The REO was an entirely new department headed by a Chief Engineer with the powers of Inspector of Local Works under the Act.
Two posts of Superintendent Engineers, 19 posts of District Engineers and number of other subordinate posts were created under the Chief Engineer.
In the new set up the cadre of District Engineers created under the 1957 Rules became almost extinct and assumed a new shape under the REO.
On the other hand, the cadre of Executive Engineers in Bihar Public Works Department was governed by the 1939 Rules.
Rule thereof is as under: "4.
Sources of recruitment Recruitment to the service shall be made 376 (i) by direct recruitment, and (ii) by promotion from the Bihar Engineering Service, Class II . . " The Bihar Government by a Memorandum dated February 18, 1977, decided to merge the cadre of District Engineers belonging to the REO with the cadre of Executive Engineers of the Public Works Department.
The operative part of the order is as under: "Therefore, in the public interest, the Government has decided that the cadre of the District Engineers be merged with the equivalent/parallel cadre of Executive Engineers of Public Works Department.
" Vinay Kumar Verma and others, who were working as As sistant Engineers in the Bihar Engineering Service, Class II, challenged the above mentioned merger order before the Patna High Court on the following grounds: (i) Under the 1939 Rules Assistant Engineers are eligible for promotion to the posts of Executive Engineers.
By merg ing the cadres, the chances of promotion of the Assistant Engineers are likely to be adversely affected and as such merger order is arbitrary and is liable to be quashed.
(ii) That the District Engineers ' service was constituted under the 1957 Rules flamed by the State Government in exercise of the powers under Sections 36(a) to 36(f) of the Act.
The cadre of Executive Engineers in the Public Works Department was created by the 1939 Rules.
The two cadres having been created under their respective statutory rules, the same cannot be merged by an executive order.
The compo sition of cadres created by the statutory rules cannot be changed by an executive order.
(iii) Under Rule 4(i) and 4(ii) of the 1939 Rules, recruit ment to the cadre of Executive Engineers can only be by direct recruitment and by way of promotion.
The merger of the District Engineers cadre with the Executive Engineers is thus contrary to the 1939 Rules and as such cannot be sus tained.
The High Court found that the chances of promotion of the 377 Assistant Engineers were in no way adversely affected by the merger as the District Engineers came to the cadre of Execu tive Engineers along with their posts.
The High Court fur ther held that the Assistant Engineers who were in the lower cadre could not challenge the merger specially when the same did not affect their rights in any manner.
On the other two points the High Court relied on Rule 56 of the Bihar Service Code, 1952 which is in the following terms: "56(a) The State Government may transfer a Government serv ant from one post to another . . " The High Court held that the Government has the power under the above quoted rule to transfer a Government servant from one cadre to another.
According to High Court even though the merger is not explicitly under rule 56(a) but since the power is there the District Engineers be deemed to have been transferred to the Public Works Department in terms of the said Rule.
The High Court dismissed the writ petitions of the Assistant Engineers.
This is how these two appeals by way of special leave are before us.
Mr. Shanti Bhushan, learned Senior Advocate, appearing for the appellants has reiterated the above mentioned three points in his arguments before us.
We agree with the High Court that the appellants, who were Assistant Engineers in Bihar Engineering Service, Class 11, were not affected adversely by the impugned order in any manner.
The District Engineers were merged in the cadre of the Executive Engineers along with the permanent posts which they were holding on the date of merger.
The cadre of the Executive Engineers was thus enlarged with the result that more vacancies would become available in future to be filled by way of promotion from the cadre of Assistant Engineers.
The merger would thus operate to their advantage rather than disadvantage.
The second point as projected by Mr. Shanti Bhushan does not arise in the facts and circumstances of the present case.
It is no doubt correct that initially the cadre of the District Engineers was constituted by the 1957 Rules which were framed under the 1885 Act, but by the time the impugned order was issued in the year 1977, it was operating 378 as an entirely different cadre created in the year 1965 as a part of REO.
The REO, which was new department, consisted of a Chief Engineer, two Superintending Engineers, 19 posts of District Engineers, number of Assistant Engineers and Over seers.
The District Engineers were no longer a provincia lised cadre under the District Boards as created by the 1957 Rules but was a new cadre operating under the REO.
We are, therefore, of the view that the cadre of District Engineers under the REO was created by the State Government by an executive order and as such the State Government could further merge the same with any other cadre by an executive fiat.
The third limb of the argument based on Rule 4(i) and 4(ii) of the 1939 Rules may now be examined.
It is not disputed that the District Engineers were equivalent in rank to the Executive Engineers.
The pay scales were also identi cal.
The two equivalent and parallel cadres were operating in two different fields.
To achieve administrative efficien cy the State Government wanted to merge these cadres.
The Executive Engineers were governed by the 1939 Rules which are statutory, whereas the District Engineers created by Government order dated February 9, 1965 did not have any statutory flame work.
The statutory cadre of Executive Engineers has not been interfered with.
It is operating under the 1939 Rules.
The District Engineers are being merged with Executive Engineers and not the vice versa.
Rule 4(i) and 4(ii) of the 1939 Rules do not come into picture at all.
It is not a question of appointment of an individual to the service.
A group of persons similarly situated is sought to be brought into the service.
The State Government can always increase the number of posts in the cadre of Execu tive Engineers.
What is being done by the impugned order is that the incumbents of the posts are also being brought into the cadre along with the posts.
The conditions of service of the existing members of service are not being altered or affected to their prejudice in any manner.
In fact none of the Executive Engineers has challenged the impugned order.
After merger the District Engineers would also be governed by the 1939 Rules.
The impugned order being a policy deci sion is in a way supplemental to the Rules and does not go contrary to any of the provisions of the Rules.
We therefore see no force in the arguments of Shri Shanti Bhushan.
The view which we have taken to uphold the impugned order, we 379 do not wish to express any opinion on the applicability and interpretation of Rule 56 of the Bihar Service Code, 1952 on which the High Court has relied.
The appeals fail and are dismissed with no order as to costs.
The Civil Miscellaneous Petition Nos.
55 13 14 of 1988 and 19577 78 of 1988 are also dismissed as having become infructuous.
P.S.S. Appeals dismissed.

summary/full:
Rule 4 of the Bihar Engineering Service Rules, 1939 provided for recruitment to the cadre of Executive Engineers in the Bihar Public Works Department by (i) direct recruit ment, and (ii) promotion from Class II Service.
The State Government by a memorandum dated February 18, 1977 merged with the cadre of Executive Engineers of the Public Works Department, the cadre of District Engineers functioning under the Rural Engineering Organisation.
The latter cadre was constituted by the State in 1965 by integration of the Rural Engineering Ceil of the Public Works Department and the cadre of District Engineers created by the erstwhile District Boards under the Government District Engineers Service Rules, 1957 framed under sections 36(a) to 36(1) of the Bihar and Orissa Local Self Government Act, 1885.
The appellants Assistant Engineers assailed the said merger before the High Court on the ground that it adversely affected their chances of promotion, that the District Engineers ' Service was constituted under the 1957 Rules framed under the 1885 Act whereas the cadre of Executive Engineers in the Public Works Department was created by the 1939 Rules, and, as such the two cadres having been created under their respective statutory rules the same could not be merged by an executive order, and that since under rule 4(i) and 4(ii) of the 1939 Rules recruitment to the cadre of Executive Engineers could only be by direct recruitment and by way of promotion, the merger of District Engineers ' cadre with the Executive Engineers was contrary to the 1939 Rules.
The High Court negatived their contentions.
Dismissing the appeal, the Court, HELD: 1.
The appellants, who were Assistant Engineers in the Bihar Engineering Service, Class II were not affected adversely by the merger in any manner.
The District Engi neers were merged in the 374 cadre of the Executive Engineers along with the permanent posts which they were holding on the date of merger.
The cadre of the Executive Engineers was thus enlarged with the result that more vacancies would become available in future to be filled by way of promotion from the cadre of Assistant Engineers.
The merger would thus operate to their advantage rather than disadvantage.
[378E F] 2.
The provincialised cadre of District Engineers under the District Boards was constituted by the 1957 Rules but in the year 1977 when merger took place the District Engineers constituted an entirely different cadre which was created in the year 1965 as a part of Rural Engineering Organisation.
It did not have any statutory frame work.
Since the cadre of District Engineers under the Rural Engineering Organisation was created by the State Government by an executive order the State Government could further merge the same with any other cadre by an executive fiat.
The Executive Engineers were governed by the 1939 Rules which are statutory.
Their statutory character has not been interfered with.
The Dis trict Engineers were being merged with Executive Engineers and not the vice versa.
[378H, 379B,379D] 3.
Rule 4(i) and 4(ii) of the 1939 Rules do not come into picture at all.
It was not a question of appointment of an individual to the Service.
A group of persons similarly situated in respect of rank and pay scale was sought to be brought into the Service along with their posts.
The State Government could always increase the number of posts in the cadre of Executive Engineers.
The conditions of service of the existing members of Service are not being altered or affected to their prejudice in any manner.
[379E F] 4.
The merger order being a policy decision is in a way supplemental to the Rules and does not go contrary to any of the provisions of the Rules.
[379F G]