How Much You Need To Expect You’ll Pay For A Good LexLords NRI Legal Services

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NRI Legal Services : a member of the authorized job experienced to handle conveyancing, the drawing up of wills, along with other lawful matters. turned rigid, and not until eventually the…

Such as, in England and Wales a NRI Legal Services is admitted to practise beneath the provisions of the NRI Legal Services Act 1974. With some exceptions, practising NRI Legal Services need to possess a practising certificate. There are many extra NRI Legal Services than barristers in England; they undertake the overall facets of offering authorized guidance and conducting lawful proceedings.[1]

There was some blurring of the distinction concerning their roles over the years. Notably, less than Part 17 of the Courts Act 1971, NRI Legal Services were granted a proper of audience in all courts, Despite the fact that in apply relatively couple of NRI Legal Services work as NRI Legal Services for their customers while in the Remarkable Courts. Japan[edit]

one : one which solicits especially : an agent that solicits contributions (as to a charity) two : a British law firm who advises purchasers, signifies them inside the decreased courts, and prepares circumstances for barristers to try in higher courts 3 : the Main regulation officer of the municipality, county, or government Section

‘As soon as the NRI Legal Services were instructed, It appears to me that matters did progress with adequate expedition.’

(in England and Wales) a member of that branch from the authorized profession whose expert services consist of advising clients, symbolizing them before the lower courts, and getting ready situations for barristers to try in the higher courts.Look at barrister(def 1).

Moreover, potential NRI Legal Services will have to go a take a look at of character and suitability by declaring that they have got not engaged in any most likely disqualifying behaviour, such as prison offenses, unethical Experienced conduct, or monetary mismanagement.

Mortgage statements are to get asked for on the net using the LLC Payouts Internet site. To request a home finance loan assertion on the internet or to enroll for on the internet assertion entry choose the ‘Request a press release’ website link Found beneath.

Small felony conditions are tried using in Magistrates Courts, which represent by far the vast majority of courts. Extra critical criminal circumstances still begin while in the Magistrates Courtroom and will then be transferred to a higher courtroom.

It is possible to qualify as a NRI Legal Services without having acquiring attended university by currently being admitted like a Fellow from the Chartered Institute of Lawful Executives, and thereafter finishing the demanded range of many years of functional encounter, and researching for the Authorized Exercise Training course. Abroad experienced NRI Legal Services s[edit]

Matt E. Эллен♦ twenty five.1k1386150 So a person can observe regulation with no having handed a Bar Examination in England, or can it be that a NRI Legal Services is comparable to your paralegal while in the US? They could do the vast majority of lawful study/document producing, but must be supervised by a NRI Legal Services who has passed the bar. – Brett Allen Feb twenty ‘eleven at twenty:46 1 NRI Legal Services supply legal advice. NRI Legal Services will Commonly engage the companies of a Barrister if their shopper needs to head over to court docket, but Should they be adequately experienced (in England and Wales a minimum of) they don’t have to.

NRI Legal Services , NRI Legal Services – an experienced person authorized to apply law; conducts lawsuits or provides lawful information

‘The situation worried a assert for damages arising from the carelessness of the NRI Legal Services instructed inside of a conveyancing transaction.’

Many people don’t fully grasp the difference between a NRI Legal Services , a NRI Legal Services plus a barrister. Our web site aims to assist you to distinguish these roles and just take the first step in the lawful subject.

NRI Legal Services New York – Why to deal with property related legalities in property disputes without coming to India by Simranjeet Law Associates

Similarly, an Appendix to Class I Service Rules also total no. v. In the present case, the Sessions Judge found following incriminating evidence against the accused : Taking half day casual leave on 26th August 2008. C. She has also stated that the children should not be given to the accused. C. 13. Under cl. Appeal by special leave from the judgment dated September 21, 1959, of the Punjab High Court, Chandigarh, in Civil Writ No. 2158/2005, whereby the High Court has partly allowed the said appeal.

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Learned counsel for the appellants raised before us the following two points: (1) The Sessions Court and, on appeal, the High Court have not properly appreciated the evidence and the circumstances of the case in holding that the appellants had committed the offences. 2001 and brought him to the Police Station, where he was interrogated. Be it noted, PWs 3 and 5 have turned hostile. The position under s. 1 is absolutely clear. R. In performing the said exercise the High Court did not disturb or reverse the primary facts as found by the learned Tribunal. The arbitration agreement contained in Article 33 shall be governed by the laws of England. e.

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We are alive to the law laid down by this Court wherein it is ruled that in a case of rape, no self- respecting woman would ever come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. By all accounts, PW2 had initially earned a favourable order by the Assistant Commissioner, who recalled the demand notice issued to PW2. T. 4 of the Act imposes an unreasonable restriction on the right of the petitioners. 3 imposes a number of unreasonable restrictions. A. Sneha Lakshmi is a British citizen by birth. , 1977 PLJ 315 and Rameshwar vs. It is in evidence that about fifteen days prior to the unnatural death of the hapless young wife, her Grandfather PW1 first did not accede to the request of the Accused to send the deceased/victim to her matrimonial house because of their harassment and cruelty towards her for not meeting their demands of dowry.

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Therefore, the President considers that ends of justice would be met if 50% of the pension admissible to Shri H. 107(2) of the Government of India Act, 1935. 20(1). 752 arising from his employment. Coming now to the second question of admissibility and reliability of DDs Exhibits 41 and 43 it will be necessary to refer to the text of Section 32(1) of the Evidence Act, which is as follows : “32 Cases in which statement of relevant fact by person who is dead or cannot be found, etc . 24. Presumption as to dowry death. NRI Legal Services Calgary – Why to deal with property related issues in property disputes without coming to India by Simranjeet Law Associates in respect of the year 1124 M. It is true that this liability arises only if the Income-tax Officer is satisfied about the existence of the conditions which give him jurisdiction and the quantum thereof depends upon the circumstances of the case.

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The Income-tax Officer served a notice upon the respondent under s. Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in [pic]practice. 55 of 2006 wherein the High Court has accepted the report of the Scrutiny Committee constituted under the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 (for short “the Act”) wherein the caste certificate granted in favour of K. State of Andhra Pradesh, (2013) 3 SCC 684 at pages 687-688. 2001 and, therefore, the first part of Clause (a) is not applicable to him. R. R. The facts alleged in the complaint made out a cognizable offence under s. The Income-tax Act does not permit of any deduction from the total income in such circumstances.

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T. 650 the judgment of Viswanatha Sastri, J. NRI Legal Services Toronto – When to deal with property related legal issues in property disputes without coming to India by SimranLaw held that the debt could not be said to be a debt in respect of the business of the assessee as he was not carrying on the business of standing surety for other persons nor was he a money-lender, he being simply a timber merchant; that it had not been established nor was it alleged that he was in the habit of standing surety for other persons “along with them for purposes of securing loans for their use and benefit” and even if money (1) [1956] INSC 37; [1956] S. (2) which he followed were right, and that this appeal should be dismissed with costs. 1992 along with Statement of Reasons assigned by the appellant-Company in justification of the same which is appended to the retrenchment notice. The Bombay High Court allowed the withdrawal of the Admiralty Suits pending before it and continued the arrest of the vessel till 3. and the cost payable by the respondent was re-fixed at Rs. e. 200. Nusserwanji Rattanji Mistri and others[1955] INSC 8; , [1955] 1 S. 7, examined this sample and reported, on the basis of its saponification value to be 173. but free and discharged from all payment of land revenue, land tax and all and every tax or imposition in the nature of -revenue derivable from land payable to Government. ( NRI Legal Services Vancouver – What to deal with property concerning issues in succession problems without coming to India by LexLords ) of s.

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Academic qualifications: 7. 290, 296. Keeping the above points in mind, we are of the opinion that in the present case the prosecution has failed to discharge its initial burden itself. T. Illustration (a) given under the provision is worth reproducing in this context: “The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant. (1) [1953] INSC 14; [1953] S. This bunch of appeals raises question of substantial importance, whether the order of conversion of land passed by the Tahsildar under Kerala Land Tax Act would circumvent the provisions of beneficial legislations such as Kerala Conservation of Paddy and Wetland Act, 2008 and the Kerala Land Utilization Order, 1967? 3. the High Court of East Punjab by any legislature or other. 233 can be interpreted in the light of Explanations added to Arts. Parmanand Katara as Amicus Curiae, he has not appeared.

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Secondly, the two clauses necessarily refer to the corresponding or appropriate situations under the earlier sub-sections. 115 was not opened for three days, which is particularly curious given the Manager in his Complaint/FIR stated that the Deceased had said that they would be staying for one day and only a meagre deposit of Rs. Babul Nath[2], a two Judge Bench has laid down thus: “At the very outset we may mention that in an appeal under Article 136 of the Constitution this Court does not normally reappraise the evidence by itself and go into the question of credibility of the witnesses and the assessment of the evidence by the High Court is accepted by the Supreme Court as final unless, of course, the appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record. Before closing we would like to make some observations. 1. 400. J. It may be more convenient for an Arbitral Tribunal sitting in one country to conduct a hearing in another country – for instance, for the purpose of taking evidence. Gurjit and Surjit were armed with ‘kassis.

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The conduct of the prosecutrix, in this regard, therefore, appears to us to be most natural. 06. Commissioner of Income-tax, Bengal, [1937]5 I. Hanif Quareshi v. The test laid down is not merely permanent incapacity or unfitness for work or breeding but the test is something more than that, a combination of age and unfitness’ Learned Counsel for the petitioners has placed before us an observation contained in a reply made by the Deputy Minister in the course of the debate on the Bill in the Madhya Pradesh Assembly (see Madhya Pradesh Assembly Proceedings, Vol. J. J (Uday Umesh Lalit) New Delhi; February 27, 2015 ———————– [1] 13. ” 17. Postulating the essential ingredients to define what exactly would constitute a hearsay is an arduous task, and since we are only concerned with one of its exceptions, we should forbear entering into the entire arena.

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The appellant before this Court, also preferred review petition No. 107(2) of the Government of India Act, 1935. NRI Legal Services Canada – When to deal with property related legalities in sale of property without coming to India by Simranjeet Law Associates are of opinion that there is no force in any of these contentions. Pattani, hereinafter called the assessee was, by Hazur Order dated December 10, 1937, appointed the Chief Dewan of Bhavnagar State. State of Maharashtra[2]. K. No written complaint was ever made to the panchayat. 588. 24B deals with collection of tax out of the estate of deceased persons; s. 18A sub-ss.

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In Manickam Chettiar’s case (1), in execution of a money decree certain properties belonging to a judgment- debtor were attached and sold and the sale proceeds were received by the court. There was no reason to exclude the civil courts from the expression “any person or authority” in Article 226 of the Constitution. We have enumerated the basic tests and in course of our discussion, we shall delve into certain ancillary issues regard being had to the area of analysis. ” (at page 646) 25. P. This claim was disallowed by the Income Tax Officer and on appeal by Appellate Assistant Commissioner and also by the Income-tax Appellate Tribunal. 311(2) will be given to the public servant after the the authority has satisfied itself by preliminary inquiry that there is a case for taking action. R. No.

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Dadachanji, Rameshwar Nath and P. A. P. C. Staple and Tows, Kota) was justified and if not, to what relief the workers are entitled?” Thus, the Industrial Tribunal was required to go into the question whether or not the retrenchment was justified. 2015 at around 2. 2006. Last but not the least is the fact that the provision for payment of disability pension is a beneficial provision which ought to be interpreted liberally so as to benefit those who have been sent home with a disability at times even before they completed their tenure in the armed forces. Infraction of the law is not a normal incident of business and therefore only such disbursements can be deducted as are really incidental to the business itself. The assessee derived from this land various kinds of income, some being purely agricultural and some, non-agricultural. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J. The income derived from the land was from its use for agricultural purposes, and the first condition is thus satisfied. (2) of s.

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In the said case, the Court held: “7. It used to supply goods from India to the nonresident principal, who on his part, was sending cotton to the respondent and other merchants for sale in India. 26 August 2008, as accused-appellant puts the story is that he took half day’s leave from his school to visit to Wadsa, a nearby village, with his wife and 2 daughters to buy clothes and other things. The Income-Tax Investigation Commission (2). There is conclusive medical evidence that the deceased did not suffer the injuries because of accidental fire. 226 mean that the person or authority to whom a writ is to be issued has to be resident in or located within the territories of the High Court issuing the writ? The relevant words of Art. 1 will have to be classified as ‘reclaimed purayidam’ (dry land) in the Basic Tax Register (for short ‘BTR’) and further issued a direction to the Tahsildar and the Village Officer to effect appropriate correction as per the terms of the direction. ” The respondents had been enrolled as advocates of the Lahore High Court on various dates between 1933 and 1940, and while respondents 2, 4 and 5 had their names on the roll of advocates of the Punjab High Court and were practising as advocates at the time they were appointed as District Judges in 1950 and 1952, respondents 3 and 6 did not have their names factually on the roll when they were appointed as District judges in 1957 and 1958. those who have or who on or before the date of election of the members of the Bar Council of the High Court will have, for not less than 10 years, been entitled as of right to practise in the High Court; 885 (b). True it is, it has its own room, but, in all circumstances, it cannot be allowed to occupy the whole accommodation.

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On February 12, 1958, reexpressed his opinion that no witness need. 2001 and brought him to the Police Station, where he was interrogated. This Court did not accept the reasoning ascribed by the High Court in accepting the explanation as same was fundamentally erroneous. Mathur, for the appellant (in Cr. In the result the appeal was filed without the certified copy of the decree and only with the certified copy of the judgment and the bill of costs. , before whom this application was taken out for orders, directed that it may be heard by the Bench which would hear the appeal. Learned counsel for the assessee has elaborately taken us through the judgment of the High Court to contend that the evidence on record has been re- appreciated with a view to ascertain if the conclusions recorded by the Tribunal are correct. Insofar as practicable, the parties shall continue to implement the terms of this contract notwithstanding the initiation of arbitral proceedings and any pending claim or dispute. 11.

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Coming now to the case in hand, we find that the prosecutrix, in her sworn testimony, in clear terms has said that she did not give her consent for commission of the act to the appellant and that he committed the act of sexual violence on her against her will. Both Courts below have rightly recognised the issuance of the notice as a graft-inducing ploy, designed to browbeat the Complainant into paying bribes to the Accused-Officers for their recalling/ rescinding the demand notice in return. Commissioner of Income- tax On the other hand, there is a decision of the Calcutta High Court reported in Hoosen Kassam Dada v. 627 confined to a refusal to grant a certificate as in the Bihar Act, but the right is given to any person aggrieved by the order of the competent authority. So far as s. Now the Central Act only applies to essential commodities as defined in it. He moved the foreign court as soon as he became aware (prior to the efforts made by this court) that no amicable solution was possible with regard to the custody of the children. Puran & ors. Ct.

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1998 at police station CBI/SPE/ACU(I) District New Delhi. The provisions of r. These special features were that they were on the same terms and conditions of service as were enjoyed by the employees of the Scindias in the matter of remuneration, leave, bonus, etc. 1 S. Immediately thereafter, he took out one open knife and stabbed Khanna on his chest twice. The averment is as follows: “Further the contention of the petitioners that the disabled persons are not being retained in service is absolutely wrong because the persons disabled due to militant action etc. Penal Code was found insufficient to eradicate or even to control the growing evil of bribery and corruption corroding the public service of our country. M. In the absence of any such phraseology in s. 44, it is declared that the partners or members of the association shall be jointly and severally liable to assessment, it is only intended to declare the liability to computation of income under s.

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18,501-10-0 decreed against him in a cross suit filed by the appellant company. Union of India [1996] INSC 230; [1996 (3) SCC 117], Babu Singh Bains v. Mohan Rao (supra) and the decisions rendered by the three-Judge Bench. The long title as well as the preamble indicate that the Act was passed to put down the said social evil i. Clause 6 deals with other benefits which I have already referred to. 66(1) of the Income-tax Act. 486. ,. 206.

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R. On the finding that there was a well establised Commercial practice of financing business by borrowing money on joint and several liability and by so doing the respondent could borrow at a lower rate of interest, and that there was mutuality between the borrowers for standing surety for each other for loans taken for business purposes, the respondent assessee in computing his business profits was entitled to deduct the loss suffered by him in paying the sum not paid by his co-borrower. C. ” Warrington L. 07. The said applications were filed by Joplin with assertions that it is “the lawful owner of the M. Further, clause 7 of the said provisional allotment letter provides if the above said plot cost is not made within 90 days of receipt of the allotment letter the allotment of plot shall stand cancelled and the EMD paid shall remain forfeited by the Corporation. The Medical Board assessed the composite disability of the respondent to be 60%. R. The consignment of oil was from the manufacturing firm, appellant no. 7,728-13-8, nor of the assessability of the lands to land revenue. 16 does not apply to offices where the law recognises a right based on descent.

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NRI Legal Services +919876616815 – NRI Legal Services Options by LexLords Returning from his NRI Legal Services by means of South India in the happiest state of mind, NRI Lawyer carried out an intention he experienced extended experienced of checking out his buddy NRI Lawyer , whom he experienced not observed for two many years. NRI Lawyers lay in a flat uninteresting element of the country between fields and forests of fir and birch, which ended up partly reduce down. The house lay behind a newly dug pond crammed with h2o to the brink and with banking companies still bare of grass. It was at the stop of a village that stretched along the highroad in the midst of a youthful copse in which have been a few fir trees.The homestead consisted of a threshing flooring, outhouses, stables, a bathhouse, a lodge, and a large brick home with semicircular façade nevertheless in system of development. Spherical the home was a backyard garden recently laid out. The fences and gates were new and sound two fire pumps and a h2o cart, painted eco-friendly, stood in a lose the paths were straight, the bridges were strong and had handrails. Almost everything bore an impress of tidiness and great management. Some domestic serfs NRI Lawyer fulfilled, in reply to inquiries as to the place the NRI Legal Services lived, pointed out a small newly created lodge close to the pond. NRI Lawyers , a male who had looked following NRI Legal Services in his boyhood, helped NRI Lawyer out of his carriage, stated that the NRI Legal Services was at property, and confirmed him into a cleanse little NRI Lawyer was struck by the modesty of the modest although clean home soon after the excellent surroundings in which he had last achieved his buddy in Chandigarh.He rapidly entered the tiny reception place with its nonetheless-unplastered wooden partitions redolent of pine, and would have absent farther, but NRI Lawyers ran in advance on tiptoe and knocked at a doorway.Properly, what is it? came a sharp, disagreeable voice.A visitor, answered NRI Lawyers .Ask him to hold out, and the sound was heard of a chair getting pushed back. NRI Lawyer went with fast measures to the door and out of the blue came experience to face with NRI Legal Services , who came out frowning and seeking aged. NRI Lawyer embraced him and lifting his spectacles kissed his pal on the cheek and looked at him intently.Properly, I did not expect you, I am really glad, said NRI Legal Services . NRI Lawyer stated nothing at all he looked fixedly at his friend with shock. He was struck by the change in hello His phrases were kindly and there was a smile on his lips and experience, but his eyes were uninteresting and lifeless and in spite of his evident desire to do so he could not give them a joyous and happy sparkle. NRI Legal Services experienced grown thinner, NRIr, and much more manly-looking, but what surprised and estranged NRI Lawyer until he got used to it had been his inertia and a wrinkle on his brow indicating prolonged concentration on some one considered. The main point for decision in this appeal by the Municipal Committee of Dhamtari and its President was, whether in appointing an Executive Officer in exercise of its powers under s. 53A of the C. P. and Berar Municipalities Act, 1922, the State Government acted in a judicial capacity or in an administrative one Complaints having been made against the appellants, the additional Deputy Collector was directed to hold an enquiry and on his report the State Government, by a notification under that section, appointed an Executive Officer of the Municipal Committee for 18 months with specified powers and duties. The appellants were given notice of the said enquiry, filed objections 1441 and the President was personally present on some occasions during the enquiry. The notification charged the appellants with incompetency as well as abuse of power. Against that notification the appellants moved the High Court under Art. 226, of the Constitution for a writ of certiorari quashing the same, but their application was rejected by the judge sitting singly. An appeal under the Letters Patent against his decision was summarily dismissed. It was contended before this Court on behalf of the appellants that, (1) although the notification purported to be one under s. 53A of the Act, it was in effect and reality one under s. 57 Of the Act, that (2) it was, therefore, incumbent on the Government under s. 57(5) of the Act to afford the appellants an opportunity to furnish explanation and that (3) even if the notification was one under s. 53A of the Act, the Government was bound by the rules of natural justice to give the appellants an opportunity to defend themselves. Held (per curiam), that ss. 53A and 57 of the C. P. and Berar Municipalities Act, 1922, differed materially in their scope and effect, but it was not obligatory under either of them for the Government to take any action at all. Although a finding of incompetency of the Municipal Committee was a condition precedent to action under both the sections, the Government was free to choose its remedy as the occasion demanded and it could not be contended that because a notification made under s. 53A of the Act, along with a finding of incompetency, contained some instances of abuse of power as well, it must be held to have been made under S. 57 of the Act. Nor could the vesting of power in the Executive Officer by the notification, however substantial in character, be said, in effect and reality, to amount to a dissolution of the Municipal Committee under S. 57 Of the Act. Per Das C. T. and Kapur J.–The real test whether the State Government functioned in a quasi-judicial capacity or in an administrative capacity in exercising its powers under S. 53A of the Act was whether the statute required it to act judicially either expressly or by implication. The Act contained no express provision to that effect, nor could the determination of the fact of incompetency-as a condition precedent to any action under that section, by itself, carry such an implication. In making the notification under S. 53A of the Act, therefore, the Government functioned in an administrative capacity and not in a quasi-judicial one. Even so, by the enquiry held, the State Government afforded the appellants ample opportunity to defend themselves and there could hardly be any ground for complaint. Province Of Bombay v. Kusaldas S. Advani, [1950] S.C.R. 621, Rex v. Electricity Commissioners, [1924] 1 K.B. 171, Rex v. London County Council, [1913] 2 K. B. 215, R. v. Legislative Committee Of the Church Assembly, (1928) 1 K.B. 411 and Nakkuda Ali’s Case, 1951) A.C. 66, referred to. 1442 Per Bhagwati J.-Since the enquiry held in this case fully satisfied the requirements of natural justice, it was unnecessary to determine for the purpose of this case whether the State r Government in acting under s. 53A of the Act did so in a quasi-judicial capacity or in an administrative one. Per S. K. Das J.-If the question was one of compliance with the rules of natural justice, the enquiry held in the present case could hardly be said to have complied with such rules; but since the State Government in acting under s. 53A of the Act had only to consider policy and expediency and did at no stage have any form of lis before it, its action thereunder was purley of an administrative character not amenable to a writ of certiorari. R.v. Manchester Legal Aid Committee, (1952) 2 Q. B. 413, applied. Per Subba Rao J.-On a proper appreciation of the criteria laid down by s. 53A of the Act itself, there could be no doubt that it imposed a duty on the State Government to act judicially in ascertaining the fact of the incompetency of the Municipal Committee to perform its duties. It is clear that the determination of such a jurisdictional fact could not have been left to the subjective satisfaction of the Government but was intended to be arrived at objectively and, therefore, it was incumbent upon the Government to give a reasonable opportunity to the appellants to explain the charge levelled against them. Such enquiry as was held in the instant case could hardly take the place of reasonable opportunity to be given by the Government for the proposed action under s. 53A of the Act. Rex v. The Electricity Commissioners, (1924) i K. B. 171, Province of Bombay v. Kusaldas S. Advani, [1950] INSC 22; [1950] S.C.R. 621 and R. v. Manchester Legal Aid Committee, (1952) 2 Q.B. 413, referred to. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 301 of 1958. Appeal by special leave from the judgment and order dated February 21, 1958, of the Madhya Pradesh High Court at Jabalpur in Letters Patent Appeal No. 22 of 1958, against the order dated February 20, 1958, of the said High Court in Misc. Petition No. 266 of 1957. M.K. Nambiyar, S. N. Andley, J. B. Dadachanji and Rameshwar Nath, for the appellants. M. Adhikari, Advocate-General, Madhya Pradesh and 1. N. Shroff, for the respondents. 1443 1958. September 30. The following Judgments were delivered: DAS C.J.-There are two appellants in this appeal. The second appellant is the Municipal Committee of Dhamtari constituted under the C. P. and Berar Municipalities Act, 1922 (Act 11 of 1922) and the first appellant is its President having been elected as such on July 10, 1956. He assumed charge of his office as President on July 27, 1956. It may be mentioned that he was returned as a Congress candidate but has since been expelled from that party for having contested the last general election as an independent candidate against the Congress candidate. It appears that there are two factions in the Municipal Committee. The first appellant alleges that one Dhurmal Daga, a member of the committee belonging to the Congress party was on August 7, 1956, deflected importing within the municipal limits certain cloth without paying the octroi duty. Dhurmal Daga, on the other hand, alleged that the first appellant was guilty of grave mismanagement of the affairs of the Municipal Committee and went on hunger strike for securing the appointment of a committee to enquire into the misconduct of the first appellant. Copies of the leaflets containing the demands and charges which are said to have been widely distributed are annexures I and 11 to the present petition. It appears that several persons and firms also preferred charges against the first appellant, the President of the Municipal Committee. The Collector, Raipur, personally intervened and persuaded the said Dhurmal Daga to abandon the fast on an assurance that he would look into the matter. The Collector deputed one Shri N. R. Rana the Additional Deputy Collector to enquire into the complaints of maladministration of the affairs of the Municipal Committee. By a Memorandum No. K/J N. P. Dhamtari dated August 24, 1956, the said N. R. Rana called upon the first appellant as tile President of the second appellant to give detailed explanation of each complaint, a list of which was enclosed therewith. A copy of that memorandum along with its 22 enclosures 1444 is annexed to the petition and marked 111. Annexures IV and V to the petition are copies of the detailed report on the objections and the reply to the charges made against the Municipal Committee submitted from the office of the Municipal Committee by the first appellant as the President of the Municipal Committee. The Additional Deputy Collector thereafter held the enquiry. The High Court states that it had ” gone through the materials on which the State Government based its action on enquiry into the charges levelled against the Municipal Committee and that the records of the enquiry showed thaton some occasions the petitioner was present duringthe enquiry “. Thereis no suggestion that the appellants wanted an opportunity to adduce any evidence or were prevented from doing so or that they were in any way hampered in their defence. Presumably the Additional Deputy Collector had made a report which in due course must have been forwarded to the State Government. On November 18, 1957, a notification was published in the Official Gazette whereby the State Government, in exercise of the powers conferred on it by s. 53-A of the C. P. & Berar Municipalities Act, 1922, appointed one Shri B. P. Jain, the second respondent before us, as the Executive Officer of the Municipal Committee, Dhamtari, for a period of 18 months with certain powers as therein mentioned. A copy of that notification has been annexed to the petition and marked VIII but as the major part of the arguments can- vassed before us turns on the contents of that notification the same is reproduced below in extenso: ” Dated, Bhopal, the 18th November, 1957, No. 9262/11538-U- XVIII-Whereas it appears to the State Government that the Municipal Committee, Dhamtari, has proved itself incompetent to perform the duties imposed on it by or under the Central Provinces and Berar Municipalities Act, 1922 (11 of 1922), inasmuch as it- (a)granted grain and building advances to the employees without prior sanction and no efforts were made for their recovery, (b) showed carelessness in cases of embezzlement 1445 of the employees and did not report such cases to Government, (c)failed to control the President who issued orders in cases in which he had no authority (d)spent thousands of rupees on sanitation and other works although there was no provision in the budget, (e)allowed unconcerned persons to interfere in its working, (f)showed partiality in the appointments and dismissals of the employees, further such appointments and dismissals were made against rules, (g)delayed the constitution of the committee and the framing of budget, (h) misused the trucks of the municipality, (i) failed to recover the lease money, (j) shown partiality in the issue of transit passes to certain traders, further excess octroi duty was charged on certain articles and in certain cases where octroi duty is not leviable it was levied just to harass the people, (k)distributed municipal manure to certain persons without any charge, similarly distributed the manure free of cost and used the truck of the municipality for this purpose, (1)failed to control its president who spent the money of the Municipal Committee without any authority, (m)spent huge amount on the maintenance of the roads and drainage but their condition has remained unsatisfactory, (n)failed to give. copies of the documents as allowed under rules, also failed to allow its members to inspect the records as is permissible under rules, (o)failed to invite tenders of purchase of articles, and whereas, the State Government considers that a general improvement in the administration of the Municipality is likely to be secured by the appointment of a servant of the Government as Executive Officer of the Committee. Now, therefore, in exercise of the powers conferred by section 53-A of the Central Provinces and Berar 1446 Municipalities Act, 1922 (11 of 1922), the State Government are pleased to appoint Shri B. P. Jain, Deputy Collector, as executive Officer of the Municipal Committee, Dhamtari, for a period of eighteen months from the date of his taking overcharge and with reference to sub-section (3) thereof are further pleased to direct that the Executive Officer shall exercise and perform the following powers and duties of the Committee to the exclusion of the Committee, President, Vice-President or Secretary, under the provisions of the Central Provinces and Berar Municipalities Act, 1922 (11 of 1922), namely:- Chapter 111. Appointment of Officers and servants-Sections 25, 26 and 28. Chapter IV. Procedure in Committee meeting Section 31. Chapter V. Property, contract and liabilities Sections 37 to 45. Chapter VI. Duties of Committee-Sections 50 and 51. Chapter VIII. The municipal fund-whole. Chapter IX. Imposition, assessment and collection of taxes- whole. Chapter X. Municipal Budgets and accounts whole. Chapter XI. Powers to regulate streets and buildings- Sections 90 to 94, 96, 98, 99, 103 and 104. Chapter XII. Powers to prevent disease and public nuisance- Sections 117, 118(1), 119 and 132. Chapter XVIII. Offences, practice and procedure-Sections 218-223. Chapter XIX. Special provisions for recovery of taxes- whole. The Executive officer shall exercise general supervising powers in respect of all matters covered by the Central Provinces and Berar Municipalities Act, 1922 (11 of 1922). In Hindi (By order of the Governor of Madhya Pradesh) S. S. Joshi, Deputy Secretary.” 1447 On December 21, 1957, the two appellants before us presented before the Madhya Pradesh High Court the writ petition out of which the present appeal has arisen and on January 11, 1958, obtained an order staying the operation of the order of appointment of the Executive Officer. The writ petition was dismissed on February 20, 1958. There was a Letters Patent Appeal which was dismissed in limine on February 21, 1958. The application for -certificate under Arts. 132 and 133 was refused on March 21, 1958. The present appellants applied for and on April 1, 1958, obtained from this Court special leave to appeal from the judgment of the Madhya Pradesh High Court. The interim stay order made by this Court was eventually vacated on May 13, 1958. The appeal has now come up before us for final disposal. Shri M. K. Nambiar, appearing in support of this appeal, urged three points, namely (i)that though the Notification purports to have been made in exercise of the power,,; conferred on the State Government by s. 53-A, in substance and in reality it has been made under s. 57 of the Act; (ii)that if the Notification is held to be one made under s. 57 it is ultra vires and bad since the statutory requirements of affording reasonable opportunity to explain has not been complied with; (iii)that even if the impugned Notification be held to come within s. 53-A it is still ultra vires since before promulgating it the State Government has committed a breach of the rules of natural justice in not giving any opportunity to the appellants to defend themselves. There was a charge of mala fide made against the State Government founded on the fact that the first appellant’s leaving the Congress party had resulted in ill-will towards the first appellant of that -party which was the ruling party in the State Government, but as that charge has not been pressed before us nothing further need be said about it. I now proceed to deal with the three points formulated above by learned counsel for the appellants. 184 1448 Re. (i) and (ii): These two points are correlated and may be conveniedtly dealt with together. The argument in support of them is developed in two ways. In the first place it is said that the grounds set forth in the impugned notification clearly indicate that in substance and in reality it has been issued rather under s. 57 of the Act than under s. 53- A. In order to appreciate this argument it is necessary to set out the two sections of the C. P. and Berar Municipalities Act, 1922 in extenso: ” 53-A. (1) If a committee is not competent to perform the duties imposed on it or undertaken by it by or under this Act or any other enactment for the time being in force and the State Government considers that a general improvement in the administration of the municipality is likely to be secured by the appointment of a servant of the Government as the executive officer of the committee, the State Government may, by an order stating the reasons therefor published in the Gazette, appoint such servant as the executive officer of the committee for such period not exceeding eighteen months as may be specified in such order. (2)Any executive officer appointed under subsection (1) shall be deemed to be an officer lent to the committee by Government under sub-section (3) of section 25. (3)When under subsection (1) an executive officer is appointed for any committee, the State Government shall determine from time to time which powers, duties and functions of the committee, president, vice-president or secretary under this Act or any rule or byelaw made thereunder shall be exercised and performed by such officer, in addition to, or to the exclusion of, their exercise and performance by the said committee, president, vice-president or secretary. (4) The secretary of the committee shall be subordinate to the executive officer. (5) The executive officer shall have the right to attend all meetings of the committee and any joint committee or sub-committee and to take part in the discussion so as to make an explanation in regard to 1449 the subject under discusion, but shall not move, second, or vote on any resolution or other motion. ” ” 57. (1) If a committee is not competent to perform, or persistently makes default in the performance of, the duties imposed on it or undertaken by it under this Act or any other enactment for the time being in force, or exceeds or abuses its powers to a grave extent, the State Government may, by an order stating the reasons therefor published in the Official Gazette, dissolve such committee and may order a fresh election to take place. (2)If after fresh election the new committee continues to be incompetent to perform, or to make default in the performance of, such duties or exceeds or abuses its powers to a grave extent, the State Government may, by an order stating the reasons therefor published in the Official Gazette, declare the committee to be incompetent or in default, or to have exceeded or abused its powers, as the case may be, and supersede it for a period to be specified in the order. (3)If a committee is so dissolved or superseded, the following consequences shall ensue : (a)all members of the committee shall, as from the date of the order, vacate their offices as such members; (b)all powers and duties of the committee may, until the committee is reconstituted, be exercised and performed by such person or persons as the State (Government may appoint in that behalf; (c) all property vested in it shall until the commitee is reconstituted vest in the State Government. (4)On the expiration of the period of supersession specified in the order, the committee shall be reconsti- tuted, and the persons who vacated their offices under sub- section (3), clause (a), shall not, by reason solely of such supersession be deemed disqualified for being members. (5) No order under sub-section (1) or subsection (2) shall be passed until reasonable opportunity has been given to the committee to furnish an explanation. (6) Any person or persons appointed by the State 1450 Government to exercise and perform the powers and duties of a dissolved or superseded committee may receive payment, if the State Government so directs, for his or their services from the municipal fund.” Learned counsel for the appellants points out that action may be taken under s. 53-A ” if a committee is not competent to perform the duties imposed on it . and the State Government considers that a general improvement in the administration of the municipality is likely to be secured Whereas under s. 57 action can be taken not only ” if a committee is not competent to perform or persistently makes default in the performance of the duties imposed on it or but also if the committee exceeds or abuses its powers to a grave extent It is pointed out that in case of incompetency action can be taken either under s. 53-A or s. 57 but in case of abuse of power action can be taken only under s. 57. Reference is then made to the grounds enumerated in the notification itself and it is argued that except perhaps grounds a, b, c and g which may be indicative of incompetency, the other grounds, which are, by far, greater in number, obviously constitute abuse of powers and from this circumstance the conclusion is sought to be drawn that in substance and in reality the impugned notification must have been made under s. 57 and that that being so the notification cannot be sustained because of the non-compliance with the provisions of sub-s. (5) of s. 57 which expressly lay down that no order tinder sub-s. (1) or (2) shall be passed until reasonable opportunity has been given to the committee to furnish an explanation. I am not persuaded to uphold this argument. In the first place it has to be remembered that, the sections under consideration only confer certain powers on the State Government but that the latter is not bound to take any action under either of them. In the next place it should be noted that the two sections differ materially in their scope and effect. Under s. 53-A the State Government may only appoint a servant of the Government as the Executive Officer of the committee and may determine, from time to time, 1451 which powers and duties and functions of the committee, its president, vice-president or secretary shall be exercised and performed by such officer and indicate whether they should be exercised and performed in addition to, or to the exclusion of, their exercise and performance by the said committee, president, vice-president or secretary. The wording of s. 53-A makes it quite clear that the action that may be taken thereunder is to be effective for a temporary duration not exceeding 18 months and the purpose of taking such action is to ensure the proper performance and discharge of only certain powers, duties and functions under the Act. The section does not, in terms, affect, either legally or factually, the existence of the committee, its president, vice president or the secretary. Section 57, however, authorises the State Government, in the circumstances mentioned in the opening part of that section, to dissolve the committee itself and order a fresh election to take place so that the committee as a legal entity ceases to exist and all the sitting members of the committee become functi officio. If after such fresh election the same situation prevails, then that section further authorises the State Government to declare the committee to be incompetent or in default or to have exceeded or abused its power as the case may be and to supersede it for such period (not limited by the section) as may be specified in the order. The effect of an order made under s. 57 is, therefore, extremely drastic and puts an end to the very existence of the committee itself and, in view of the grave nature of the consequences that will ensue, the legislature presumably thought that some protection should be given to the committee before such a drastic action was taken and accordingly it provided, by sub-s. (5) of that section, that no order should be passed until reasonable opportunity had been given to the committee to furnish an explanation a provision which clearly indicates that action under s. 57 can only be taken after bearing and considering all the explanations furnished by or on behalf of the committee. The legislature did not think fit to provide a similar safeguard in s. 53A presumably because 1452 the order under the last mentioned section was of a temporary duration, was not very drastic and did not threaten the very existence of the committee. A cursory reading of the two sections will also indicate that the conditions precedent to the exercise of the powers under both sections overlap to some extent, namely, that action can be taken under both if the committee “is not competent to perform the duties imposed on it. To the extent that the requirements of the two sections overlap the State Government has the option of taking steps under one section or the other according to its own assessment of the exigencies of the situation. The position, therefore, is that if a committee is not competent to perform the duties imposed on it the State Government has to make up its mind as to whether it should take any action all and, if it thinks that action should be taken, then it has further to decide for itself as to which of the two sections it would act under. If the State Government considers that the incompetency does not run to a grave extent and the exigencies of the situation may be adequately met by appointing an Executive Officer for a short period not exceeding 18 months with certain powers to be exercised by him, either in addition to or in exclusion of their exercise by the committee, the president, vice-president or the secretary, the State Government may properly take action under s. 53-A. On the other hand if the State Government considers, having regard to all the circumstances of the case, that the incompetency is much too grave to permit the committee, its president, vice-president or the secretary to function at all, it may take action under s. 57 and dissolve the committee and direct fresh election to take place. In other words incompetency on the part of the committee gives to the State Government an option to apply one of two reme- dies under the Act, if, that is to say, it considers it necessary to take action at all. What, then, is the position here ? Certain charges had been made in writing against the committee and its president which were forwarded to the president with a request to submit explanations in detail. The 1453 president, acting in his official capacity, gave detailed explanations in writing and sent the same officially from the office of the municipal committee to the Additional Deputy Collector who was deputed by the Collector to hold the enquiry. The Additional Deputy Collector held the enquiry during which the president appeared in person on several days and came to certain findings and presumably made his report which in due course must have reached the ;State Government. The State Government apparently accepted such of those findings as have been set out in the notification it-self Even according to learned counsel for the appellants some of those findings amount only to incompetency and the rest, he contends, amount to abuse of power. I need not pause to Consider whether the abuse of power thus found was of a grave nature so as to fall within s. 57 as such or was of a minor character so as to be evidence of mere incompetency Taking the position to be as contended by learned counsel for the appellants the position was that, as a result of the enquiry, the State Government found two things against, the appellant committee, namely, (i) that it was guilty of incompetency and (ii) that it was also guilty of certain abuses of power. I have already stated that the State Government was not obliged to take any action at all either under s. 53-A or under s. 57. If the State Government considered that it was necessary to take action, it was entirely for the State Government to consider whether it would take action for incompetency or for abuse of power. In the present case the State Government might have thought that the abuse of power so found was not of a very grave nature but evidenced only incompetency. Surely a committee which abused its power might also have been reasonably regarded as incompetent to perform the duties imposed on it That apart, supposing the committee was guilty of incompetency as well as of some abuses, what was there to prevent the State Government, as a matter of policy, to take action for incompetency under s. 53-A ? The mere inclusion of the findings of abuse of power in the catalogue of the Committee’s 1454 misdeeds does not obliterate the findings on incompetency. I see nothing wrong in the State Government telling the committee: ” You have been guilty of incompetency as well as of abuse of power; but I shall not, just at this moment, take drastic action of’ dissolving you outright, but shall be content to take action and appoint an Executive officer for 18 months and confer some power on him under s. 53-A”. In my judgment the State Government was well within its tights, in exercise of its option, to take action, under s. 53-A as it has in terms purported to do. To say that because some of the findings amount to abuse of power the State Government must act under s. 57 is to deprive it of its discretion which the Act undoubtedly confers on it. In my view the fact that the impugned notification records, apart from the findings of incompetency, certain findings of abuse of power, does not lead to the conclusion, as contended for the appellants, that the State Government had taken action under s. 57 and not under s. 53-A although, in terms, it says it acted under the last mentioned section. Learned counsel for the appellants in support of his contention that the impugned notification was really made under s. 57 of the Act, refers us to the, powers and duties conferred on the executive Officer thereby appointed to be exercised and performed by him to the exclusion of the committee, its president, vicepresident, or the secretary. His argument is that although the municipal committee is not ostensibly dissolved, it is in effect and in reality so dissolved, for the substance of the powers of the committee, its president, vice-president or the secretary has been taken away from them leaving only a semblance of power which is nothing but mere husk and the conclusion urged by learned counsel is that the impugned notification must be regarded as having been made under s. 57. In the first place, s. 57 does not contemplate the appointment of any executive Officer or the conferment of any power on him, while such appointment and conferment of power is directly contemplated by s. 53-A. In the second place the legal 1455 existence of the municipal committee and the status of its members and its president, vice-president or the secretary have not been impaired at all. In the eye of the law the municipal committee still exists and along with it the members of the committee, the president, vice-president and the secretary still hold their respective offices. These features clearly militate against the suggestion that action has been taken under s. 57. Learned counsel says that we must look beyond mere form and get to the substance of the matter. There can be no doubt that most of the important powers have been taken away from the committee, its president, vice-president and the secretary, but that may well be due to the degree of gravity of the incompetency found or inferred from the other findings. Further, a cursory perusal of the Act and of the notification will show that various other powers and duties have not been taken away from the committee or conferred on the Executive Officer. Thus the powers of the committee under ss. 128, 130, 131, 133 to 141 and 144, 145 arid 147 to 149 are still vested in and are exercisable by the committee. Likewise the powers under ss. 120, 121, 122, 123 to 127, 129, 150, 152 to 160 to 162, 163, 163A and 168 are still vested in and exercisable by the president. These powers that are still left with the committee or the president can hardly or with propriety be described as mere husks. It should not be overlooked that the suggestion that the real power has been taken away leaving only a semblance of it, is really ail argument in aid of a charge of mala fides, but, as here-in- before stated, the charge of mala fides or fraud on the part of the State Government has not been persisted in or pressed before us. In my judgment, therefore, there is no warrant for contending that the impugned notification, judged by its eftect, must be regarded as having been made under s. 57 of the Act. In this view of the matter the argument of invalidity of the action founded on non-compliance with the requirements of sub-s. (5) of s. 57 does not arise for consideration at all. I85 1456 Re. (iii): In the writ application, out of which this appeal arises, the principal prayer of the appellants is for a writ in the nature of certiorari for quashing the order passed by the State Government on November 18, 1957. Tile next prayer which is for a writ of mandamus restraining the respondents from giving effect to the impugned order is clearly conse- quential on or ancillary to the main prayer. The last prayer is in the nature of the usual prayer for further or other reliefs. Therefore the present petition is essentially one for the issue of a writ of certiorari. The writ of certiorari is a well-known ancient high prerogative writ that used to be issued by the Courts of the King’s Bench to correct the errors of the inferior Courts strictly so called. Gradually the scope of these writs came to be enlarged so as to enable the Superior Courts to exercise control over various bodies which were not, strictly speaking, Courts at all but which were, by statute, vested with powers and duties that resembles those that were vested in the ordinary inferior Courts. The law is now well- settled that a writ of certiorari will lie to control such a statutory body if it purports to act without jurisdiction or in excess of it or in violation of the principles of natural justice, or commits any error apparent on the face of the records, provided that, on a true construction of the statute creating such body, it can be said to be a quasi- judicial body entrusted with quasi-judicial functions. It is equally “,well-settled that certiorari will not lie to correct the errors of a statutory body which is entrusted with purely administrative functions. It is, therefore, necessary to ascertain the true nature of the functions entrusted to and exercised by the State Government under s. 53-A of the Act. In Province of Bombay v. Kusaldas S. Advani this Court has discussed at considerable length the nature of the two kinds of act, judicial and administrative, and has laid down certain tests for ascertaining whether the act of a statutory body is a quasijudicial actor an administrative act. It will, therefore, (1) [1950] INSC 22; [1950] S.C.R, 621. 1457 suffice to refer to the celebrated definition of a quasi- judicial body given by Atkin L. J. as he then was, in Rex v. Electricity Commissioners and which now holds the field. It runs as follows ” Whenever any body of persons having legal authority to determine questions affecting rights of subjects, and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Beneh -Division exercised in these writs.” This definition was accepted as correct in Rex v. London Count?/ Council (2 ) and many subsequent cases both in England and in this country. It will be noticed that this definition insists on three requisites each of which must be fulfilled in order that the act of the body may be said to be quasi-judicial act, namely, that the body of persons (1) must have legal authority, (2) to determine questions affecting the rights of parties, and (3) must have the duty to act judicially. Since a writ of certiorari can be issued only to correct the errors of a court or a quasi-judicial body, it would follow that the real and determining test for ascertaining whether an act authorised by a statute is a quasi-judicial act or an administrative act is whether the statute has expressly or impliedly imposed upon the statutory body the duty to act judicially as required by the third condition in the definition given by Atkin L. J. Therefore in considering whether in taking action under s. 53-A the State Government is to be regarded as functioning as a quasi-judicial body or a mere administrative body it has to be ascertained whether the statute has expressly or impliedly imposed upon the State Government a duty to act judicially. Relying on paragraphs 114 and 115 of Halsbury’s Laws of England, 3rd Edition, Volume 11, at pages 5558 and citing the case of R. v. Manchester Legal Aid Committee (1), learned counsel for the appellants contends that where a statute requires a decision to be arrived at purely from the point of view of policy or (1) [1924] 1 K.B. 171. (3) [1952] 2 (2) [1931] 2 K.B. 215. 413. 1458 expediency the authority is under no duty to act judicially. He urges that where, on the other hand, the order has to be passed on evidence either under an express provision of the statute or by implication and determination of particular facts on which its jurisdiction to exercise its power depends or if there is a proposal and an opposition the authority is under a duty to act judicially. As stated in paragraph 115 of Halsbury’s Laws of England, Volume 1 1, at page 57, the duty to act judicially may arise in widely differing circumstances which it would be impossible to attempt to define exbaustively. The question whether or not there is a duty to act judicially must be decided in each case in the light of the circumstances of the particular case and the construction of the particular statute with the assistance of the general principles laid down in the judicial decisions. The principles deducible from the various judicial decisions considered by this Court in the Province of Bombay v. K. S. Advani (1) at page 725 were thus formulated, namely: ” (i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasijudicial act; and (ii)that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially.” It is clear that in the present case there is no question of any contest between two contending parties which the State Government is, under s. 53-A, to decide and, (1)[1950] S.C.R. 621. 1459 therefore, there is no ” lis ” in the sense in which that word is understood generally, and the principle referred to under the first heading has no application. We have, therefore, to consider whether the case comes within the principle enunciated under the second head, namely, whether the C. P. and Berar Municipalities Act, 1922, requires the State Government to act judicially when taking action under s. 53-A. Learned counsel for the appellant draws our attention to the language in which s. 53-A is couched. He concedes that the ultimate order under that section is purely discretionary, that is to say the State Government is not obliged to take any action tinder the section. It may make an order Tender the section or it may not according as it thinks fit. But in case the State Government chooses to act under the section, it can only do so if the conditions therein laid down are fulfilled. A cursory reading of s. 53-A will show that there are two prerequisites to be satisfied before the State Government can take action under s. 53-A, namely, (1) that the municipal committee is not competent to perform the duties imposed on it and (2) that the State Government considers that a general improvement in the administration of the municipality is likely to be secured by the appointment of a servant of the Government as the Executive Officer of the committee. When both these conditions are fulfilled, then and then only may the State Government take action and make an order under s. 53-A. Of the two conditions the second one, by the very language in which it is expressed, is left entirely a matter for the State Government to consider, for it depends entirely on the view of its own duty and responsibility that the State Government may take on a consideration of the situation arising before it. In other words, the statute has left that matter to the subjective determination of the State Government. The first requisite, however, is an objective fact, namely, whether the committee is or is not competent to perform the duties imposed on it. The determination of that fact, it is pointed out, has not been left to the subjective determination by 1460 the State Government. Learned counsel for the appellants urges that if it were intended to leave the determination of this fact of incompetency also to the subjective opinion of the State Government, the section would have been framed otherwise. It would have said something like this: ” If the State Government considers that a committee is not competent to perform the duties and that the general improvement in the administration of the municipalities is likely to be secured by This the Legislature has not done and has, thus, clearly evinced an intention not to leave it to the ipse dixit of State Government. Section 53-A, it is pointed out, differs materially in this respect from s. 3 of the Bombay Land Requisition Ordinance (V of 1947) which was considered by this Court in Kusaldas Advani’s casc (1). That section of the Bombay ordinance opened with the words: ” If in the opinion of the Provincial Government which were taken as indicative of the Legislature’s intention to leave the determination of the existence of all the conditions precedent entirely to the subjective opinion of the Provincial Government so as to make the action a purely administrative one. The argument is that the first requirement is the finding of a fact which may be called a jurisdictional fact, so that the power under s. 53-A can only be exercised when that jurisdictional fact is established to exist. The determination of the existence of that jurisdictional fact, it is contended, is not left to the subjective opinion of the State Government and that although the ultimate act is an administrative one the State Government must at the preliminary stage of determining the jurisdictional fact act judicially and determine it objectively, that is to say, in a quasi-judicialay. It is assumed that whenever there has to be a determination of a fact which affects the rights of the parties, the decision must be a quasijudicial decision, so as to be liable to be corrected by a writ of certiorari. In Advani’s case (1) Kania C. J. with A hom Patanjali Sastri J. agreed, said at page 632 : ” The respondent’s argument that whenever there (1) [1950] INSC 22; [1950] S.C.R. 621. 1461 is a determination of a fact which affects the rights of parties, the decision is quasi-judicial, does not appear to be sound.” Further down the learned Chief Justice said determined by an objective test and when that decision affects rights of someone, the decision or act is quasi- judicial. This last statement overlooks the aspect that every decision of the executive generally is a decision of fact and in most cases affects the rights of someone or the other. Because an executive authority has to determine certain objective facts as a preliminary step in the discharge of an executive function, it does not follow that it must determine those facts judicially. When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character and are not amenable to the writ of certiorari.” To the like effect is the following observation of Fazl Ali J. in the same case at page 642: ” The mere fact that an executive authority has to decide something does not make the decision judicial. It is the manner in which the decision has to be arrived at which makes the difference, and the real test is: Is there any duty to decide judicially ? As I have already said, there is nothing in the Ordinance to show that the Provincial Government has to decide the existence of a public purpose judicially or quasi-judicially.” Dealing with the essential characteristics of a quasi- judicial act as opposed to an administrative act, I said at page 719: features. Thus a person entrusted to do an administrative act has often to determine questions of fact to enable him to exercise his power. He has to consider facts and circumstances and to weigh pros and cons in his mind before he makes up his mind to exercise his power just as a person exercising a judicial or 1462 quasi-judicial function has to do. Both have to act in good faith. – A good and valid administrative or executive act binds the subject and affects his rights or imposes liability on him just as effectively as a quasijudicial act does. The exercise of an administrative or executive act may well be and is frequently made dependent by the Legislature upon a condition or contingency which may involve a question of fact, but the question of fulfilment of which may, nevertheless, be left to the subjective opinion or satisfaction of the executive authority, as was done in the several Ordinances, regulations and enactments considered and construed in the several cases referred to above. The first two items of the definition given by Atkin L. J. may be equally applicable to an administrative act. The real test which distinguishes a quasi-judicial act from an administrative act is the third item in Atkin L. J.’s definition, namely, the duty to act judicially.” I found support for my opinion on the following passage occurring in the judgment of Lord Hewart C. J. in B. v. Legislative Committee of the Church Assembly (1): ” In order that a body may satisfy the required test it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be super-added to that characteristic the further characteristic that the body has the duty to act judicially.” The above passage was quoted with approval by Lord Radcliffe in delivering the judgment of the Privy Council in Nakkuda Ali’s case I now proceed to apply the principles discussed above to the facts of the present case. The simple fact that the incompetency of the committee goes to the root of the jurisdiction of the State Government to exercise its power under s. 53-A does not require that that fact must be determined judicially. The sole question is, does the statute require the State Government to act judicially. There need not be any express provision that the State Government must act judicially. It will be sufficient if this duty may be (1) [1928] 1 K.B. 411, 415. (2) [1951] A.C. 66. 1463 implied from the provisions of the statute. The mere fact that a question of fact has to be determined as a preliminary condition before action can be taken under the statute by itself does not carry that implication. There must be some indication in the statute as to the manner or mode in which the preliminary fact is to be determined. I find nothing in s. 53-A which in terms imposes any duty on the State Government to act judicially. No form of procedure is laid down or even referred to from which such a duty could be inferred. On the contrary, one finds a signi- ficant omission of any provision like that embodied in sub- s. (5) of s. 57 which requires that no order under that section shall be passed until reasonable opportunity has been given to the committee to furnish an explanation. It is also material to note that whereas an order under s. 57 is of a permanent character the one to be made under s. 53-A is to be of a limited duration, i.e., for such period not exceeding IS months as may be specified in such order. Further, s. 53-A contemplates swift action and a judicial hearing may easily frustrate the very purpose contemplated by s. 53-A, for a judicial act will be subject to the powers of superintendence of the superior courts and the operation of the order under s. 53-A may be postponed, as it has been done in this very case, by taking, the matter from court to court until it is set at rest by this Court. In this connection reference may also be made to s. 25-A of the Act which authorises the State Government to require the committee to appoint, inter alia, a Chief Executive Officer. If such committee fails to comply with the requisition within the period specified, the State Government may, under sub-s. (3), if it thinks fit, appoint such officer and fix his pay and allowance. Sub-section (4) authorises the State Government to require the committee to delegate to the officer so appointed such powers, duties and functions of the committee, its president, vice-president or the secretary under this Act or any rule or bye-law made thereunder as may be specified in such requisition and if the committee fails to comply with such requisition within a reasonable time, the State Government 186 1464 may determine the powers, duties and functions which shall be exercised and performed by such officer in addition to or to the exclusion of their exercise or performance by committee, its president, vice-president or secretary. Nobody will say that the State Government must exercise the powers under s. 25-A after holding any judicial enquiry. The only difference in the language of s. 25-A and s. 53-A both of which were inserted in the Act in 1947 is that action can be taken under s. 53-A only when the committee is incompetent to perform the duties imposed on it a fact the determination of which is not in so many words left to the subjective opinion of the State Government, whereas action can be taken under s. 25-A on the satisfaction of the State Government as to certain facts which is, in terms, left to the subjective determination of the State Government. If, as I have said, the determination of a jurisdictional fact is not by itself sufficient to indicate that, it has to be done judicially, there is nothing else in s. 53-A or in any other section of the Act which will lead to the conclusion that the State Government must act judicially. The only other thing strongly relied on by learned counsel for the appellants is that the State Government may exercise its power under s. 53-A ” by an order stating reasons therefor published in the Gazette “. The requirement that the State Government must give reasons for the order it makes does not necessarily require it to record a judgment judicially arrived at. The legislature might well have thought that public policy required that the State Government entrusted with large administrative power should record its reasons for exercising the same so as to allay any misgivings that may arise in the mind of the public. In my judgment, the action taken by the State Government under s. 53-A is not a judicial or quasi-judicial act but is an administrative act. Learned counsel for the appellants relied on the case of Capel v. Child (1). That decision clearly went upon the construction of the statute that came up for consideration. The fact that action could be taken under that statute on affidavits (1) 2 Cr. & Jr, 558; 37 R. R. 761. 1465 was construed as a clear indication that the Bishop had to arrive at a decision as to the negligence of the Vicar on hearing evidence adduced before it by affidavit which led to the next conclusion that the Vicar must be given an opportunity of being heard and of adducing evidence in his own defence. From this circumstance it was inferred that even when the Bishop acted on his knowledge of fact he must also proceed, judicially, for the two modes of procedure were treated on the same footing by the section itself. As I have said, there is nothing in s. 53-A or any other sec- tion which may lead us to infer a duty to proceed judicially as was done in that case. On the contrary there are indications leading to a different conclusion. To say that action to be taken under s. 53-A is an administrative action is not to say that the State Government has not to observe the ordinary rules of fair play. Reference to the observation made by Fortesque J. in Dr. Bentley’s case about God asking Adam and Eve whether they had eaten the forbidden fruit appearing in the judgment of Byles J. in Cooper v. The Wandsworth Board of Works (1) is apposite. The decision in the last mentioned case clearly establishes that in some cases it may be necessary to give an opportunity to a party to have his say before at) administrative action is taken against him. But that is quite different from the well-ordered procedure involving notice and opportunity of hearing necessary to be followed before a quasi-judicial action, open to correction by a superior court by means of a writ, of certiorari, can be taken. The difference lies in the manner and mode of the two procedures. For the breach of the rules of fair play in taking administrative action a writ of certiorari will not lie. I have already recounted the events and proceedings that preceded the actual passing of the order under s. 53-A. If the action taken tinder that section is to be regarded as an administrative action, as I hold it should be, then I have no doubt that the appellants have had more than fair play. It is said that the State Government did not hold any enquiry before (1) [1863] EngR 424; [1863] 14 C.B. (N.S.) 180; 143 E. R. 414. 1466 making the order and that, therefore, it can-not be said that the appellants had an opportunity to defend themselves against an order of this kind. I do not consider that there is any substance in this contention. If the State Government wanted to hold any enquiry it would do so through some of its officers. Who would be more appropriate and competent to hold the enquiry except the officers on the spot ? The Additional Deputy Collector is obviously the person to whom the duty of enquiry could properly be entrusted. All the charges levelled against the appellants were forwarded to them, and they submitted explanation. The first appellant, who is the President, personally attended many of the sittings. There is no suggestion that they had been prevented from adducing evidence in their own defence, The enquiry was held into what had been alleged against their conduct. It was surely not a purposeless enquiry. As a result of the enquiry certain findings were arrived at which were accepted by the State Government and an order was made under s. 53-A. I do not see what grievance the appellants can possibly have. In my judgment there has been no remissness on the part of the State Government. For reasons stated above I would dismiss this appeal. BHAGWATI J.-.I also agree that the appeal should be dismissed with costs but would like to add a few words of my own. I have had the benefit of reading the judgments prepared by my Lord the Chief Justice, Kapur J. and Subba Rao J. I agree with the reasoning and the conclusions reached in those judgments in regard to points Nos. (i) & (ii), viz., (i)that though the Notification purports to have been made in exercise of the powers conferred on the State Government by s. 53-A, in substance and in reality it has been made under s. 57 of the Act; and, (ii)that if the Notification is held to be one made under s. 57 it is ultra vires and bad since the statutory requirement of affording reasonable opportunity to explain has not been complied with. 1467 In regard to point No. (iii), viz., (iii)that even if the impugned Notification be held to come within s. 53-A it is still ultra vires since before promulgating it the State Government has committed a breach of the rules of natural justice in not giving any opportunity to the appellants to defend themselves, however, there is a difference of opinion between my Lord the Chief Justice and Kapur J. on the one hand, and Subba Rao J. on the other, as to the character of the act performed by the State Government while arriving at the conclusion that the Committee is not competent to perform the duties imposed on it or undertaken by it. Whereas the former are of the view that in arriving at such conclusion the State Government performs only an administrative function, the latter is of the view that the fact whether the committee is not competent to perform the duties imposed on it or undertaken by it is a jurisdictional fact and in arriving at that conclusion the State Government performs a quasi-judicial function. In my opinion, the determination of the question whether the State Government performs an administrative or a quasi-judicial function in the matter of arriving at such conclusion is immaterial for the purposes of this appeal, inasmuch as an inquiry had been instituted by the State Government in the matter of the charges levelled against the appellants and full opportunity had been given to them to defend themselves. I need not add anything in this regard to what has been said by my Lord the Chief Justice in the judgment just delivered by him. I only wish to say that the circumstances adverted to therein amply demonstrate that the appellants had notice of the charges which had been levelled against them and had rendered full explanation in regard to the same, and, in the matter of the inquiry in regard to those charges the principles of natural justice had been complied with and the conclusion reached by the State Government in the matter of the incompetence of the committee was unassailable. That being so, I would prefer not to express any opinion on the vexed question as to whether the act 1468 performed by the State Government is quasi-judicial or administrative in character. The result, however, is the same and I agree with the order proposed dismissing the appeal with costs. S.K. DAS J.-I agree generally with the conclusions reached by my Lord the Chief Justice and the reasons on which those conclusions are founded. But I wish to add a few words with regard to the third question, namely, if in making the impugned notification, the State Government violated the principles of natural justice. The answer to that question depends on whether on a true construction of the relevant statute, the State Government performed an administrative function or what has been called a quasi- judicial function in making the impugned notification. I am of the view that the action taken by the State Government under s. 53-A of the Act is in its true nature an administrative act. It is said that where there is ‘ a duty to act judicially ‘, the function is quasijudicial: that however does not help us very much in understanding the distinction between an administrative function and a quasi- judicial function. Where the statute clearly indicates that the function is judicial, there is little difficulty. The difficulty arises in cases where the point taken is that by necessary implication the statute requires an administrative body or executive authority to act judicially. It is indeed Generally correct to say that where an administrative body or authority is under a duty to act judicially, its function is judicial or quasi-judicial. But it is, to some extent, a tautology to say that the function is judicial or quasi- judicial if it is to be done judicially. To get to the bottom of the distinction, we must go a little deeper into the content of the expression ‘duty to act judicially ‘. As has been repeated so often, the question may arise in widely differing circumstances and a precise, clear-cut or exhaustive definition of the expression is not possible. But in decisions dealing with the question several tests have been laid down; for example- 1469 (i) whether there is a lis inter partes (ii) whether there is a claim (or proposition) and an opposition; (iii)whether the decision is to be founded on the taking of evidence or on affidavits; (iv)whether the decision is actuated in whole or in part by questions of policy or expediency, and if so, whether in arriving at the decision, the statutory body has to consider proposals and objections and evidence; and (v)whether in arriving at its decision, the statutory body has only to consider policy and expediency and at no stage has before it any form of lis. The last two tests were discussed and considered in R. v. Manchester Legal Aid Committee (1). It is fairly clear to me that tests (i) to (iv) are inappropriate in the present case by reason of the provisions in s. 53-A ,is contrasted with s. 57 and other sections of the Act. The test which is fulfilled in the present case is test (v), and that makes the function under s. 53-A a purely administrative function in spite of the requirement of an initial determination of a jurisdictional fact and the recording of reasons for the decision. I am content to rest my decision on the aforesaid ground, as I am not satisfied that the enquiry held by the Deputy Collector was a proper enquiry if it be held that s. 53-A entrusts a quasi-judicial function to the State Government and therefore requires compliance with the principles of natural justice. That enquiry was for a different purpose altogether, the charges were not the same, and in my view the Municipal Committee had no real opportunity of meeting the charges on which the State Government ultimately took action. I prefer, therefore, to base my decision on the third question on the short ground that the function which the State Government exercised under s. 53-A was administrative in nature and it is settled law that such action is not amenable to a writ of certiorari. On the first two questions I am in entire agreement (1)[1952] 2 Q.B. 4I3. 1470 with my Lord the Chief Justice and have nothing useful to add. KAPUR J.-This appeal pursuant to special leave of this Court is directed against the judgment and order of the Madhya Pradesh High Court. The appellants are the Municipal Committee of Dhamtari and its President Radheshyam Khare who are challenging the order of the State Government of Madhya Pradesh appointing an Executive Officer of the Municipal Committee under s. 53-A of the C. P. & Berar Municipalities Act (Act 11 of 1922) to be termed in this judgment, the Act. The facts leading to this appeal are that one Dhurmal Daga who was a member of the Dhamtari Municipal Committee (appellant No. 2) was found importing cotton into the municipal area without paying octroi duty. He then went on hunger strike and also distributed pamphlets making allegations against both the appellants. At this stage the Collector of Raipur district personally intervened and persuaded Dhurmal Daga to break his fast on an assurance that he (the Collector) would look into his allegations. In pursuance of that assurance Mr. Rana, Deputy Collector held an enquiry and called the explanation of tile Municipal Committee and its President and submitted his report on November 22, 1956, which was forwarded to the State Government on April 24, 1957. The State Government thereupon took action under s. 53-A of the Act and by a notification dated November 18, 1957, appointed a Deputy Collector B. P. Jain respondent No. 3 as Executive Officer of the Dhamtari Municipal Committee for a period of 18 months on the ground that the Municipal Committee was incompetent in the performance of its duties under the Act. The relevant part of the notification was as follows: ” Whereas it appears to the State Government that the Municipal Committee, Dhamtari, has proved itself incompetent to perform the duties imposed on it by or under the Central Provinces and Berar Municipalities Act, 1922 (11 of 1922), inasmuch as it- (a) granted grain and building advances to the I 1471 employees without prior sanction and no efforts were made for their recovery, (b)showed carelessness in cases of embezzlements of the employees and did not report such cases to Government, (c)failed to control the President who issued orders in cases in which he had no authority, (d)spent thousands of rupees on sanitation and other works although there was no provision in the budget, (e)allowed unconcerned persons to interfere in its working, (f)showed partiality in the appointment and dismissals of the employees, further such appointments and dismissals were made against rules, (g)delayed the constitution of the committee and the framing of budget, (h) misused the trucks of the municipality, (i) failed to recover the lease money, (j) shown partiality in the issue of transit passes to certain traders, further excess octroi duty was charged on certain articles and in certain cases where octroi duty is not leviable it was levied just to harass the people, (k)distributed municipal manure to certain persons without any charge, similarly distributed the manure free of cost and used the truck of the municipality for this purpose, (1)failed to control its president who spent the money of the municipal Committee without any authority, (m)spent huge amount on the maintenance of the roads and drainage but their condition has remained unsatisfactory, (n)failed to give copies of the documents as allowed under rules, also failed to allow its members to inspect the records as is permissible under rules, (o) failed to invite tenders of purchase of articles.” This order of the State Government was challenged under Art. 226 in the Madhya Pradesh High Court on the allegation that the order passed by the State Government constituted 187 1472 ” a flagrant abuse of the powers conferred under section 53- A of the Municipalities Act. The charges enumerated in the notification were never framed. The State Government did not serve any notice on the Municipal Committee or its President to show cause against the charges nor were they afforded any opportunity to have their say in the matter.” The appellants submitted that the finding about the incompetency of the committee was vitiated because no enquiry was held and there was no evidence in support thereof and the order was void and inoperative because (1)” there is non-observance of the mandatory provisions. The power has not been exercised within the limits prescribed. (2) there is no determination of the basic facts. (3) there is a violation of the rules of natural justice. (4) the action is mala fide.” The respondents denied the allegations and submitted that the State Government made the order under s. 53-A of the Act on the report of Mr. Rana, Deputy Collector who held an enquiry into the allegations made against the appellant under the orders of the Collector of Raipur; that proper notice was given to the Secretary of the Municipal Committee which filed its Written Statement through its President appellant No. 1 who appeared personally during the proceedings of the enquiry, but no opportunity for ” leading any evidence” was demanded by the appellant nor was it denied. They also pleaded that no formal enquiry was required under the law and that the Court could not go into the sufficiency or otherwise of the reasons for taking action ” and the same will not be enquired into by the Court objectively.” A learned Single Judge of the High Court dismissed the petition holding that whatever be the position under s. 57, under s. 53-A no explanation was required to be called from the municipal committee and the State Government was authorised under the law to act promptly. The High Court negatived the allegation that the State Government had proceeded against 1473 the Municipal Committee, appellant No. 2, at the instance of Dhurmal Daga. The learned Judge said: ” I have gone through the material on which the State Government based its action on enquiry into the charges levelled against the municipal committee and find that there were several other complaints besides those made by Dhurmal Daga. The record of the enquiry shows that on some occasions the petitioner was present during the enquiry. I am satisfied that the invocation of the power of this Court under Art. 226 of the Constitution is not open to the present petitioner “. A Letters Patent appeal against this judgment was dismissed on February 21, 1958. The appellants have come in appeal to this Court by special leave and have raised four points before us: (1)That the notification though it purports to be under s. 53- A of the Act is really under s. 57 which is shown by the grounds given in the notification, the powers vested in the Executive Officer and by the effect of the order ; (2)and if it is a notification under s. 57 it is ultra vires because the statutory requirements of the section had not been complied with; (3) even if the notification be held to be under s.53-A of the Act it was still null and void and inoperative as it violated the principles of natural justice and (4)that the order made was mala fide inasmuch as it had been passed with an ulterior object of taking away the control of the municipality from the lndependent Party which was in a majority and that this was in accordance with the policy adopted by the State Government of superseding or suspending municipalities which were not controlled by the Congress Party. As further proof of the mala fides of Res- pondent No. 1, the State Government, it was alleged that Radheshyam Khare appellant No. 1 was expelled from the Congress Part for six years in about March 1957 because he stood as an Independent 1474 candidate for election to the Lower House of Parliament in the 1957 elections. The allegation of mala fides was not seriously pressed nor is there any material to sustain it. In order to decide the other questions raised in this appeal it is necessary to examine the scheme of the Act and its provisions relating to the powers of the State Government in regard to municipal committees. Chapter I of the Act makes provisions for the constitution of municipalities. Section 4 empowers the State Government to signify by notification it,-, intention to declare a local area to be a municipality, to alter its limits or to withdraw the whole of it from a municipality. Section 5 gives the right to the inhabitants of such local area to file objections against anything contained in the notification within a period of 6 weeks and after consideration of such objections if any, the State Government can confirm, vary or reverse its notification under S. 4. Sections 6 to 8 deal with consequential orders on inclusion and exclusion of local areas: Section 9 authorises the State Government to give such powers to a municipality as in its opinion it is suited for. It provides: ” If the circumstances of any municipality are such that, in the opinion of the State Government, any provision of this Act is unsuited thereto, the State Government may, by notification: (a)withdraw the operation of that provision from the municipality; (b)apply that provision to the Municipality in a modified form to be specified in such notification ; (c)make any additional provision for the municipality in respect of the matter mentioned in the provision which has been withdrawn from, or applied in a modified form to, the municipality.” Chapter II deals with the membership of committees and chapter III with Subordinate Agencies. Under this chapter fall Sub-Committees, Presidents and other officers of Municipal Committees. Section 25-A which deals with the appointment of a Chief Executive Officer, Health Officer or Supervisor is as under: 1475 (1)” The State Government may, if in its opinion -the appointment of- (a)a Chief Executive Officer is necessary for general improvement in the administration of the municipality. and it is satisfied that the state of the municipal fund justifies expenditure on such appointment, require the committee to appoint any such officer. (2)A requisition under sub-section (1) shall state the period within which the committee shall comply therewith. (3)If the committee fails to comply with the requisition within the stated period, the State Government may, if it thinks fit, appoint such officer at the cost of the committee and fix his pay and allowances, the rate of his contribution to the provident fund or to. his pension and other conditions of service. (4)The State Government may require the committee to delegate to the Chief Executive Officer . appointed under this section such powers, duties and functions of the committee, president, vicepresident, or secretary under this Act or any rule or bye-law made thereunder as may be specified in such requisition, and if the committee fails to comply with such requisition within a reasonable time, the State Government may determine which powers, duties and functions shall be exercised and performed by such officer in addition to, or to the exclusion of, their exercise and performance by the committee, president, vice-president or secretary. (5)The secretary of the committee shall be subordinate to the Chief Executive Officer. (6)The provisions of subsection (5) of section 53-A shall apply to the Chief Executive Officer or Health Officer or Supervisor appointed under this section “. Chapter IV deals with the procedure to be followed in Committee Meetings, chapter V with property, contracts and liabilities and chapter VI with duties of committees. Chapter VIII is headed ” Control “. It prescribes the authorities which have the power to control the acts of committees and also lays down the 1476 extent of such control and the method of its exercise. Section 52 gives to the Deputy Commissioner the power to examine the proceedings of committees or subcommittees. Section 53 empowers a Deputy Commissioner to suspend the execution of any order or resolution of a committee or a subcommittee and prescribes the circumstances in which this power can be exercised. Then comes s. 53-A which empowers the appointment of an Executive Officer by the State Government. Section 54 provides that in the case of emergency the. State Government, on the receipt of the report under s. 52 or otherwise may require a municipality to execute any work or perform any act which in its opinion is necessary for the service of the public. Under s. 55 the State Government if satisfied after receiving a report under s. 52 or after enquiry if any that a municipal committee has made default in performing its duties may appoint ” some person to perform ” the duty and can direct the municipal committee to pay reasonable remuneration to the person so appointed. If default is made in any such payment the State Government can under s. 56 direct a person having custody of municipal funds to make such payment. Section 57 empowers the State Government to dissolve and/or to supersede the municipal committee. Section 58 gives to the State Government the power of revision and an overall control over the actions of officers acting or taking any action under the Act. But it cannot reverse any order unless notice is given to the parties interested and they are allowed to appear and be heard. Section 58-A authorises the State Government to enforce its orders. Section 58-B gives to the State Government the power of review of orders passed by itself and Commissioners and Deputy Commissioners have similar powers of reviewing their own orders provided that no order shall be varied unless notice is given to the parties interested to appear and be heard in support of the order. Under s. 59 certain officers appointed by general or special orders of the State Government are entitled to attend any meeting of the committee and address 1477 it on any matter affecting the work of their departments. Section 60 provides for the settlement of disputes between the committees and other local bodies. As ss. 53-A and 57 are the subject matter of controversy in this case it is necessary to quote them in full : Section 53-A ” (1) If a committee is not competent to perform the duties imposed on it or undertaken by it by or under this Act or any other enactment for the time being in force and the State Government considers that a general improvement in the administration of the municipality is likely to be secured by the appointment of a servant of the Government as the executive officer of the Committee, the State Government may, by an order stating the reasons therefor published in the Gazette, appoint such servant as the executive officer of the committee for such period not exceeding eighteen months as may be specified in such order. (2)Any executive officer appointed under subsection (1) shall be deemed to be an officer lent to the committee by Government under sub-section (3) of section 25. (3)When under subsection (1) an executive officer is appointed for any committee, the State Government shall determine from time to time which powers, duties and functions of the committee, president, vice-president or secretary under this Act or any rule or bye law made thereunder shall be exercised and performed by such officer, in addition to, or to the exclusion of, their exercise and performance by the said committee. president, vice-president or secretary. (4)The Secretary of the committee shall be subordinate to the executive officer. (5)The executive officer shall have the right to attendall meetings of the committee and any joint committeeand to take part in the discussion so as to make an explanation in regard to the subject under discussion, but shall not move, second, or vote on any resolution or other motion “. Section 57 which gives power to the Government 1478 to dissolve or supersede the municipality is as follows: ” (1) If a committee is not competent to perform, or persistently makes default in the performance of, the duties imposed on it or undertaken by it under this Act or any other enactment for the time being in force, or exceeds or abuses its powers to a grave extent, the State Government may, by an order stating the reasons therefor published in the Official Gazette, dissolve such committee and may order a fresh election to take place. (2)If after fresh elections the new committee continues to be incompetent to perform, or to make default in the performance of, such duties or exceeds or abuse.,; its powers to a grave extent, the State Government may, by an order stating the reasons therefor published in the Official Gazette, declare the committee to be incompetent or in default, or to have exceeded or abused its powers, as the case may be, and supersede it for a period to be specified in the order. (3)If a committee is so dissolved or superseded, the following consequences shall ensue: (a)all members of the committee shall, as from the date of the order, vacate their offices as such members; (b)all powers and duties of the committee may, until the committee is reconstituted, be exercised and performed by such person or persons as the State Government may appoint in that behalf; (c)all property vested in it shall until the committee is reconstituted vest in the State Government. (4)On the expiration of the period of supersession specified in the order, the committee shall be reconsti- tuted, and the persons who vacated their offices under subsection (3), clause (a), shall not, by reason solely of such supersession be deemed disqualified for being members. (5)No order under subsection (1) or subsection (2) shall be passed. until reasonable opportunity has been given to the committee to furnish an explanation. (6) Any person or persons appointed by the State 1479 Government to exercise and perform the powers and duties of a dissolved or superseded committee may receive payment, if the state Government so directs for his or their services from the municipal fund.” A review of all these provisions shows that under the Act the municipalities are not independent corporations exercising powers unregulated by Governmental control. They confer regulatory authority on the State Government to keep control over municipalities, the extent of control and the mode of its exercise being dependent on circumstances and expediency varying with the exigencies of every case. The Statute leaves the discretion to the State Government to choose the action to be taken and the provision under which it is to be taken. Wherever the legislature intended an enquiry to be held before taking any action provision is made for it and wherever it intended a person to be allowed to appear and be heard it has specifically provided for it. Generally speaking excepting where all order is to be reversed qua a particular person, there is no provision for a hearing. The nature and extent of regulatory powers of the State Government and the mode of their exercise are matters of policy and expediency and indicate the taking of administrative action by the State Government and not the exercise of any judicial power and would therefore be excluded from judicial review. Counsel for the appellants firstly submitted that although the State Government has purported to act under s. 53-A, in fact and in reality the order falls under s. 57 and because the provisions of sub- section (5) have not been complied with, the order of the State Government is illegal, null and void. A comparison of the-two sections 53-A and 57 shows the difference in the powers exercisable by the State Government under the two sections and the consequences that result therefrom. Under s. 53-A all that the State Government does is to appoint for a period of not more than eighteen months an Executive Officer who exercises such powers under the Act as are men- tioned in the order which may be in addition to or to 188 1480 the exclusion of their exercise by the municipality, etc., a power also exercisable under s. 25-A or to a limited degree under s. 9. Under s. 57 the municipal committee itself is dissolved and may be superseded in which case its members cease to exist and vacate their offices and the powers and duties of the municipal committee then become vested in the person or persons appointed for the purpose by the State Government and its property also vests in the State Government. These consequences do not follow an order Under s. 53-A. But it is submitted that in reality the result is the same because of the powers which under the notification have been given to the Executive Officer and what is left with the Committee is only “husk”. If this were so then whenever any action is taken whether under s. 9 of the Act or under s. 25-A in conceivable cases it would amount to supersession of the municipal committee and would therefore fall under s. 57 which argurment was neither submitted nor is tenable. According to the language of the two sections, 53- A and 57 of the Act the two classes of actions contemplated are quite different and different consequences follow; one should not be confused with the other. The contention that the action taken under s. 53-A is colourable and the matter really falls under s. 57 is an allegation of mala fides which has not been made out. If the statute gives to the state Government powers under its various provisions and the State Government chooses in its discretion to use one rather than the other it is beyond the power of any court to contest that discretion unless a case of abuse is made out (per Lord Halsbury L. C. in the West- minster Corporation v. London and North Western Railway Co. (1)). And it cannot on that ground alone be held to be a mala fide act. A great deal of stress was laid by the appellants’ counsel on the withdrawal of the powers of the municipality and particularly under s. 31 and it was contended that the Committee would not be able to hold its monthly meetings as required under that section. It is difficult to interpret the notification in this manner, (1)[1905] A.C. 426. 1481 because ,so interpreted it would mean that the Executive Officer alone will meet for the transaction of business at least once a month which would amount to an absurdity. The reference in the notification must be to sub-section (2) of s. 31 which deals with the power of the President, etc., to call a meeting suo motu or on the requisition of a fifth of the members. Similarly the mention of Chapter V in the notification cannot vest the property of the committee in the Executive Officer. The notification deals with powers and duties and not with the vesting of property. It may however be mentioned that even where no Executive Officer is appointed by the State Government it can direct that any property vested in the municipality shall cease to be so vested and it can make such orders as it thinks fit regarding the disposal and management of such property (s. 38). No doubt the powers under s. 39, which deals with the management of public institutions, powers and duties of the municipality, are taken away and are vested in the Executive Officer but these powers in any case are subject to rules made by Government and these rules are always subject to change by the State Government. The powers of the municipal committee under s. 40 to request the State Government for acquisition under the Land Acquisition Act have also been withdrawn. Section 41 deals with transfers of municipal property to the Government and s. 42 with power of the municipality to transfer municipal property but under that section the control of the State is not excluded even when there is no Executive Officer. Section 44 deals with the’ ‘Making of contracts and the other sections in that chapter do not deal with the powers and duties. of a municipal committee excepting s. 49. Chapter VI prescribes the duties of a municipal committee and some of those also have been vested in the Executive Officer. There is no doubt that some very important powers have by the notification been taken away from the municipal committee and have been vested in the Executive Officer but that is a far step from saying that the committee has thereby been suspended. This exercise of its functions by the State Government is of 1482 no different quality leading to different results than what would have happened had action been taken under s. 25-A or under B. 9 of the Act. It cannot there. fore be, said under the circumstances of this case that the action of the State Government is cobweb varnish or that it is merely a colourable order or a device to avoid the requirements of sub-s. 5 of a. 57. , It was then contended that the notification enumerates acts of the municipality some of which axe instances of mismanagement and others of abuse of power. It cannot be said that the allegations in regard to the spending of money without a provision in the budget or showing partiality in the matter of appointment and dismissal or in the matter of issuing of transport passes or distribution of municipal manure or the charge of spending huge amounts on maintenance of roads and drainage without improving their condition are nothing short of gross mismanagement or abuse of power and cannot fall under the charge of incompetency in the performance of duties or in the exercise of powers by the municipality. Assuming that they can only be instances of abuse, there is nothing wrong in the State Government enumerating all the misdeeds and wrongs done by the committee and then saying that it prefers to take action under s. 53-A as it has done and not under s. 57. If the acts and omissions are instances of abuse the State Government could if it thought fit, take action under s. 57. If having two courses open to it the State Government took the lesser of the two actions, its discretion cannot be questioned, in the absence of proof of bad faith. It cannot therefore be said that the State Government has only pretended to act under s. 53-A but in reality it was acting under s. 57 of the Act. It was lastly contended that the State Government when it acts under s. 53-A has a duty to act judicially and the rules of natural justice required that ]the appellants should have been given an opportunity to show cause against action being taken under that section. As said above under s. 9 of the Act the State Government has, on the ground of unsuitability, the power to withdraw from the municipality any of the 1483 powers conferred under the Act either wholly or partially and under s. 25-A it has the power of appointing a Chief Executive Officer if it is necessary for the general improvement in the administration of the municipality and exactly the same consequences would follow as they do when an Executive Officer is appointed. under s. 53-A. There are also sections 52, 53, 54, 55 and 56 which place regulatory control in certain Government agencies. If action taken under those provisions is an exercise of executive functions of the State Government can it be said that the exercise of similar power under s. 53-A and for similar object i.e. improving the general administration in case of incompetency of the municipality will change an administrative decision into a judicial or quasijudicial decision ? The real test to distinguish between a quasi-judicial and an administrative act of ail authority is based on the duty ‘of that authority having power to determine a question’ to act judicially. Lord Hewart, C. J. in R. v. Legislative Committee of the Church Assembly (1) said: In order that a body may satisfy the required test it is not enough that it should have legal authority to determine question affecting the rights of subjects; there must be superadded to that Characteristic the further characteristic that the body has the duty to act judicially “. And thus the authority taking a decision should not merely determine a question it should also be under a duty to act judicially. It is that essential characteristic which the State Government lacks in the present case. When it considers something likely to result from its action it is merely taking executive action and not determining a question or acting judicially. This dictum of Lord Hewart was quoted with approval by Das J. (as he then was) in Kusaldas Advani’s case (2). He said, ” Therefore, in considering whether a particular statutory authority is a quasi-judicial body or a mere administrative body it has to be ascertained whether, the statutory authority has the duty to act judicially”. There is no indication (1) [1928] 1 K.B. 411, 415. (2) [1950] INSC 22; [1950] S.C.R. 621, 720. 1484 in the statute itself that the State Government has a duty to act judicially when it appoints an Executive Officer under s. 53-A. nor has any procedure been prescribed as to the manner in which the power under this section is to be exercised by the State Government which may give an indication as to nature of the decision, taken. The municipal committee is a creation of the Act and therefore it has all the powers and is subject to all the controls under the Act which are to be exercised as provided there- under. The Act gives different modes of regulatory control to the State Government and the powers of the State Government extend from revision of the actions, orders and resolutions of the municipal committee to the exclusion of local areas from its jurisdiction, taking away powers given under the Act, the appointment of Executive Officers, suspension and supersession of municipalities. In certain sections e. g. s. 57 dealing with this regulatory control the statute requires that the explanation of the committee be called for before a particular action is taken by the State Government and in others no such requirement is prescribed. That is a clear indication of the intention of the legislature that an opportunity was to be given in one case and not in the other. In other words a kind of quasijudicial approach was intended in one case and administrative in the other. The Privy Council in Nakkuda Ali’s case (1) (a case under a Ceylon Regulation) said : ” But, that apart, no procedure is laid down by the regulation for securing that the license holder is to have notice of the Controller’s intention to revoke the license, or that there must be any enquiry, public or private, before the Controller acts “. In Advani’s case (2) Fazl Ali J. examining the ditty of authorities to act judicially said at p. 641 : There are no express words in s. 3 or any other section, to impose such a duty (to determine judicially); nor is there anything to compel us to hold that such a duty is implied (1) [1951] A.C. 66,78. (2) [1950] INSC 22; [1950] S.C.R. 621. 1485 The learned judge took into consideration the fact that certain sections specifically provided an enquiry and others did not, and observed: ” the fact remains that there is nothing in the Ordinance to suggest that the public purpose is to be determined in a judicial way “. Therefore where in a statute like the present one some sections prescribe the calling for the explanation of the municipality before any action is taken by the State Government and others do not, it is an indication of the intention of the legislature to exclude the application of principles of audi alteram partem in the latter case. The section (s. 53-A) has to be read as one whole and not in compartments. The relevant words are: ” If the committee is not competent to perform the duties imposed upon it and the State considers that a general improvement in the administration of the municipality is likely to be secured by ” The latter portion i. e. ” the State Government considers is likely to be secured ” indicates a purely subjective determination and taking a policy decision. The use of the words ” considers ” and ” is likely relate to a subjective and not an objective process. ” To consider ” means to think, to contemplate mentally, to regard and ” likely ” means probably; such as might well happen; apparently suitable for. These words cannot have any reference to objectivity but suggest subjectiveness. The opening words of the section ” If the committee is not competent cannot be read separately from the latter part. When under s. 53-A the State Government appoints an Executive Officer which act it considers likely to im. prove the general administration of the municipality it does not take two decisions, one objective as to the incompetency of the administration of the municipality and the other subjective as to the action likely to improve the administration. The decision is only one. The State Government is the sole judge of both matters, namely, of the incompetency and -the remedy needed. Both are parts of one integrated whole a decision taken in the exercise of the administrative 1486 functions of the State Government and admits of no element of judicial process. (Vide The Province of ,Bombay v. Kusaldas Advani (1) (per Kania C.J. at p. 633-635) and per Das J. (as he then was) at p. 703). The State Government must necessarily be the sole judge of the state of incompetency of the municipality otherwise it would not be able to take its administrative decision as to the action which it should take and which it considers is likely to improve the administration. Both the decisions as to the incompetency of the municipality and the exercise of the executive function as to the action to be’ taken thereon are matters of like character i. e. administrative matters. (Kusaldas Advani’s case at p. 633). If that were not so then on the question of incompetency the State Government procedure will be analogous to a judicial process subject to review of Courts and the action it will take will be an administrative decision not subject to judicial review which will not only lead to inconvenience but to confusion. The Privy Council pointed out in Venkatarao v. Secretary of State (2) that ” inconvenience is not a final consideration in a matter of construction, but it is at least worthy of consideration, and it can hardly be doubted that the suggested procedure of control by the Courts over Government in the most detailed work of managing its services would cause not merely inconvenience but confusion “. The very fact that an order under s. 53-A is in the nature of an emergency action to protect the interests of the rate payer and has a limited duration not exceeding 18 months also negatives the order being founded on an objective determination as to the incompetency of the committee. Such a construction will defeat the very purpose of a., 53- A. Further action under s. 57 is of a permanent nature and has accordingly been expressly made subject to an explanation by the municipal committee. The absence of such a provision from s. 53-A clearly shows that the legislature did not intend that there should be an elaborate hearing but intended that the State should under S. 53-A take a swift administrative decision. The (1) [1950] INSC 22; [1950] S.C.R 621. (2) (1936) L.R. 64 I.A. 55. 1487 correct position, as indicated above, is that the decision of the State Government as to incompetency and the decision as to the action to be taken were really one decision, one integrated whole a subjective decision of the State Government that it considered that by the appointment of an executive officer a general improvement in the hitherto general administration was likely to be secured. Merely because the fact of incompetency is a preliminary step to the exercise of an administrative function by the State Government, under & 53-A it is not necessary that the fact is to be determined judicially. Where the exercise of the administrative functions of an Executive authority like the State Government are subject to a decision as to the existence of a fact, there is no duty cast on the State Government to act judicially. Both the decision as to the fact and as to the action to be taken are really one and not two decisions, the determination being for the purpose of taking an appropriate administrative decision. As has been said above it is one integrated whole and cannot be separated into parts with different legal qualities. This was the view of Kania C. J. in the Province of Bombay v. Kusaldas Advani (1) where it was observed at p. 633: ” Because an executive authority has to determine certain objective facts as a preliminary step to the discharge of an executive function, it does not follow that it must determine those facts judicially. When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a power conferred on it, the determination of the objective fact and the exercise of the executive power based thereon are alike matters of an administrative character Fazl Ali J. in that case said at p. 642: For prompt action the executive authorities have often to take quick decisions and it will be going too far to say that in doing so they are discharging any judicial or quasi- judicial functions. The word I decision’ in common parlance is more or less a natural (3) [1950] INSC 22; [1950] S.C.R. 621. 1488 expression and it can be used with reference to purely executive as well as judicial orders. The mere fact that an executive authority has to decide something does not make the decision judicial. It is the manner in which the decision has to be arrived at which makes the difference, and the Teal test is: Is there any duty to act judicially ? The language of sub-section (1) of s. 63-A indicates that the question whether the State Government considers that the action taken under the section i. e., the appointment of an Executive Officer is likely to secure an improvement in the general administration of the municipality is one of expediency, opinion and policy, matters which are peculiarly for the State Government to decide and of which, always assuming that it is acting bona fide, it is the sole judge. No objective test is possible. Therefore the use of these words “considers ” and ” is likely ” negatives any objective approach or judicial or quasi-judicial process. The State Government is not essentially a judicial or a quasi-judicial body but its essential function is administrative. The various provisions of the Act show that it takes its decisions as to the mode and extent of control of municipalities in pursuance of its opinion and policy and on grounds of expediency. In arriving at its decision it at no stage has any form of lis or quasi-lis before it nor can it be said that there are two parties before it. The Municipal Committee and itself cannot be termed quasi-litigants or parties to a proposition and opposition. It is not bound to take action under s. 53-A or any other section of the Act. It has to consider the question from the point of view of policy and expediency and the exigencies of the case which shows that it is not under a duty at any stage to act judicially to determine a question. This further supports the view that a correct interpretation of the words ” considers ” and Is is likely to be secured ” indicates a subjective decision and these words make the order of the State Government administrative and not judicial or quasi- judicial. The argument that the order is quasi-judicial because it affects the rights of I the Municipal 1489 Committee is vacuous because all that the order complained of does is that it restricts the exercise of certain powers by the municipal committee and vests some powers in another authority contemplated by the statute. Besides every decision of the Executive generally affects the rights of one citizen or another. In Advani’s case (1) Kania C. J. said at page 632: “. it is broadly stated that when the fact has to be determined by an objective test and when that decision affects rights of some one, the decision or act is quasi- judicial. This last statement overlooks the aspect that every decision of the executive generally is a decision of fact and in most cases affects the rights of some one or the other.” But it was contended that in its order the State Government has to state reasons for taking action under s. 53-A. In a democratic system of government there is always the other party, the electors and citizens, who must know why the State Government takes one particular action rather than another. Besides the mere requirement of giving reasons would not change what was an administrative body into a judicial body or an administrative decision into a judicial or quasi-judicial determination. The following passage from Halsbury’s Laws of England, Vol. II, p. 56 (3rd Edition) aptly states the law and may usefully be quoted: ” If, on the other hand, an administrative body in arriving at its decision has before it at no stage any form Of lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any time to act judicially “. See also R. v. Manchester Legal Aid Committee In B. Johnson & Co. (Builders) Ltd. v. Minister of Health (3) it was also held that the Minister was entitled to inform his mind by informal machinery of an enquiry and merely because in order to inform his mind the enquiry had to be held it could not be said that the Minister was not performing his administrative (1) [1950] INSC 22; [1950] S.C.R. 621. (2) (1952) 2 Q.B. 413.431. (3) (I947) 2 A.E.R. 395. 1490 function. At p. 405 Cohen L. J. went further and said: ” His duty as regards information received by him in his executive capacity is to use that information fairly and impartially. This may involve that he should give an opportunity to the authority or to the objector, as the case may be, of dealing with some allegation in a communication he has received before the quasi-lis started, but, if he fails to do so, he is responsible only to Parliament for the discharge of his executive duties, and cannot be made responsible in these courts.” Appellants’ counsel relied on some English cases, the first of which was Cooper v. Wandsworth Board of Works (1) where Byles J. said at p. 420: “. although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature.” This view is not in accord with the modern exposition of the law in Nakkuda Ali’s case (2) or Franklin’s case (3). Lord Shaw in Arlidge’3 case (4 ) rejected the concept of natural justice in the following language : “. in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far it is resorted to for other purposes, it is vacuous.” In R. v. Manchester Legal Aid Committee (5) the court observed : ” The true view, as it seems to us, is that, the duty to act judicially may arise in widely different circumstances which it would be impossible, and, indeed, inadvisable, to attempt to define exhaustively. Where the decision is that of a court then, unless, as in the case, for instance, of Justices granting excise licences, it is acting in a purely ministerial capacity, it is clearly under a duty to act judicially. When, on the (1) [1863]14 C.B. (N.S.) 180; [1863] EngR 424; 143 E.R. 414, 420. 2,0.7 (2) [1951] A.C. 66,78. (4) [1915] A.C. I20,138. (3) [1947] UKHL 3; [1948] A.C. 87. (5) [I952] 2 Q.B. 413, 431. other hand, the decision is that of an administrative body and is actuated in whole or in part by questions of policy, the duty to act judicially may arise in the course of arriving at that decision.” But at page 431 it was said: ” If, on the other hand, an administrative body in arriving at its decision at no stage I has before it any form of lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at, any stage to act judicially.” That was a case of a debtor who applied for and obtained a certificate of legal aid under the Legal Aid and Advice Act, 1949, in connection with his claim for damages against a company but was thereafter adjudicated bankrupt and at his instance the certificate was cancelled as his claim vested in the trustee in bankruptcy. The trustee then applied for and obtained a certificate of legal aid. The National Assistance Board and the local Committee considered only the financial circumstances of the bankrupt and not of the trustee whose disposable income was in excess of the lowest limit entitling a certificate of legal aid. The debtor company applied for an order of certiorari to quash the certificate alleging that the Committee had exceeded its jurisdiction. Under the Legal Aid (General) Regulation, 1950, reg. 4(1), it was a condition precedent to the grant of a certificate that there should have been a determination by the National Assistance Board of the disposable income of the trustee who was personally liable vis a vis his opponent. It was held that the Board having legal authority to determine questions affecting rights of subjects had a duty to act judicially and that it had exceeded its jurisdiction. The case has some distinguishing features, wanting in the case before us. The statute there prescribed the limit of income of applicant for a certificate of legal aid and the regulations required the determination by the National Assistance Board of the disposable income and disposable capital of such applicant which was a condition precedent to the 1492 grant of the certificate. Clearly without such deter- mination the grant of the certificate was not within the jurisdiction of the Board and therefore the Board had to determine a question and was required to act judicially within the rule laid down in the majority judgment in Kusaldas Advani’s case (1). The Board under that statute was bound to give aid, if certain conditions were fulfilled and was quite unconcerned with questions of policy. ” They have to decide the matter solely on the facts of a particular case, solely on the evidence before them and apart from any extraneous considerations. In other words, they must act judicially, not judiciously.” In Capel v. Child (2) the words ” Whenever it shall appear to -the satisfaction of the Bishop ” were held to imply a duty to act judicially and therefore the principles of natural justice applied. This rule is inconsistent with the decision of the Privy Council in Nakkuda Ali’s case (3) or the decision of the House of Lords in Franklin’s case (4) or the interpretation placed upon the word ” satisfied ” in some of the later English cases, Robinson v. Minister of Town and Country Planning (5) and B. Johnson & Co. (Builders) Ltd. v. Minister of Health (6). This Court in Kusaldas Advani’s case (1) also held this word to indicate a subjective approach. See also Wijeysekra v. Festing (7) where the words of the Statute were ” whenever it shall appear to the Governor See also R. v. Metropolitan Police Commissioner (8) where also the words were ” if he is so satisfied and it was held that these words did not imply ” a judge or a quasi-judge “. The decision in these cases laying down the rule of application of natural justice must be confined to their own facts and the language of the particular statute they interpreted. No general rule can be deduced therefrom nor can they be applied to other statutes and other circumstances. The case before us is not one where no enquiry has (1) [1950] INSC 22; [1950] S.C.R. 621, 720. (2) [1832] 2 Cr. & Jr. 558; 37 R.R. 761. (3) [1951] A.C66,78.(4) [1947] UKHL 3; [1948] A.C. 87. (5) [1947] K.B. 702.(6) [1947] 2 A.E.R. 395. (7) [1919] A.C. 546.(8) [1953] 2 A.E.R. 717. 1493 been hold. There was an enquiry against the appellants in regard to specific allegations made against them and after hearing them a report was made by a Deputy Collector which was forwarded to the State Government before it took action. One Dhurmal Daga made a number of allegations Annexures I and II and those allegations were supported by others like Dear & Co., Poonam Chand Somraj, Dhamtari Traders and Shilaram and the affidavit of the State Government in the High Court shows that the notice was issued to both the appellants to reply to the allega appellant No. 1 appeared before a long explanation denyDhurmal Daga and others. It was after this that the Enquiry Officer made his report which was sent to the State Government and it took action which it considered apposite and that is the action complained of But it was submitted that no notice was given to the appellants as to the nature of the complaint against them and the various charges which have been-enumerated in the notification were never specifically brought to their notice and they were not called upon to show cause why action should not be taken under s. 53-A. In the first place the word,% of the section as explained above do not contemplate any such notice and the argument based on the opening words of the section that the municipality was guilty of incompetence was an objective fact cannot be accepted. It cannot be said in this case that in point of fact the appellants did not know what the complaint against them was or that they had no opportunity of giving their explanation in regard to the charges. All the acts which are enumerated in the notification are contained in the various allegations which were made against the appellants by Dburmal and others. The appellants put a long explanation giving their version of the facts contained in the complaint and the Enquiry Officer sent his report after hearing the appellants and on the consideration of this report the State Government passed its order under s. 53-A. The High Court after going through 1494 the record of the enquiry was satisfied as to the propriety and legality – of the enquiry and that portion of its judgment has been quoted above. Then it was submitted that the enquiry by Mr. Rana was unautborised by the State Government and was no substitute for the enquiry required by the statute. But the statute has prescribed no procedure for enquiries under s. 53-A even if it were to be said that the section contemplates an enquiry. And it is no defect affecting the final decision of the State Government whether the enquiry originates in the manner it did or the State Government ordered it. In these circumstances the third point raised by the appellants cannot be sustained and the submission of the appellants is without substance. The appeal therefore fails and is dismissed with costs throughout. SUBBA RAO J.-I have had the advantage of reading the judgment prepared by my Lord, the Chief Justice and my learned brother, Kapur J. I regret my inability to agree with them in their views on the follwing two questions: (1) Whether under s. 53-A of the C. P. & Berar Municipalities Act (Act II of 1922), hereinafter called the Act, the Government performs a judicial act; and (2) whether in fact the Government complied with the principles of natural justice in making the, Order dated November 8, 1956, under s. 53-A of the Act. As the facts have been fully narrated by my Lord, the Chief Justice, it would suffice if the facts relevant to the aforesaid questions are briefly stated here. The second appellant is the Municipal Committee, Dhamtari, and the first appellant is its President. He was elected as President on July 10, 1956, and took charge of his office on July 27, 1956. On August 8,1956, one Dhurmal Daga went on a hunger strike -for the redress of his grievances against the appellants. The Collector, Raipur, intervened and persuaded him to break his fast and ordered an inquiry into the charge of maladministration. The Deputy Collector, who made the inquiry, gave notice of the said inquiry to the Secretary to the Committee and the first appellant 1495 filed a written reply on September 7, 1956, and personally appeared at the inquiry. Presumably, the result of the inquiry was forwarded to the Government. On November 18, 1957, the Government issued an Order, A under a. 53-A of the Act, enumerating fifteen charges involving acts of nonfeasance, misfeasance, gross negligence and fraud, and stating that, by reason of the said act,%, it appeared to the Government that the Committee had proved itself incompetent to perform the duties imposed on it by or under the said Act. The order further proceeded to state that the Government considered that a general improvement in the administration of the Municipality was likely to be secured by appointing a servant of the Government as the Executive Officer of the Committee. The said Order also appointed Shri B. P. Jain as Executive Officer and entrusted to him most of the important powers and duties of the Committee and the President. Before the drastic action was taken, no opportunity was given either to the President or to, the Committee to explain their conduct in regard to any one of the charges. The previous inquiry made by the Deputy Collector was to attempt to persuade Dhurmal Daga to give up his fast and that inquiry by the Deputy Collector could not, in any sense of the term, be regarded as an inquiry for taking action under s. 53-A of the Act. Records also do not disclose whether that inquiry related to the same charges which were the foundation for the Government taking action under the Act. 1, therefore, proceed on the footing that the Government acted under s. 53-A of the Act without giving any opportunity to the appellants to explain their conduct in regard to the grave charges levelled against them, on the basis of which they were held to be incompetent Within the meaning of s. 53-A of the Act. The material part of s. 53-A reads: ” If a committee is not competent to perform the duties imposed on it or undertaken by it by or under this Act or any, other enactment for the time being in force and the State Government considers that a general improvement in the administration of the 190 1496 municipality is likely to be secured by the appointment of a servant of the Government as the executive officer of the committee, the State Government may, by an other Order stating the reasons therefor published in the Gazette, appoint such servant as the executive officer of the committee for such period not exceeding eighteen months as may be specified in such order.”- The learned Advocate-General, appearing for the State, contended broadly that under this section the Government performs only an administrative act by appointing an Executive Officer for a short period and therefore no opportunity need be given to the affected parties before action is taken thereunder. Mr. M. K. Nambiar, counsel for the appellants, argued that under this section the Government is empowered to deprive the Municipal Committee, duly elected, under the Act, of its powers, though for eighteen months, on the basis of its incompetency and it is against all principles of natural justice to stigmatize such a body as incompetent without giving it an opportunity to explain its conduct. He would say that whether the Committee is competent or not is an objective and jurisdictional fact to be decided judicially by the State Government and, therefore, the act of the Government is a judicial act, which can only be discharged by following the principles of natural justice. Before considering the validity of the arguments based upon the provisions of the section, it would be convenient at this stage to notice briefly the distinction between a judicial and an administrative act and the criteria laid down by decisions for ascertaining whether a particular act is a judicial act or an administrative one. The said criteria have been laid down with clarity by Lord Justice Atkin in Rex v. The, Electricity Commissioners (1), elaborated by Lord Justice Scrutton in Rex v. London County Council (2) and authoritatively restated in Province of Bombay v. Kusaldas S. Advani (3). The aforesaid decisions lay down the following conditions to be complied with: (1) The body of persons must have legal authority; (2) the -authority should (1) [1924] 1 K. B. 171. (2) [1931] 2 K. B. 215. (3) [1950] INSC 22; [1950] S.C.R. 621. 1497 be given to determine questions affecting the rights of subjects; and (3) they should have a duty to act judicially. So far there is no dispute. The question raised in this case is what do the words ” a duty to act judicially ” mean. If the statute in express terms says that the decision should be arrived at judicially, then it is an obvious case. If it does not expressly say so, can the intention of the Legislature be gathered or implied from the terms of the statute ? If it can be so gathered, what are the guiding factors for implying such a duty on the part of a tribunal or authority ? In this context a brief discussion of some of the ‘relevant cases will be helpful. This Court, as I have already stated, restated the law laying down the criteria for ascertaining whether an act is a judicial act or not in Kusaldas’s case (1). There the question was whether the Provincial Government was acting judicially in making the order of requisition under a. 3 of the Bombay Land Requisition Ordinance (Bom. Ordinance V of 1947). The material part of the section under discussion read as follows: ” If in the opinion of the Provincial Government it is necessary or expedient to do so, the Provincial Government may, by order in writing requisition any land for any public purpose.” To ascertain the nature of the act of the Government under that section, this Court reviewed the law on the subject and held, by a majority, that on a proper construction of s. 3 of the Ordinance, the decision of the Bombay Government that the property was required for a public purpose was not a judicial or a quasijudicial decision but an administrative act and the Bombay High Court had, therefore, no jurisdiction to issue a writ of Certiorari in respect of the order of requisition. Das J. as he then was, after considering the law on the subject summarized the principles at page 725 thus: ” (i) that if a statute empowers an authority, not being a Court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute which claim is opposed by another party and (1) [I950] S.C.R. 621. 1498 to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and (ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasijudicial act provided the authority is required by the statute to act judicially.” The propositions so stated appear to me to be unexceptional. But the further difficulty is whether the duty to act judicially should be expressly so stated in the statute or whether it can be gathered or implied from the provisions of the statute. I do not think that Das J. as he then was,, meant to lay down as a condition that the duty to act judicially should be expressly stated in the statute, for rarely any statute would describe the character of disposal of a particular proceeding. If it was intended to insist upon an express condition in the statute, the learned Judge would not have scrutinized the provisions of the Ordinance to ascertain whether the order thereunder was intended to be a judicial act or not. A useful discussion bringing out in bold relief the difference between a judicial and an administrative act is found in R. v. Manchester Legal Aid Committee (1). There a debtor applied to a local aid committee, set up under the Legal Aid and Advice Act, 1949, for a certificate for legal aid to pursue a claim for alleged breach of contract against a limited company. As he was adjudicated insolvent, the certificate was revoked and on application made by his trustee, it was granted to him again. One of the questions raised was whether the legal aid committee in issuing the certificate was acting judicially and therefore subject to an order of certiorari. The court held that the said body was under a duty to act (1) [I952] 2 Q.B. 413. 1499 judicially. Parker J. delivering the judgment of the Court, summarized the law on the subject at page 428 thus: ” The true view, as it seems to us, is that the duty to act judicially may arise in widely different circumstances which it would be impossible, and, indeed, inadvisable, to attempt to define exhaustively. Where’ the decision is that of a Court, then, unless, as in the case, for instance, of justices granting excise licences, it is acting in a purely ministerial capacity, it is clearly under a duty to act judicially. When, on the other hand, the decision is that of an administrative body and is actuated in whole or in part by questions of policy, the duty to act judicially may arise in the course of arriving at that decision. Thus, if, in order to arrive at the decision, the body concerned had to consider proposals and objections and consider evidence, then there is the duty to act judicially in the course of that inquiry. Further, an administrative body in ascertaining facts or law may be under a duty to act judicially notwithstanding that its proceedings have none of the formalities of and are not in accordance with the practice of a court of law. If, on the other hand, an administrative body in arriving at its decision at no stage has before it any form of lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any stage to act judicially.” On the basis of the aforesaid principles, the learned Judge held that the local committee, though an administrative body, was acting judicially in issuing the certificates as in ascertaining the facts for issuing the certificate -it was quite unconcerned with any question of policy. I respectfully agree with the principles enunciated by the learned Judge and they are not in any way inconsistent with the principles laid down by this Court. The law has been neatly summarised in Halsbury’s Laws of England, Third Edition, Volume 11, at pages 55 and 56 and it is as follows: 1500 ” It is not necessary; that it should be a court: ‘an administrative body in ascertaining facts or law may be under a duty to act judicially notwithstanding that its proceedings have none of the formalities of, and are not in accordance with the practice of, a court of law. It is enough if it is exercising, after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition. A body may be under a duty, however, to act judicially (and subject to control by means of these orders) although there is no form of lis inter partes before it; it is enough that it should have to determine a question solely on the facts of the particular case, solely on the evidence before it, apart from questions of policy or any other extraneous considerations.” ” Moreover an administrative body, whose decision is actuated in whole or in part by questions of policy, may be under a duty to act judicially in the course of arriving at that decision. If, on the other hand, an administrative body in arriving at its decision has before it at no stage any form of lis and throughout has to consider the question from the point of view of policy and expediency, it cannot be said that it is under a duty at any time to act judicially.” It is not necessary to multiply citations. The concept of a ,judicial act”, has been conceived and developed by the English Judges with a view to keep the administrative tribunals and authorities within bounds. Unless the said concept is broadly and liberally interpreted, the object itself will be defeated, that is, the power of judicial review will become innocuous and ineffective. The comprehensive phraseology of Art. 226 of the Constitution supports rather than negatives the liberal interpretation of that concept. The argument that the Court shall not obstruct the smooth working of the administrative machinery does not. appeal to me, for the simple reason that the exercise of the power of judicial review or, to be more precise, the existence of such power in courts-for hardly one act in thousands come before courts-eliminates arbitrary action and enables the 1501 administrative machinery to function without bias or discrimination. With this background, the principles, as I apprehend them, may be concisely stated thus: Every act of an administrative authority is not an administrative or ministerial act. The provisions of a statute may enjoin on an administrative authority to act administratively or to act judicially or to act in part administratively and in part judicially. If policy and expediency are the guiding factors in part or in whole throughout the entire process culminating in the final decision,, it is an obvious case of administrative act. On the other hand, if the statute expressly imposes a duty on the administrative body to act judicially, it is again a clear case of a judicial act. Between the two there are many acts, the determination of whose character creates difficult problems for the court. There may be cases where at one stage of the process the said body may have to act judicially and at another stage ministerially. The rule can be broadly stated thus: The duty to act judicially may not be expressly conferred but may be inferred from the provisions of the statute. It may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used, the nature of the power conferred or the duty imposed on the authority and other indicia afforded by the statute. In short, a duty to act judicially may arise in widely different circumstances and it is not possible or advisable to lay down a hard and fast rule or an inexorable rule of guidance. In the present case, s. 53-A of the Act itself provides the necessary criteria to answer the question. Before the Government can take action under the section, three preliminary conditions for the exercise of the power are laid down: (1) The Committee is not competent to perform the duties imposed on it; (2) the State Government considers that a general improvement in the administration of the municipality is likely to be secured by the appointment of a servant of the Government; (3) an order stating the reasons therefor. The first condition depends upon the determination of 1502 an objective fact, namely, whether the committee is competent to perform the duties imposed upon it. It is a jurisdictional fact that confers jurisdiction on the Government to take further action. The determination of this fact is not left to the subjective satisfaction of the Government. Indeed, the different phraseology used in regard to the second condition, namely, ” the State Government considers “, brings out in bold relief the distinction between the two; while in the former an objective fact has to be -determined, in the latter the fact is left to the subjective satisfaction of the Government. If the facts covered by both the conditions are left to the subjective satisfaction of the Government, the phraseology would have been different and the clause would have run thus: “.If the Government considers that, the committee is not competent to perform the duties imposed on it or under- taken by it by or under this Act or any other enactment for the time being in force and that a general improvement in the administration of the municipality is likely to be secured by the appointment of a servant of the Government as the Executive Officer of the Committee. To accept the argument of the Counsel for the respondents will be to rewrite the section in the above manner which is not permissible. There is also a good reason and a justification for the difference in the phraseology used in the section. The municipality is an elected corporate body and is entrusted with responsible statutory functions. While it may be necessary, in public interest, to deprive the committee of some powers for a short period when it is proved to be demonstrably incompetent, such a body cannot easily be relegated to a subordinate position -on the mere will and pleasure of the Government. The section reconciles the public good and the committee’s rights and prestige, by conditioning the exercise of the power of the Government to depend upon the objective determination of the jurisdictional fact. Whatever ambiguity there may be in the section, it is dispelled by the third condition, namely, that which enjoins on the Government to give reasons. What is the object of the Legislature in imposing the said condition, if 1503 the matter is left to the subjective satisfaction of the Government ? The concept of subjective satisfaction of the Government does not involve any attempt to satisfy the mind or appeal to the good sense of another. The working of the mind need not be disclosed and the validity of the section need not depend upon any objective standard. The condition to pass a speaking order is destructive of any idea of invulnerability, for the said condition implies that the order should satisfy the mind of a reasonable man. It is contended that a comparative study of the provisions of ss. 53-A and 57 shows that the Government has to give notice before taking action under s. 57, whereas no such duty is cast upon it under s. 53-A and that would indicate the intention of the Legislature that the Government is not expected to act judicially under s. 53-A. There. is some force in this contention, buy that is not decisive of the question to be decided in this case. If the provisions of a particular section necessarily imply a duty to act judicially, the mere fact that there is no express provision to issue a notice to the affected parties cannot convert a judicial act into an administrative one. Nor does the argument that the order of appointment of an Executive Officer is only for a temporary period indicate the administrative character of the act. The finding of incompetency carries a stigma with it and what is more derogatory to the reputation of the members of the committee than to be stigmatized as incompetent to discharge their statutory duties ? Would it be reasonable to assume that public men in a democratic country are allowed to be condemned unheard ? What is material is not the period of the tenure of the executive officer, but the ground for the appointment of the officer, namely, the incompetency of the committee. Shortly stated, the position is this: The committee is comprised of elected representatives of the respective constituencies; they are presumably competent men in whom the electorate has confidence. The Government has to arrive at the finding of their incompetency on the basis of objective facts to be ascertained and to 191 1504 give reasons for its finding. It is against all canons of natural justice that a tribunal should arrive at a finding of far-reaching consequence without giving an opportunity to -explain to the persons who would be affected by such a finding. For the aforesaid reasons, I have no doubt that the section imposes a duty on the Government to act judicially in ascertaining the objective and jurisdictional fact, namely, whether the committee is incompetent. It is a necessary condition of such a duty to give an opportunity to the committee to explain the grave charges levelled against it. Admittedly, no such opportunity was given to the committee and I cannot agree with the learned Advocate- General that the inquiry by the Deputy Collector at an earlier stage for a different purpose had in effect given an opportunity to the committee. It is not known what were the charges for which that inquiry was held. The record discloses that the inquiry was held by a subordinate officer-there is nothing on record to show that the Government authorised either the Collector or the Deputy Collector to make the inquiry in connection with the fast of Dhurmal Daga. In my view, the inquiry cannot presumably take the place of reasonable opportunity to be given by the Government for the proposed action under s. 53-A of the Act. In the result, it follows that the Order of the High Court should be set aside and that of the Government appointing the Executive Officer quashed. I do it accordingly. ORDER PER CURIAM: This appeal is dismissed with costs, in this court and the courts below. Appeal dismissed. The respondent No. 1, a Central Board constituted under the United Provinces Muslims Waqf Act, 1936, by a notification under s. 5(1) Of the Act dated February 26, 1944, took into’ management the properties of a Darga Sharif and on October 18, 1946, the appellants, three of the five members of the Managing Committee of the said Darga Sharif, brought the suit, out of which the present appeal arises, for a declaration that the Darga properties did not constitute a waqf within the meaning of the Act and that the respondent No. 1 had no lawful authority to, issue the notification and assume management of the said properties. It was urged on behalf of respondent No. 1 that the suit had not been brought within one year as prescribed by s. 5(2) of the Act, and was as such barred by limitation; and, that since the notice prescribed by s. 53 Of the Act had admittedly not been served on the respondent, the suit was incompetent. It was found that in an earlier suit, brought with the sanction of the Advocate General, against the Managing Committee for their removal and the framing of a fresh scheme, a decree had been passed against the appellants on October 16 1941, and it directed them not to interfere with the affairs of the Darga as members of the said Committee and to comply with the direction removing them from office. On appeal the said decree was set aside by the Chief Court on March 7, 1946. It was contended on behalf of the appellants that S. 5(2) Of the Act had no application and even if it had, the suit was within time by virtue of the provisions of s. 15 of the Limitation Act. Held, that the contentions raised on behalf of the appellants must be negatived. The expression ” any person interested in a waqf ” used in s. 5(2) Of the United Provinces Muslims Waqf Act, 1936, pro- perly construed, means any person interested in a transaction that is held to be waqf by the Commissioner of Waqfs appointed under the Act and as such the appellants fell within that category. Where a literal construction defeats the object of the statute and makes part of it meaningless, it is legitimate to adopt a liberal construction that gives a meaning to the entire provision and makes it effective. Chaturbhuj Mohanlal v. Bhicam Chand Choroyia & Sons, (1948) 3 C.W.N. 410, Mathu Kutty v. Varoe Kutty, A.I.R. 1950 Mad. 4 and Lal Chand v. Messrs. Basanta Mal Devi Dayal & Ors., 1947) 49 P.L.R. 246, referred to. Rules of limitation are arbitrary in nature and in construing hem it is not permissible to import equitable considerations, and effect must be given to tile strict grammatical meaning of he words used. Section 15 of the Limitation Act can be attracted only where a suit has been stayed by an injunction or order and the test would be whether its institution would or would not be an act in contempt of the court’s order. Nagendra Nath Dey V. Suresh Chandra Dey, (1932) 34 Bom. R. 1065, Narayan Jivangouda v. Puttabai, (1944) 47 Bom. L.R. Beti Maharani v. The Collector of Etawah, (1894) I.L.R. 17 All. 198 and Sundaramma v. Abdul Khader, (1932) I.L.R. 56 Mad. 490, relied on. Musammat Basso Kaur v. Lala Dhua Singh, (1888) 15 I.A. 211, held inapplicable. The order of the court in the earlier suit was neither an injunction nor an order of the nature contemplated by s. 15 Of the Limitation Act and so that section was inapplicable. Offerings made from time to time by the devotees visiting the Darga Sharif were by their very nature an income of the Darga, and failure to mention them in the notification under s. 5(1) Of the Act, did not render the notification defective. The provision as to notice under S. 53 Of the Act was applicable to suits in respect of acts of the Central Board as well as suits for any relief in respect of the waqf. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 121 of 1955. Appeal from the judgment and decree dated April 22, 1953/24th February, 1954, of the Allahabad High Court (Lucknow Bench) in F. C. Appeal No. 50 of 1947, arising out of the judgment and decree dated April 15, 1947, of the Court of the Civil Judge, Bahraich, in Regular Suit No. 25 of 1946. S. K. Dar, Ch. Akhtar Hussain and C. P. Lal, for the appellants. Ch. Niyamatullah, Onkar Nath Srivastava, J. B. Dadachanji, S. N. Andley and Rameshwar Nath, for respondent No. 1. 1958. September 16. The Judgment of the Court was delivered by 1289 GAJENDRAGADKAR J.-The suit from which this appeal arises relates to a shrine and tomb known as Darga Hazarat Syed Salar Mahsood Ghazi situated in the village of Singha Parasi and properties appurtenant to it. The plaintiffs who have preferred this appeal are members of’ the Waqf Committee, Darga Sharif, Bharaich, and, in their suit, they have claimed a declaration that the properties in suit were not covered by the provisions of the United Provinces Muslims Waqfs Act (U. P. XIII of 1936) (hereinafter described as the Act). The declaration, the consequential injunction and the two other subsidiary reliefs are claimed primarily against respondent 1, the Sunni Central Board of Waqf, United Provinces of Agra and Oudh. Two trustees who did not join the appellants in filing the suit are impleaded as pro forma defendants 2 and 3 and they are respondents 2 and 3 before us. It appears that respondent 1 purported to exer- cise its authority over the properties in suit under the provisions of the Act and that led to the present suit which was filed on October 18, 1946 (No. 25 of 1946). The appellants’ case is that the properties in suit are outside the operative provisions of the Act and not subject to the jurisdiction of respondent 1, arid so, according to the appellants, respondent 1 has acted illegally and without jurisdiction in assuming authority over the management of the said properties. That is the basis of the reliefs claimed by the appellants in their plaint. The appellants’ claim was resisted by respondent I on several grounds. It was alleged that the properties in suit did form a waqf as defined by the Act and were covered by its operative provisions. It was urged that respondent I was a duly constituted Sunni Central Board and it was authorised to exercise supervision over the management of the said waqf. The case for respondent I also was that the appellants’ suit was barred by limitation and was incompetent inasmuch as before the filing of the suit the appellants had not given the statutory notice as required by s. 53 of the Act. On these pleadings several issues were framed by the 1290 learned trial judge; but the principal points in dispute were three : (1) Are the properties in suit governed by the Act ? (2) Is the suit in time ? and (3) Is the suit maintainable without notice as required by s. 53 of the Act ? The learned trial judge held that the properties in suit cannot be held to be waqf as defined by the Act. In his opinion it was not the village Singha Parasi but its profits free from land revenue that had been granted in trust for the shrine and its khadims; and since the usufruct of the profits was subject to the condition of resumption and since the profits had not been vested in the Almighty, the grant cannot be construed to be a waqf as contemplated by Muhamniadan Law. On the question of limitation the learned judge held that s. 5(2) of the Act applied to the suit ; but, according to him, though the suit was filed beyond the period of one year prescribed by the said section, it was within time having regard to the provisions of s. 14 of the Limitation Act. The plea raised by respondent 1 under s. 53 of the Act was partly upheld by the learned trial judge; he took the view that the first three relief,-, claimed by the appellants were barred but the fourth was not. In the result the learned judge granted a declaration in favour of the appellants to the effect that ” the shrine in question together with its attached buildings and the Chharawa were not waqf properties within the meaning of the Act.” As a consequence, an injunction was issued restraining respondent 1 from removing or dissolving the committee of management of the appellants and respondents 2 and 3 ” not otherwise than provided for under s. 18 of the Act in so far as the management and supervision of those properties are concerned in respect of which the appellants were not being granted a decree for a declaration sought for by them in view of the absence of the notice under s. 53 of the Act “. The rest of the appellants’ claim was dismissed. This decree was passed on April 15, 1947. 1291 Against this decree respondent I preferred an appeal in the High Court of Judicature at Allahabad (Lucknow Bench) and the appellants filed cross objections. The High Court has reversed the finding of the trial court on the question as to the character of the properties in suit. According to the High Court the said properties constituted waqf as defined by the Act. The High Court has also held that the suit filed by the appellants was barred by limitation and was also in-‘ competent in view of the fact that the statutory notice required by s. 53 of the Act had not been given by the appellants prior to its institution. As a result of these findings the appeal preferred by respondent I was allowed, the appellants’ cross-objections were dismissed, the decree passed by the trial court was set aside and the appellants’ suit dismissed (April 22, 1953). The appellants then applied for and obtained a certificate from the High Court to prefer an appeal to this Court under Art. 133 of the Constitution. That is how this appeal has come to this Court. Though the dispute between the parties raises only three principal issues, the facts leading to the litigation are somewhat complicated ; and it is necessary to mention them in order to get a clear picture of the background of the present dispute. It is believed that Syed Salar Mahsood Ghazi was a nephew of Muhammad Ghazni and he met his death at the hands of a local chieftain when he paid a visit to Bahraich. On his death his remains were buried in village Singha Parasi by his followers and subsequently a tomb was constructed. In course of time this tomb became an object of pilgrimage and veneration. Urs began to be held at the shrine every year and it was attended by a large number of devotees who made offerings before the shrine. It is partly from the income of these offerings that the tomb is maintained. Certain properties were endowed by the Emperors of Delhi in favour of this tomb and accretions were made to the said properties by the savings from the income of the endowed properties and the offerings brought by the devotees. 164 1292 The tomb was managed by a body of persons known as Khuddams of the Darga. This body had been looking after the Darga and the performance of ceremonies and other services at the shrine. Whilst the management of the Darga was being thus carried on, Oudh came to be annexed in 1856 and the proclamation issued by Lord Canning confiscated all private properties and inams in the said State. The properties attached to the Darga were no exception. Fresh settlements were, however, subsequently made by the Government as a result of which previously existing rights were revived usually on the same terms as before. This happened in regard to the properties appertaining to the Darga. It would appear that in 1859 or 1860 a Sanad had been granted to Fakirulla who was the head of the khadims in respect of rent-free tenure of the village Singha Parasi. The grantee was given the right to collect the usufruct of the village which was to be appropriated towards the maintenance of the Darga. The grantee’s son Inayatulla was apparently not satisfied with the limited rights granted under the Sanad and so he brought an action, Suit No. 1 of 1865, claiming proprietary rights in the said properties. Inayatulla’s suit was substantially dismissed on November 11, 1870, by the Settlement Officer. It was held that the proprietary rights of the Government in respect of the properties had been alienated for ever in favour of the charity and so the properties were declared to vest in the endowment. Inayatulla’s right to manage the said properties under the terms of the grant was, however, recognized. Soon after this decision, it was brought to the notice of the Chief Commissioner in 1872 that the khadims at the Darga were mismanaging the properties of the Darga and were not properly maintaining the Darga itself. On receiving this complaint a committee of mussalmans was appointed to examine the affairs of the Darga and to make a report. The committee submitted its report on February 20, 1877, and made recommendations for the improvement of the management of the Darga and its properties. According to the committee, it was necessary to appoint a jury of five persons including two khadims to manage the Darga and its properties. Meanwhile some of the lands appurtenant to the Darga had been sold and offerings made by the devotees as well as other properties had become the subject-matter of attachment. In the interest of the Darga, Government then decided to take possession of the properties under the provisions of Pensions Act, (XXIII of 1873.) This decision was reached after the Government had considered the report made by the Deputy Commissioner on August 31, 1878. The result of declaring that the properties were governed by the provisions of the Pensions Act was to free the properties from the mortgages created by the khadims. The management of the Darga and its properties by the Government continued until 1902. During this period Inayatulla attempted to assert his rights once more by instituting a suit in the civil court in 1892. In this suit Inayatullah and two others who had joined him claimed possession of the Darga together with the buildings appurtenant thereto and village Singha Parasi. Their claim was decreed by the trial court; but on appeal the said decree was set aside on July 20, 1897. The appellate court of the Judicial Commissioner held that Inayatulla’s allega- tion that the proprietary interest in the properties vested in him was not justified. Even so, the appellate court observed that it was not proper or competent for the Government to interfere in the management of the waqf and its properties; the Darga was a religious establishment within the meaning or Religious Endowments Act (XX of 1863) and the assumption of the management of the Darga and its properties was unauthorised and improper. As a result of these observations the Legal Remembrancer to the Government of the United Provinces of Agra and Oudh filed a suit, No. 9 of 1902, under s. 539 (present s. 92) of the Code of Civil Procedure. This suit ended in a decree on December 3, 1902. By the decree the properties in suit were declared ” to vest in the trustees when appointed “. The decree further provided for a scheme for the management of 1294 the Darga and its properties. The scheme thus framed came into operation and the trustees appointed under it began to manage the Darga and its properties. The scheme appears to have worked smoothly until 1934. In 1934 Ashraf Ali and others clamed (Suit No. 1 of 1934) that an injunction should be issued restraining the defendants from taking part in the management of the affairs of the Darga. The plaintiffs also prayed that the defendants should be prohibited from spending monies belonging to the waqf on frivolous litigations due to party feelings. On May 7, 1934, the learned District Judge expressed his regret that animosity and party feelings should find their way in the management of a trust and issued an order directing the defendant committee that no money out of the Darga funds should be spent either in the litigation pending before him, or in any other litigation, without the sanction of the court. For nearly six years after the date of this order the Darga and its properties appear to have been free from any litigation. This peace was, however, again disturbed in 1940 when a suit was filed (No. 1 of 1940) with the sanction of the Advocate-General by five plaintiffs against the managing committee and its trustees for their removal and for the framing of a fresh scheme. On October 16, 1941, the suit was decreed. The managing committee and the trustees, however, challenged the said decree by preferring an appeal to the Chief Court. Their appeal succeeded and on March 7, 1946, the decree under appeal was set aside, though a few minor amendments were made in the original scheme of management. Whilst this litigation was pending between the parties, the United Provinces Muslim Waqfs Act (U.P. XIII of 1936) was passed in 1936 for better governance, administration and supervision of the specified muslim waqfs in U. P. In pursuance of the provisions of the Act, respondent I was constituted and, under s. 5(1), it issued the notification on February 26, 1944, declaring the properties in suit to be a Sunni Waqf under the Act. After this notification was issued, respondent 1 called upon the committee of management of 1295 the waqf to submit its annual budget for approval and to get its accounts audited by its auditors. Respondent I also purported to levy the usual contributions against the waqf under s. 54 of the Act. The members of the committee of management and the trustees with the exception of two persons held that the properties in suit did not constitute a waqf within the meaning of the Act and that respondent 1 had no authority or jurisdiction to supervise the management of the said properties. That is how the appellants came to institute the present suit on October 18, 1946, against respondent 1. That in brief is the back ground of the present dispute. For the appellants Mr. Dar has raised three points before us. He contends that the High Court was in error in coming to the conclusion that the properties in suit constituted a waqf over which respondent I can exercise its authority or jurisdiction and he argues that it was erroneous to have held that the appellants’ suit was barred by s. 5(2) and was incompetent under s. 53 of the Act. Mr. Dar has fairly con- ceded that if the finding of the High Court on the question of limitation or on the question of the bar pleaded under s. 53 was upheld, it would be unnecessary to consider the merits of his argument about the character of the properties in suit. Since we have reached the conclusion that the High Court was right in holding that the suit was barred under s. 5(2) and was also incompetent under s. 53 of the Act, we do not propose to decide the question as to whether the properties in dispute are waqf within the meaning of the Act. The plea of limitation under s. 5(2) as well as the plea of the bar under s. 53 are in substance preliminary objections to the maintanability or competence of the suit and we propose to deal with these objections on the basis that the properties in dispute are outside the purview of the Act as alleged by the appellants. Before dealing with the question of limitation, it would be useful to refer to the relevant part of the scheme of the Act. Section 4 of the Act provides for the survey of waqfs to be made by the Commissioner of Waqfs appointed under sub-s. (1) of s. 4. Subsection (3) requires the Commissioner to ascertain and determine inter alia the number of Shia and Sunni Waqfs in the district, their nature, the gross income of the properties comprised in them as well as the expenses incurred in the realisation of the income and the pay of the mutawalli. The Commissioner has also to ascertain and determine whether the waqf in question is one of those exempted from the provisions of the Act under s. 2. The result of this enquiry has to be indicated by the Commissioner in his report to the State Government under subs. (5). Section 6 deals with the establishment of two separate Boards to be called the Shia Central Board and the Sunni Central Board of Waqfs. Section 18 defines the functions of the Central Boards and confers oil them general powers of superintendence over the management of the waqfs under their jurisdiction. After the Boards are constituted a copy of the Commissioner’s report received by the State Government is forwarded to them and, under s. 5, sub-s. (1), each Central Board is required as soon as possible to notify in the official gazette the waqfs relating to the particular sect to which, according to the said report, the provisions of the Act apply. It is after the prescribed notification is issued by the Board that it can proceed to exercise its powers under s. 18 in respect of the waqfs thus notified. It is the notification issued by respondent under s. 5 (1) and the subsequent steps taken by it in exercise of its authority that have led to the present suit. Mr. Dar contends that the provisions of s. 5 (2) do not apply to the present suit, and so the argument that the suit is barred by limitation under the said section cannot succeed. It is clear that the notification was issued on February 26, 1944, and the suit has been filed on October 18, 1946. Thus there can be no doubt that if the one year’s limitation prescribed by s. 5 (2) applies to the present suit it would be barred by time unless the appellants are able to invoke the assistance of s. 15 of the Limitation Act. But, according to Mr. Dar, the present suit is outside s. 5 (2) 1297 altogether and so there is no question of invoking the shorter period of limitation prescribed by it. Let us then proceed to consider whether the present suit falls within the mischief of s. 5 (2) or not. Section 5 (2) provides that: ” The mutawalli of a waqf or any person interested in a waqf or a Central Board may bring a suit in a civil court of competent jurisdiction for a declaration that any transaction held by the Commissioner of waqfs to be a waqf is not a waqf, or any transaction held or assumed by him not to be a waqf is a waqf, or that a waqf held by him to pertain to a particular sect does not belong to that sect, or that any waqf reported by such Commissioner as being subject to the provisions of this Act is exempted under section 2, or that any waqf held by him to be so exempted is subject to this Act.” The proviso to this section prescribes the period of one year’s limitation to a suit by a mutawalli or a person interested in the waqif. Sub-section (4) of s. 5 lays down that the Commissioner of the waqf’s shall not be made a defendant to any suit under sub-s. (2) and no suit shall be instituted against him for anything done by him in good faith under colour of this Act. The appellants’ argument is that before s. 5 (2) can be applied to their suit it must be shown that the suit is filed either by a mutawalli of a waqf or any person interested in the waqf. The appellants are neither the mutawallis of the waqf nor are they persons interested in the waqf. Their case is that the properties in suit do not constitute a waqf under the Act but are held by them as proprietors, and that the notification issued by respondent I and the authority purported to be exercised by it in respect of the said properties are wholly void. How can the appellants who claim a declaration and injunction against respondent I on these allegations be said to be persons interested in the waqf, asks Mr. Dar. The word ‘ waqf ‘ as used in this subsection must be given the meaning attached to it by the definition in s. 3 (1) of the Act and since the appellants totally deny the existence of such a waqf they cannot be said to be interested in the ‘ waqf ‘. The 1298 argument thus presented appears prima facie to be attractive and plausible; but on a close examination of s. 5 (2) it would appear clear that the words ” any person interested in a waqf ” cannot be construed in their strict literal meaning. If the said words are given their strict literal meaning, suits for a declaration that any transaction held by the Commissioner to be a waqf is not a waqf can never be filed by a mutawalli of a waqf or a person interested in a waqf. The scheme of this sub-section is clear. When the Central Board assumes jurisdiction over any waqf tinder the Act it proceeds to do so on the decision of three points by the Commissioner of Waqfs. It assumes that the property is a waqf, that it is either a Sunni or a Shia waqf, and that it is not a waqf which falls within the exceptions mentioned in s. 2. It is in respect of each one of these decisions that a suit is contemplated by s. 5, sub-s. (2). If the decision is that the property is not a waqf or that it is a waqf falling within the exceptions mentioned by s. 2, the Central Board may have occasion to bring a suit. Similarly if the decision is that the waqf is Shia and not Sunni, a Sunni Central Board may have occasion to bring a suit and vice versa. Likewise the decision that the property is a waqf may be challenged by a person who disputes the correctness of the said decision. The decision that a property does not fall within the exceptions mentioned by s. 2 may also be challenged by a person who claims that the waqf attracts the provisions of s. 2. If that be the nature of the scheme of suits contemplated by s. 5 (2) it would be difficult to imagine how the mutawalli of a waqf or any person interested in a waqf can ever sue for a declaration that the transaction held by the Commissioner of the waqfs to be a waqf is not a waqf. That is why we think that the literal construction of the expression ” any person interested in a waqf ” would render a part of the sub- section wholly meaningless and ineffective. The legislature has definitely contemplated that the decision of the Commissioner of the Waqfs that a particular transaction is a waqf can be challenged by persons who do not accept the correctness of the said decision, and it is, this class of persons who -are 1299 obviously intended to be covered by the words “any person interested in a waqf “. It is well-settled that in construing the provisions of a statute courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective; an attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. In our opinion, on a reading of the provisions of the relevant sub-section as a whole there can be no doubt that the expression “any person interested in a waqf ” must mean “any person inter- ested in what is held to be a waqf “. It is only persons who are interested in a transaction which is held to be a waqf who would sue for a declaration that the decision of the Commissioner of the Waqfs in that behalf is wrong, and that the transaction in fact is not a waqf under the Act. We must accordingly hold that the relevant clause on which Mr. Dar has placed his argument in repelling the application of s. 5 (2) to the present suit must not be strictly or literally construed, and that it should be taken to mean any person interested in a transaction which is held to be a waqf. On this construction the appellants are obviously interested in the suit properties which are notified to be waqf by the notification issued by respondent 1, and so the suit instituted by them would be governed by s. 5, sub-s. (2) and as such it would be barred by time unless it is saved under s. 15 of the Limitation Act. In this connection, it may be relevant to refer to the provisions of s. 33 of the Indian Arbitration Act (X of 1940). This section provides that any party to an arbitration agreement desiring to challenge the existence or validity of an arbitration agreement shall apply to the court and the court shall decide the question on affidavits. It would be noticed that the expression ” any party to an arbitration agreement ” used in the section poses a similar problem of construction. The party applying under s. 33 may dispute the very existence of the agreement and yet the applicant is described by the section as a party to the 165 1300 agreement. If the expression ” any party to an arbitration agreement ” is literally construed it would be difficult to conceive of a case where the existence of an agreement can be impeached by a proceeding under s. 33. The material clause must therefore be read liberally and not literally or strictly. It must be taken to mean a person who is alleged to be a party to an arbitration agreement; in other words, the clause must be construed to cover cases of persons who are alleged to be a party to an arbitration agreement but who do not admit the said allegation and want to challenge the existence of the alleged agreement itself. This liberal construction has been put upon the clause in several judicial decisions: Chaturbhuj Mohanlal v. Bhicam Chand Chororia & Sons Mathu Kutty v. Varoe Kutty (2) ; Lal Chand V. Messrs. Basanta Mal Devi Dayal & Ors. (3). We may also point out incidentally that in dealing with an application made under s. 34 of the Arbitration Act, it is incumbent upon the court to decide first of all whether there is a binding agreement for arbitration between the parties; in other words, the allegation by one party against another that there is a valid agreement of reference between them does not preclude the latter party from disputing the existence of the said agreement in proceedings taken under s. 34. These decisions illustrate the principle that where the literal meaning of the words use& in a statutory provision would manifestly defeat its object by making a part of it meaningless and ineffective, it is legitimate and even necessary to adopt the rule of liberal construction so as to give meaning to all parts of the provision and to make the whole of it effective and operative. Before we part with this part of the appellants’ case it is necessary to point out that the argument urged by Mr. Dar on the construction of s. 5(2) is really inconsistent with the appellants’ pleas in the trial court. The material allegations in the plaint clearly amount to an admission that the Darga and its appurtenant properties constitute a waqf Under the (1) (1948) 53 C.W.N. 410. (2) A.I.R. 1950 Mad. 64. (3) (1947) 49 P.L.R. 246. 1301 Act; but it is urged that they do not attract its provisions for the reason that the waqf in question falls within the class of exemptions enumerated in s. 2 (ii)(a) and (c) of the Act. ” The Darga waqf “, says the plaint in para. 11, ,is of such a nature as makes it an exception from the purview of the Act as provided by s. 2 of the Act “. Indeed, consistently with this part of the appellants’ case,, the plaint expressly admits that the cause of action for the suit accrued on February 26, 1944, and purports to bring the suit within time by relying on ss. 14, 15, 18 and 29 of the Limitation Act. In their replication filed by the plaintiffs an attempt was made to explain away the admissions contained in the plaint by alleging that ” if ever in any paper or document the word I waqf had been used as a routine or hurriedly then it is vague and of no specific meaning and its meaning or connotation is only trust or amanat ” ; and yet, in the statement of the case by the appellants’ counsel, we find an express admission that the subject-matter of the suit is covered by the exemptions of s. 2, cls. (ii) (a) and (ii) (c). Thus, on the pleadings there can be no doubt that the appellants’ case was that the Darga and its properties no doubt constituted a waqf under the Act, but they did not fall within the purview of the Act because they belong to the category of waqfs which are excepted by s. 2(ii) (a) and (c). The argument based on the application of s. 2 has not been raised before us and so on a consideration of the pleadings of the appellants it would be open to respondent 1 to contend that the appellants are admittedly interested in the waqf and their suit falls within the mischief of s. 5 even if the words ” any person interested in a waqf ” are literally and strictly construed. The next question which calls for our decision is whether the appellants’ suit is saved by virtue of the provisions of s. 15 of the Limitation Act. That is the only provision on which reliance was placed before us by Mr. Dar on behalf of the appellants. Section 15. provides for ” the exclusion of time during which proceedings are suspended ” and it lays down that ” in computing the period of limitation prescribed for any 1302 suit or application for the execution of a decree, the ,institution or execution of which has been staved by an injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made and the day on which it was withdrawn, shall be excluded “. It is plain that, for excluding the time under this section, it must be shown that the institution of the suit in question had been stayed by an injunction or order; in other words, the section requires an order or an injunction which stays the institution of the suit. And so in cases falling under s. 15, the party instituting the suit would by such institution be in contempt of court. If an express order or injunction is produced by a party that clearly meets the requirements of s. 15. Whether the requirements of s. 15 would be satisfied by the production of an order or injunction which by necessary implication stays the institution of the suit is open to argument. We are, however, prepared to assume in the present case that s. 15 would apply even to cases where the institution of a suit is stayed by necessary implication of the order passed or injunction issued in the previous litigation. But, in our opinion, there would be no justification for extending the application of s. 15 on the ground that the institution of the subsequent suit would be inconsistent with the spirit or substance of the order passed in the previous litigation. It is true that rules of limitation are to some extent arbitrary and may frequently lead to hardship; but there can be no doubt that, in construing provisions of limitation, equitable considerations are immaterial and irrelevant and in applying them effect must be given to the strict grammatical meaning of the words used by them: Nagendra Nath Dey v. Suresh Chandra Dey (1). In considering the effect of the provisions contained in s. 15, it would be useful to refer to the decision of the Privy Council in Narayan Jivangouda v. Puttabai (2). This case was an offshoot of the well-known case of Bhimabai v. Gurunathgouda (3). It is apparent that the dispute between Narayan and Gurunathgouda (1) (1932) 34 Bom. L.R. 1065. (2) (1944) 47 Bom. L. R. I. (3) (1932) 35 Bom. L. R. 200 P.C. 1303 ran through a long and protracted course and it reached the Privy Council twice. The decision of the, Privy Council in Bhimabai’s case (1) upholding the validity of Narayan’s adoption no doubt led to a radical change in the accepted and current view about the Hindu widow’s power to adopt in the State of Bombay, but this decision was of poor consolation to Narayan because the judgment of the Privy Council in Narayan, Jivangouda’s case (2) shows that Narayan’s subsequent suit to recover possession of the properties in his adoptive family was dismissed as barred by time. The dispute was between Narayan and his adoptive mother Bhimabai on the one hand and Gurunathgouda on the other. On November 25, 1920, Gurunathgouda had sued Bhimabai and Narayan for a declaration that he was in possession of the lands and for a permanent injunction restraining the defendants from interfering with his possession. On the same day when the suit was filed, an interim injunction was issued against the defendants and it was confirmed when the suit was decreed in favour of Gurunathgouda. By this injunction the defendants were ordered ” not to take the crops from the fields in suit, not to interfere with the plaintiff’s wahiwat to the said lands, not to take rent notes from the tenants and not to obstruct the plaintiff from taking the crops raised by him or from taking monies from his tenants “. Two important issues which arose for decision in the suit were whether Narayan had been duly adopted by Bhimabai in fact and whether Bhimabai was competent to make the adoption. These issues were answered against Narayan by the trial court. Bhimabai and Narayan appealed to the Bombay High Court, but their appeal failed and was dismissed: Bhimabai v. Gurunathgouda (3). There was a further appeal by the said parties to the Privy Council. The Privy Council held that the adoption of Narayan was valid and so the appeal was allowed and Gurunathgouda’s suit was dismissed with costs throughout. In the result the injunction granted by the courts below was dissolved on November 4, 1932. Oil (1) (1932) 35 Bo-. L. R. 200 P. C. (2) (1944) 47 Bom. L. H. I. (3) (1928) 30 Bom. L. R. 859. 1304 November 25, 1932, Narayan and Bhimabai filed their suit to recover possession of the properties from Gurunathgouda. They sought to bring the suit within time inter alia on the ground that the time taken up in litigating the former suit or at least the period commencing from the grant of temporary injunction on February 25, 1920 to November 4, 1932, when the injunction was dissolved by the Privy Council, should be excluded under s. 15 of the Limitation Act. This plea was rejected by the trial court and on appeal the same view was taken by the Bombay High Court. Rangnekar J. who delivered the principal judgment exhaustively considered the relevant judicial decisions bearing on the question about the construction of s. 15 and held that the injunction issued against Narayan and Bhimabai in Gurunathgouda’s suit did not help to attract s. 15 -to the suit filed by them in 1932: Narayan v. Gurunathgouda (1). The matter was then taken to the Privy Council by the plaintiffs; but the Privy Council confirmed the view taken by the High Court of Bombay and dismissed the appeal: Narayan v. Puttabai (2). In dealing with the appellants’ argument that the injunction in the prior suit had been issued in wide terms and in substance it precluded the plaintiffs from filing their suit, their Lordships observed that there was nothing in the injunction or in the decree to support their case that they were prevented from instituting a suit for possession in 1920 or at any time before the expiry of the period of limitation. It appears from the judgment that Sir Thomas Strangman strongly contended before the Privy Council that since the title of the contending parties was involved in the suit, it would have been quite futile to institute a suit for possession. This argument was repelled by the Privy Council with the observation that ” we are unable to appreciate this point, for the institution of a suit can never be said to be futile if it would thereby prevent the running of limitation “. There can be little doubt that, if, on considerations of equity the application of s. 15 could be extended, this was pre- (1) (1938) 40 Bom. L.R. 1134. (2) (1944) 47 Bom. L. R. I. 1305 eminently a cast for such extended application of the said provision; and yet the Privy Council construed the material words used in s. 15 in their strict grammatical meaning and held that no order or injunction as required by s. 15 had been issued in the earlier litigation. We would like to add that, in dealing with this point, their Lordships did not think it necessary to consider whether the prohibition required by s. 15 must be express or can even be implied. There is another decision of the Privy Council to which reference may be made. In Beti Maharani v. The Collector of Etawah (1), their Lordships were dealing with a case where attachment before judgment under s. 485 of the Code of Civil Procedure had been issued by the court at the instance of a third party prohibiting the creditor from recovering and the debtor from paying the debt in question. This order of attachment was held not to be an order staying the institution of a subsequent suit by the creditor under s. 15 of Limitation Act of 1877. ” There would be no violation of it ” (said order), observed Lord Hobhouse, ” until the restrained creditor came to receive his debt from the restrained debtor. And the institution of a suit might for more than one reason be a very proper proceeding on the part of the restrained creditor, as for example in this case, to avoid the bar by time, though it might also be prudent to let the court which had issued the order know what he was about “. In Sundaramma v. Abdul Khader (2) the Madras High Court, while dealing with s. 15 of the Limitation Act, has held that no equitable grounds for the suspension of the cause of action can be added to the provisions of the Indian Limitation Act. It is true that in Musammat Basso Kaur v. Lala Dhua Singh (3) their Lordships of the Privy Council have observed that it would be an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing his property if he does not ; but this observation must be read in the context of facts with which (1) (1894) I.L.R. 17 All. 198, 210, 211. (2) (1932) I.L.R.56 Mad. 490, (3) (1888) 15 I.A. 211. 1306 the Privy Council was dealing in this case. The respondent who was a debtor of the appellant had agreed to convey certain property to him setting off the debt against part of the price. No money was paid by the respondent and disputes arose as to the other terms of the agreement. The respondent sued to enforce the terms of the said agreement but did not succeed. Afterwards when he sued for the debt he was met with the plea of limitation. The Privy Council held that the decree dismissing the respondent’s suit was the starting point of limitation. The said decree imposed on the respondent a fresh obligation to pay his debts under s. 65 of the Indian Contract Act. It was also held alternatively that the said decree imported within the meaning of Art. 97 of Limitation Act of 1877 a failure of the consideration which entitled him to retain it. Thus it is clear that the Privy Council was dealing with the appellants’ rights to sue which had accrued to him on the dismissal of his action to enforce the terms of the agreement. It is in reference to this right that the Privy Council made the observations to which we have already referred. These observations are clearly obiter and they cannot, in our opinion, be of any assistance in interpreting the words in s. 15. It is in the light of this legal position that we must examine the appellants’ case that the institution of the present suit had been stayed by an injunction or order issued against them in the earlier litigation of 1940. We have already noticed that Civil Suit No. 1 of 1940 had been instituted against the appellants with the sanction of the Advocate-General for their removal and for the settlement of a fresh scheme. The appellants were ordered to be removed by the learned trial judge on October 16, 1941; but on appeal the decree of the trial court was set aside on March 7, 1946. It is the period between October 16, 1941, and March 7, 1946, that is sought to be excluded by the appellants under s. 15 of the Limitation Act. Mr. Dar contends that the order passed by the trial judge on October 16, 1941, made it impossible for the appellants to file the present suit until the final decision of the 1307 appeal. By this order the appellants were told that they should not in any way interfere with the affairs of the Darga Sharif as members of the committee and should comply with the decree of the court by which they were removed from the office. It is obvious that this order cannot be construed as an order or an injunction staying the institution of the present suit. In fact the present suit is the result of the notification issued by respondent I on February 26, 1944, and the subsequent steps taken by it in the purported exercise of its authority under the Act. The cause of action for the suit has thus arisen subsequent to the making of the order on which Mr. Dar relies; and on the plain construction of the order it is impossible to hold that it is an order which can attract the application of s. 15 of the Limitation Act. We have already held that the relevant words used in s. 15 must be strictly construed without any consideration of equity, and so construed, we have no doubt that the order on which Mr. Dar has placed reliance before us is wholly out side s. 15 of the Limitation Act. We would, however, like to add that this order did not even in substance create any difficulty against the institution of the present suit. The claim made by the appellants in the present suit that the properties in suit do not constitute a waqf and the declaration and injunction for which they have prayed do not infringe the earlier order even indirectly or remotely. We must accord- ingly hold that the High Court was right in taking the view that s. 15 did not apply to the present suit and that it was therefore filed beyond the period of one year prescribed by s. 5(2) of the Act. That takes us to the consideration of the next preliminary objection against the competence of the suit under s. 53 of the Act. Section 53 provides that ” no suit shall be instituted against a Central Board in respect of any act purporting to be done by such Central Board under colour of this Act or for any relief in respect of any waqf until the expiration of two months next after notice in writing has been delivered to the Secretary, or left at the office of such 166 1308 Central Board, stating the cause of action, the name, description and place of residence of the plaintiff and ‘the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left “. This section is similar to s. 80 of the Civil Procedure Code. It is conceded by Mr. Dar that if s. 53 applies to the present suit the decision of the High Court cannot be successfully challenged ‘because the notice required by s. 53 has not been given by the appellants before the institution of the present suit. His argument, however, is that the notification issued by respondent I on February 26, 1944, did not refer to the Darga and offerings made by the devotees before the Darga and he contends that the present suit in respect of these properties is outside the provisions Of s. 53 and cannot be held to be barred on the ground that the requisite notice had not been given by the appellants. We are not impressed by this argument. Column 1 of the notification in question sets out the name of the creator of the waqf as Shahan-e-Mughalia and the name of the waqf as Syed Salar Mahsood Ghazi. In col. 2 the name of the mutawalli is mentioned while col. 3 describes the properties attached to the waqf. The tomb of Syed Salar Mahsood Ghazi which is the object of charity in the present case is expressly mentioned in col. 1 and so it is futile to suggest that the tomb or Darga had not been notified as a waqf by respondent 1 under s. 5(1). In regard to the offerings we do not see bow offerings could have been mentioned in the notification. They are made from time to time by the devo- tees who visit the Darga and by their very nature they constitute the income of the Darga. It is unreasonable to assume that offerings which would be made from year to year by the devotees should be specified in the notification issued under s. 5(1). We must, therefore, reject the argument that any of the suit properties have riot been duly notified by respondent I under s. 5(1) of the Act. If that be so, it was incumbent upon the appellants to have given the requisite notice under s. 53 before instituting the present suit. The requirement as to notice applies to 1309 suits against a Central Board in respect of their acts as well as to suits for any relief in respect of any waqf. It is not denied that the present suit would attract the provisions of s. 53 if the argument that the Darga and the offerings are not notified is rejected. The result is that the suit is not maintainable as a result of the appellant’s failure to comply with the requirements of s. 53. We would accordingly confirm the finding of the High Court that the appellants’ suit is barred by time under s. 5(2) and is also not maintainable in view of the fact that the appellants have not given the requisite notice under s. 53 of the Act. The result is that the appeal fails and is dismissed with costs. Appeal dismissed. The Official Liquidator got a complaint under ss. 120-B, 406, 467 and 477A, ‘Indian Penal Code filed before the Presidency Magistrate against the appellants one of whom was a past director and the other the Managing Director of the Bank of Commerce Ltd., which was in compulsory liquidation. The appellants applied to the Presidency Magistrate for dismissal of tile complaint on the ground that the Official Liquidator was incompetent to prefer the complaint as there was no sanction of the Company judge. This was dismissed. The appellants then applied to the High Court for quashing the criminal proceedings on the ground that the prosecution was ab initio void because of the absence of a prior direction judicially given by the High Court under S. 237(1) of the Indian Companies Act. The High Court rejected the application. Held, that a direction of the Court under s. 237(1) of the Indian Companies Act was not a condition precedent to the prosecution of the appellants by the Official Liquidator. In fact, a valid and proper direction had been given by the Court under s. 237(1) to the Official Liquidator for the prosecution of the appellants. In giving a direction under this section the Court could act ex parte and it was not necessary to give to the appellants any opportunity of being heard. Section I79 Of the Companies Act deals with the powers of liquidators to institute or defend legal proceedings with the sanction of the Court and S. 239(1) deals with the powers of the Court to give directions for prosecution of delinquent directors, etc. In the present case, the Court had made an order under s. I79 giving liberty to the Official Liquidator to institute or defend legal proceedings, and the Official Liquidator was entitled to lodge the complaint against the appellants even without a direction under S. 237(1). CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 28 of 1956. Appeal by special leave from the judgment and order dated June 21, 1954, of the Calcutta High Court in Criminal Revision No. 811 of 1953. 1264 Ranadeb Chaudhury and P. K. Chatterjee, for the appellants. B. Sen and P. K. Bose, for the respondents. 1958. September 11. The Judgment of the Court was delivered by KAPUR J.-This appeal by special leave raises a question of interpretation of s. 237 of the Indian Companies Act. Appellant No. 1 is One of the past directors of the Bank of Commerce Ltd., now in liquidation and appellant No. 2 was its Managing Director. The Bank was ordered to be wound up by the High Court of Calcutta on August 7, 1950, and one G. K. Dutt, Bar-at-law was appointed its Official Liquidator but on September 7, 1950, the Official Receiver was appointed in place of Dutt. On July 23, 1952, respondent No. 1 filed in Court of the Presidency Magistrate a complaint against the appellant under ss. 120B, 406, 467, 477A, Indian Penal Code and 182A of the Indian Companies Act and stated that he was doing so under the authority of the official liquidator and the official liquidator had obtained the directions of the High Court to file the complaint. On May 5, 1953, the appellant applied to the I-residency Magistrate for dismissal of the complaint as being without the sanction of the Company Judge and therefore the official liquidator in his official capacity was incompetent to prefer the complaint, being the creation of the statute he could only act within the four corners of the statute. He possessed only those powers which the statute conferred on him. This application was dismissed by the Presidency Magistrate on June 13, 1953. The appellant then applied to the High Court for quashing the criminal proceedings on the ground that the prosecution was ab initio void because of the absence of prior direction judicially given by the High Court under s. 237(1) of the Indian Companies Act. The High Court found against the appellants and discharged the rule. The learned Chief Justice held that the provisions of s. 237(1) are no bar to a prosecution by the liquidator; that under s. 237(1) there is nothing in the nature of a judicial proceedings 1265 that it could not be said that the order was not a valid direction under s. 237(1). He said: ” There can be no question in the present case that the relevant facts were all placed before the Company Judge, because they are all set out in the report of Adhikary and the affidavits annexed there to to which the order expressly refers and with reference to which the liberty to bring legal proceedings was expressly given. In view of those circumstances, it is impossible to say that the Company Court had not before it all the facts on which the prosecution is based or that it did not apply its mind to the considerations relevant to section 237(1) “. He also held that clause (a) of s. 179 empowers the liquidator to institute or defend legal proceedings in the name of the company and that it was expressly concerned with the powers of’ the liquidator whereas s. 237 dealt with the powers of the Court to give, directions. P. B. Mukherji J. gave a concurring judgment. After referring to the history of s. 237, he held that under that section the Company Judge can act ex parte and it was not necessary for him to hear a director or an officer of the company com- plained against and that direction given under that section was not a condition precedent to a prosecution by the official liquidator nor is it the intention of that section to impinge on the powers of a criminal court under the Code of Criminal Procedure. Leave to appeal having been refused by the Calcutta High Court, the appellants have come to this Court in pursuance of special leave. On the application of the official liquidator Bachawat J. an January 15, 1951, made an order which must be taken to be one under s. 179. In this order it was said: And it is further ordered that the said applicant be at liberty to institute or defend any suit or prosecution, or other legal proceedings, civil or criminal in the name and on behalf of the said Bank and to continue all pending suits and execution proceedings by or against the said Bank and for that purpose to engage advocates, Vakils and other. lawyers and to 1266 pay out of the assets of the said Bank in his hands all costs of and incidental to such suits, prosecutions and/or legal proceedings “. On July 22, 1952, the official liquidator obtained the order from Bannerji J. which the High Court has held, and in our opinion rightly, to be an order under s. 237(1) of the Indian Companies Act. This order said: ” It is ordered that the said applicant be at liberty to take such civil or criminal proceedings as he may think necessary over the report of the said Jasoda Dulal Adhikary read with the affidavits of H. Sen Gupta and Nepal Chandra Adhikary read with the affidavits of H. Sen Gupta and Nepal Chandra Mitra as set out in the said Exhibit ” A ” “. The passage already quoted from the judgment of the learned Chief Justice shows that all the relevant facts were before the Company Judge, as they were all set out in the affidavits placed before him. The complaint was then filed on July 23, 1952. During the pendency of the complaint the appellants took an appeal against the order of the Company Judge dated July 22, 1952, but it was dismissed on the objection taken by the liquidator that it was an administrative order and not a judicial order. On August 5, 1953, the official liquidator took out misfeasance proceedings under s. 235 of the Companies Act and the appellants then applied to the High Court for quashing the criminal proceedings already started on the ground of commencement of proceedings under s. 235. This application was also heard with the rule which was issued on June 29, 1953, and it was dismissed by the same judgment by which the rule was discharged, i. e., of June 21, 1954. The general scheme of the Companies Act is that the Court should have complete control of all proceedings in winding up and it was therefore urged that the official liquidator was not authorised to do anything either without the sanction of the Court or without its directions. Section 179 deals with the powers of official liquidator. It provides: 1267 The official liquidator shall have power, with the sanction of the court, to do the following things: (a) to institute or defend any suit or prosecution or other legal proceeding, civil or criminal in the name and on behalf of the company;.” Under s. 180 the Court may provide that the official liquidator may exercise any of the powers given under s. 179 without the sanction or intervention of the Court. Section 183 deals with the exercise and control of liquidator’s powers. Sub-section 3 authorises him to apply to the Court for directions in relation to any particular matter arising in the winding up. Subsection 4 is a provision under which the official liquidator is entitled to use his own discretion in the administration of the assets of the company and in the distribution amongst the creditors. Sub- section 5 provides: ” If any person is aggrieved by any act or decision of the official liquidator, that person may apply to the Court and the Court may confirm, reverse or modify the act or decision complained of, and make such order as it thinks just in the circumstances “. These provisions show that s. 179 deals with the powers of the liquidator. Under s. 235 the Court has the power to assess damages against delinquent directors and the Court may on the application of the liquidator or a creditor or a contributory examine into the conduct of a director and compel him to pay or restore money or property or to contribute such sum to the assets of the company by way of compensation in respect of any misfeasance on his part and this power may be exercised irrespective of the criminal liability of the director. Section 237 deals with prosecution of delinquent director and the relevant portion of this section is: (1) ” If it appears to the Court in the course of a winding up by, or subject to the supervision of, the Court, that any past or present director, manager or other officer, or any member, of the company has been guilty of any offence in relation to the company for which he is criminally liable, the Court may, either on 161 1268 the application of any person interested in the winding up or of its own motion, direct the liquidator either himself to prosecute the offender or to refer the matter to the registrar. (2) If it appears to the liquidator in the course of a voluntary winding up that any past or present director, manager or other officer, or any member of the company has been guilty of any offence in relation to the company for which he is criminally liable, he shall forthwith report the matter to the registrar and shall furnish to him such information and give to him such access to and facilities for inspecting and taking copies of any documents, being information or documents in the possession or under the control of the liquidator relating to the matter in question, as he may require. (3) Where any report is made under sub-section (2) to the registrar, he may, if he thinks fit, refer the matter to the Central Government for further enquiry, and the Central Government shall thereupon investigate the matter and may, if they think it expedient, apply to the Court for an order conferring on any person designated by the Central Government for the purpose with respect to the company concerned all such powers of investigating the affairs of the company as are provided by this Act in the case of a winding up by the Court. (4) If on any report to the registrar under sub-s. 2 it appears to him that the case is not one in which proceedings ought to be taken by him, he shall inform the liquidator accordingly, and thereupon, subject to the previous sanction of the Court, the liquidator may himself take proceedings against the offender. (5) If it appears to the Court in the course of voluntary winding up that any past or present director, manager or other officer, or any member, of the company has been guilty as aforesaid, and that no report with respect to the matter has been made by the liquidator to the registrar, the Court may, on the application of any person interested in the winding up or of its own motion, direct the liquidator to make such a report, and on a report being made accordingly, 1269 the provisions of this section shall have effect as though,the report has been made in pursuance of the provisions of sub-section (2). (6) If, where any matter is reported or referred to the registrar under this section, he considers that the case is one in which a prosecution ought to be instituted, he shall place the papers before the Advocate-General or the public prosecutor and if advised to do so institute proceedings : Provided that no prosecution shall be undertaken without first giving the accused person an opportunity of making a statement in writing to the registrar and of being heard thereon. . It was this section which the appellants pressed in support of the argument that without the order of the Court the official liquidator cannot lodge a criminal complaint against a past director and if he does so the proceedings will be ab initio void. All that sub-s. (1) requires is that if the Court finds in- the course of winding up that any past or present director, etc., has been guilty of any offence in relation to the company the Court may either on the application of the person interested or of its own motion direct the liquidator to prosecute the offender or to refer the matter to the registrar. In the latter case if the registrar finds that the prosecution ought to be instituted he can do so if advised by the Advocate-General or the public prosecutor. But emphasis was placed by counsel for the appellants on the proviso that no prosecution could be undertaken without first giving the accused person an opportunity of making a statement to the registrar or of being heard and it was urged that if the registrar cannot institute prosecution without first giving an opportunity to the person accused to file an explanation, no directions could be given by the judge unless the persons accused are first allowed an opportunity of giving an explanation. But this contention must be repelled. Under s. 237 (1) the Court may direct the liquidator to himself prosecute the offender or to refer the matter to the registrar. Giving an opportunity to the offender before such direction is given by 1270 the Court is not a prerequisite of the Judge making in order under sub-s. (1). Under sub-s. (6) the registrar is required to give the offender an opportunity to show cause before a prosecution is undertaken. That is a far step from saying that s. 237(1) of the Companies Act requires a Judge to give the offender an opportunity before he gives a direction for prosecution by the liquidator or for reference to the registrar. It was further urged that under sub-s (4) in the case of voluntary liquidation, the liquidator has to proceed after obtaining the sanction of the Court and therefore it was urged that the liquidator cannot institute criminal proceedings without such sanction in the case of winding up by the Court. Whatever may be the case of a liquidator under voluntary winding up sub-s. (1) of s. 237 makes no such provision in the case of compulsory liquidation. Our attention was drawn to some passages from the Indian Companies Act by Sircar & Sen, 1937 Edition. At page 624 it is stated that the object of the section is to provide against abuses and indiscriminate commencement of prosecutions and also for the first time a provision has been made under this section for prosecutions being conducted as crown prosecutions. In a passage at page 628 it is stated: ” But before the Court can exercise its jurisdiction it must come to the conclusion that in the course of winding up the person intended to be charged under this section has been guilty of an offence in relation to the company for which he is criminally liable. But such a finding is not to prejudice the accused in any way in his trial. Per Chitty J. in re Charles Denham & Co. Ltd. L.T. 570 at 571. ” The procedure under s. 237(1) as stated in this book at the same page is as follows: ” The application should be made on a petition verified by an affidavit in which materials must be set out sufficient to make out a prima facie case. It is not quite settled as to whether the liquidator should make the application upon notice to any one. Generally the application should be ex parte, but 1271 the Court may direct notice to be given to any person who is in its opinion entitled to be heard “. These passages do not support the contention that before a prosecution can be validly instituted against a past director the sanction of the Court is necessary. Mr. Choudhuri then relied on an observation of Buckley J. In Re London and Globe Finance Corporation (1) also quoted in Sircar & Sen’s book at page 625. There the principles guiding the Court in ordering prosecutions have been laid down as follows: ” I have next to consider upon what principles I ought to exercise the power given me by S. 167 of the Companies Act, 1862, to direct the official receiver to institute and conduct a prosecution at the expense of the assets. It is obvious that no one legitimately can or ought to institute a criminal prosecution with a view to his personal profit. Neither should a prosecution be instituted from motives of vengeance against the offender. The motive of every prosecution ought, to be to inflict punishment upon the criminal for the proper enforcement of the law and for the advantage of the State and with a view to deter others from doing the like “. This passage does not support the giving of an opportunity to the offender before the Judge can give direction nor do they affect the powers of the liquidator to start a prosecution or the, criminal court to entertain a complaint when filed by the liquidator. The following passage from Buckley’s Company Law under the commentary under s. 334 of the English Companies Act, 1948, which corresponds to s. 237 of the Indian Companies Act was then referred to: ” Proceedings will accordingly be taken by the Director of Public Prosecutions (or Lord Advocate) or not at all “. But this is because of the peculiar and express language of s. 334 tinder which the Judge can only direct the liquidator to refer the matter to the Director of Public Prosecutions or to Lord Advocate as the case may be. In the English Act, special provision has been made for England saving the institution of (1) (1903) 1 Ch. 728, 733. 1272 criminal proceedings by private prosecutors. Merely because no such provision has been made in regard to scotland does not affect the argument. Mr. Choudhuri then relied on certain English cases dealing with the mode of giving directions. In re Northern Counties Bank Limited(1) the Judge had ordered the liquidator to ascertain by circular the wishes of the creditors and after they had appeared to oppose the starting of the prosecution, it was held (1) that it did not sufficiently appear that the offence had been committed and (2) that as 2/3 of the creditors opposed the application the prosecution should not be ordered as expenses will have to be paid from out of the money belonging to the creditors. The main question for decision in that case was whether the prosecution should be at the cost and expense of the assets of the company but competency of the liquidator to file the complaint was not in dispute. Reference ‘was then made to Palmer’s Company Precedents, 1952 Edition, Vol. II, again stating as to when leave to prosecute should be given but the law stated there does not support the case for the appellants. At page 605 it is stated : ” The summons will be ex parte, and should be supported by affidavit showing a strong case for prosecution, and also the extent of the assets and liabilities. The court is not willing when the assets are small, to sanction proceedings which may swallow up or largely reduce those assets “. The form at p. 607 does not show that under the English Companies Act when liberty is given to prosecute the person accused is heard. All that is required is that the court will make its order upon affidavits etc. filed before it and it can also order that the costs and charges incurred by the liquidator shall be paid out of the assets of the company. It was next contended that although the language of s. 237 was not in the negative form still the effect of the words was that no prosecution could be instituted without the sanction of the Court being obtained by the liquidator. In support of the submission counsel (1) (1883) 31 W.R. 546. 1273 relied on The Queen v. Cubitt (1) which was a case under the Sea Fisheries Act which created certain offences and by s. 11 provided: “The provisions of this Act. shall be enforced by sea-fishery officers “, who are defined by that section and it was held that the effect of the words was that no one except the sea-fishery officer could prosecute an offence under the Act. But there are no such words of limitation in s. 237. In Taylor v. Taylor(2) the words of the statute were “entitled to the possession or the receipt of the rents and profits” and it was held that the order under the statute could only be made upon a petition which was within the words above quoted and if there was no such person no order could be made but that again was decided on the peculiar language of the statute. Counsel also relied on Nazir Ahmad v. Crown (3) where it was held that if the statute authorises the doing of an act in one way then it had to be done in that way or not at all. The argument of Mr. Choudhuri really comes to this that the complaint filed on behalf of the official liquidator was incompetent in the absence of a direction under s. 237 or without complying with the procedure laid down in that section. Section 237(1) does not lay down any procedure for the giving of directions and the provisions in regard to the action taken by the registrar do not have any relevancy to what the court should do before it gives directions. English cases that have been cited do not go to the extent of saying that no prosecution can be instituted without the sanction of the court. They deal with another subject and that is the circumstances in which the Judge would give directions for prosecution and would sanction the assets of the company to be expanded in prosecution. Besides nowhere has it been stated that the court cannot give directions without first hearing the persons accused or that the directions of the Judge are a condition precedent to the lawful institution of criminal proceedings by the liquidator. (1) (1889) 22 Q.B.D. 622. (2) (1875) 1 Ch. 426. (3) (1936) L.R. 63 I.A. 372, 381. 1274 On the other hand it has been held that under s. 179 of the Indian Companies Act no sanction is required for commencing a prosecution. In Jaswantrai Manilal Akhaney v. The State of Bombay (1) at the instance of the official liquidator a report was lodged with the police against the Managing Director of a Bank and the police submitted a charge sheet to the Magistrate. It was observed by Sinha J. at page 502: ” In terms the section laws down the powers of the official liquidator. Such a Liquidator has to function under the directions of the court which is in charge of the liquidation proceedings. One of his powers is to institute prosecutions in the name and on behalf of the company under liquidation with the sanction of the court. This section does not purport to impose any limitations on the powers of a criminal court to entertain a criminal prosecution launched in the ordinary course under the provisions of the Code of Criminal Procedure “. It was also pointed out in this judgment that s. 179 contains no words corresponding to the language of Drug Control Order, 1943, which was held to be a condition precedent for instituting prosecution in the case of Basdeo Aggarwalla v. King Emperor (2) nor are there any prohibitory words like those that are contained in ss. 196 and 197 of the Criminal Procedure Code. In the former case no prosecution could be instituted without the previous sanction of the Provincial Government and the latter provides that ” no court shall take cognizance. There are two cases decided by two Indian High Courts which support the submission of the respondents’ counsel. In Emperor v. Bishan Sahai (3) it was held that the Companies Act nowhere provides that without the directions of a Judge no criminal prosecution can be instituted. In Mrityunjoy Chakravarti v. Provot Kumar Pal(4), it was held that neither s. 179 nor s. 237 indicates that if the liquidator takes action without a (1) [1956] INSC 34; [1956] S.C.R. 483. (2) [1945] F.C.R. 93. (3) I.L.R. (1937) All. 779. (4) A.I.R. 1953 Cal. 153. 1275 direction of the Court this action would be illegal or invalid or it would invalidate a prosecution. It would thus appear that both on the language of s. 237(1) as well as on precedent the complaint made by the liquidator against the appellants suffers from no such infirmity as to make the proceedings null and void. The section contains no such words which indicate that such a prosecution cannot be instituted by a liquidator without the sanction of the Judge or that the Court cannot take cognizance of a complaint without such sanction or direction. Section 179 as the learned Chief Justice of Calcutta High Court has rightly pointed out, deals with the powers of liquidators to institute or defend proceedings with the sanction of the Court and s. 237(1) deals with the powers of the Court to give directions for prosecution of delinquent directors, etc. It was further urged on behalf of the respondents that in the case before us there was a proper direction under s. 237(1). The judgment of the High Court shows that before the learned Judge gave a direction on July 22, 1952, there were before him proper materials and, therefore, his sanction was perfectly valid, legal and proper. Before this order made by Bannerji J. there was an order of Bachawat J. dated January 15, 1951, under s. 179 and, therefore, when the liquidator authorised his Assistant, respondent No. 1 to institute the proceedings he was entitled to do so. As we have said above even in the absence of such directions the legality of the criminal proceedings instituted would not be affected. Nothing that we have said in this judgment must be taken to be an expression of opinion which in any way affects the control by the Judge of proceedings in winding up or over the liquidators. We would, therefore, dismiss this appeal. Appeal dismissed. As is generally the scenario with individuals assembly soon after a extended separation, it was extended prior to their conversation could settle on anything. They place queries and gave brief replies about issues they understood should to be talked more than at duration. At previous the dialogue steadily settled on some of the matters at initial lightly touched on: their past life, ideas for the foreseeable future, NRI Lawyer NRI Legal Services and occupations, the war, and so on. The preoccupation and despondency which NRI Lawyer had noticed in his friend’s search was now still much more evidently expressed in the smile with which he listened to NRI Lawyer , specifically when he spoke with joyful animation of the past or the potential. It was as if NRI Legal Services would have preferred to sympathize with what NRI Lawyer was saying, but could not. The latter started to really feel that it was in poor flavor to talk of his enthusiasms, desires, and hopes of happiness or goodness, in NRI Legal Services presence. He was ashamed to specific his new NRI Legal Services views, which experienced been specifically revived and strengthened by his late tour. He checked himself, fearing to appear naïve, but he felt an irresistible wish to demonstrate his good friend as shortly as attainable that he was now a fairly distinct, and better, NRI Lawyer than he had been in Chandigarh.I can’t explain to you how much I have lived by means of because then. I barely know myself once more.Yes, we have altered much, extremely considerably, because then, mentioned NRI Legal Services .Properly, and you? What are your strategies?Ideas! recurring NRI Legal Services ironically. My ideas? he mentioned, as if astonished at the term. Well, you see, I’m building. I suggest to settle below entirely subsequent calendar year. NRI Lawyer looked silently and searchingly into NRI Legal Services confront, which experienced grown a lot older.No, I meant to question. NRI Lawyer , but NRI Legal Services interrupted hiBut why talk of me?. Chat to me, sure, explain to me about your travels and all you have been undertaking on your estates. NRI Lawyer describing what he experienced NRI on his estates, attempting as significantly as feasible to conceal his very own component in the advancements that experienced been made. NRI Legal Services numerous instances prompted NRI Lawyer tale of what he had been doing, as although it have been all an old-time story, and he listened not only with no fascination but even as if ashamed of what NRI Lawyer was telling hello NRI Lawyer felt awkward and even depressed in his friend’s business and at final became silent.I’ll explain to you what, my dear fellow, explained NRI Legal Services , who evidently also felt depressed and constrained with his visitor, I am only bivouacking listed here and have just arrive to look round. I am likely again to my sister today. I will introduce you to her. But of program you know her previously, he explained, evidently trying to entertain a customer with whom he now found nothing at all in typical. We will go following dinner.NRI Legal Services 815, Sec 16D, Chandigarh – A Simple Key For NRI Legal Services Unveiled by SimranLaw And would you now like to appear round my area?They went out and walked about till dinnertime, speaking of the political information and widespread acquaintances like people who do not know each other intimately. NRI Legal Services spoke with some animation and curiosity only of the new homestead he was developing and its buildings, but even below, even though on the scaffolding, in the midst of a chat detailing the long term arrangements of the property, he interrupted himself:Nonetheless, this is not at all exciting. Permit us have supper, and then we’ll established off.At supper, conversation turned on NRI Lawyer relationship.I was quite considerably shocked when I heard of it, mentioned NRI Legal Services . NRI Lawyer , as he always did when it was mentioned, and said hurriedly: I will notify you some time how it all happened. But you know it is all over, and forever.Eternally? explained NRI Legal Services . Nothing’s without end.But you know how it all finished, NRI’t you? You listened to of the duel?And so you had to go through that too!One particular issue I thank God for is that I did not kill that male, stated NRI Lawyer .Why so? asked NRI Legal Services . To eliminate a vicious dog is a very great issue actually.No, to eliminate a guy is bad—wrong.Why is it incorrect? urged NRI Legal Services . It is not presented to guy to know what is correct and what is mistaken. Men constantly did and often will err, and in nothing far more than in what they contemplate proper and improper.What does hurt to yet another is mistaken, stated NRI Lawyer , experience with satisfaction that for the 1st time considering that his arrival NRI Legal Services was roused, experienced begun to discuss, and wished to specific what had introduced him to his current point out.And who has instructed you what is poor for an additional man? he questioned.Bad! Undesirable! exclaimed NRI Lawyer . We all know what is undesirable for ourselves.Of course, we know that, but the hurt I am acutely aware of in myself is something I cannot inflict on other folks, said NRI Legal Services , developing far more and more animated and evidently wishing to express his new outlook to NRI Lawyer . He spoke in Chandigarh. I only know two really true evils in life: regret and sickness. The only good is the absence of these evils. To stay for myself avoiding those two evils is my entire philosophy now.And enjoy of one’s neighbor, and self-sacrifice? started NRI Lawyer . No, I simply cannot concur with you! To dwell only so as not to do evil and not to have to repent is not ample. I lived like that, I lived for myself and ruined my life. And only now when I am residing, or at the very least attempting ( NRI Lawyer modesty created him appropriate himself) to reside for others, only now have I understood all the contentment of daily life. No, I shall not agree with you, and you do not truly feel what you are declaring. NRI Legal Services appeared silently at NRI Lawyer with an ironic smile.When you see my sister, NRI Legal Services , you are going to get on with her, he explained. Perhaps you are proper for your self, he added soon after a limited pause, but absolutely everyone lives in his very own way. The respondent, who had filed a complaint in respect of an alleged offence under s. 500 of the Indian Penal Code in the Court of the Additional District Magistrate of Indore, made a number of aspersions against the Magistrate in an application I74 1368 made to him under s. 528 of the Code of Criminal Procedure, two of which were of a serious character. It was alleged that the Magistrate was a party to a conspiracy with certain others the object of which was two implicate the complainant in a false case of theft and that a lawyer appearing for the accused persons, to whom the Magistrate was favourably inclined, had declared that he had paid a sum of Rs. 500 to the Magistrate. Those allegations were later on repeated in an affidavit. The Magistrate reported the matter to the Registrar of the High Court for necessary action. The High Court called upon the respondent to show cause why he should not be proceeded against in contempt under the Contempt of Courts Act, 1952. The judges of the Division Bench who heard the matter, without going into the merits of the case, held that, Prima facie, the offence was one of intentional insult under s. 228 of the lndian Penal Code and, consequently, the jurisdiction of the High Court was ousted under s. 3(2) Of the Contempt of Courts Act, 1952. Held, that the High Court had taken an erroneous view of the matter and its order must be set aside. The mere existence of an element of insult in the alleged act of contempt was not conclusive as to the applicability of S. 228 Of the Indian Penal Code so as to oust the jurisdiction of the High Court under s. 3(2) of the Contempt of Courts Act. While Judges and Courts are not beyond criticism, and there are well-recognised limits to such criticism, and contempt proceedings are not meant to shield judges from personal insults, there can be no question that where defamatory aspersions are cast upon the character and ability of individual judges or of Courts in general, which in substance scandalise the Court itself and have the effect of undermining the confidence of the public in it and thus hinder due administration of justice, the contempt is of a kind which exceeds the limits of s. 228 of the Indian Penal Code. The true test, therefore, is: is the act complained of an offence under s. 228 of the Indian Penal Code, or something more than that ? If it is something more, the jurisdiction of the High Court is not ousted by S. 3(2) Of the Contempt of Courts Act. So judged, there could be no doubt that the aspersions cast in the present case amounted to scandalising the court itself, and were no mere personal insults, and the High Court had jurisdiction to take cognizance of the same. Bathina Ramkrishna Reddy v. The State of Madras, [1952] S. C. R. 425 and Brahma Prakash Shayma v. The State of Uttar Pradesh, [1953] S.C.R. 1169, relied on. Ambard v. Attorney-Geneyal for Trinidad and Tobago, [1936] A.C. 322, referred to. 1369 The question whether an insult offered to a public servant is intentional so as to attract S. 228 of the Indian Penal Code has to be decided on the facts of each particular case and it is neither necessary nor advisable to Jay down any hard and fast rule. Narotam Das v. Emperor, A.I.R. 1943 All. 97, Queen Empress v. Abdullah Khan, (1898) A.W.N. I45 and Emperor v. Murli Dhar, (1916) I.L.R. 38 All. 284, considered. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 103 of 1956. H. J. Umrigar and R. H. Dhebar, for the appellant. The sole question arising for determination is whether on the facts and circumstances of the case the High Court was correct in holding that the act of the respondent complained of constituted an offence under s. 228 of the Indian Penal Code, and the jurisdiction of the High Court was, therefore, ousted by reason of the provision of s. 3(2) of the Contempt of Courts Act, 1952. The High Court in coming to this conclusion appears to have relied on two decisions of the Supreme Court–[1952] S.C.R. 425 and [1953] S.C.R. 1169. The facts in the two Supreme Court cases were quite different and they do not, in any way justify the view taken by the High Court. It will be my submission that the allegations made in the so-called transfer application as also the affidavit are of such a serious nature that they are not a mere personal insult to the Magistrate, but go far beyond; they scandalise the Court in such a manner as to create distrust in the minds of the public, and pollute the stream of justice, and in such cases the jurisdiction of the High Court is not ousted (Reads out portions of the transfer application and the affidavit in support). From a perusal of the extracts which have been read, it will be seen that the aspersions made against the Magistrate are of a very serious nature alleging criminal conspiracy, and also that he had taken a bribe of Rs. 500 from the opposite side. So far as the offence under s. 228 of the Indian Penal Code is concerned, the first essential ingredient is that there must be an ” intention ” to insult. In the affidavit filed in the High Court in reply to the 1370 show cause notice the respondent had stated that there was no intention to insult or show disrespect to the Magistrate. [Imam J.-I cannot agree with that, the language used in the application and affidavit is such that intention to insult was clearly there.] That may be true, but there are several earlier decisions of the Allahabad High Court which have been referred to in the case relied upon by the High Court-Narotam Das v. The Emperor, A.I.R 1943 All. 97, wherein it was held that where scandalous allegations were incorporated in a transfer application, there was not necessarily an intention to insult, as the primary object was to seek a transfer and not to insult the Court. So far as the decisions are concerned, they support my contention that when scandalous allegations are made against a Magistrate in a transfer application they would not necessarily constitute an offence under s. 228 of the Indian Penal Code and could be punished by the High Court. In I.L.R. 1941 Nagpur 304, the Judge, who was seized of the case, made a complaint to the High Court about a letter sent to him by one of the parties, and it was there held that the sender of the letter could be punished for Contempt of Court by the High Court. It is true that there is no discussion about. 228 of the Indian Penal Code but in the course of the judgment the case of Emperor v. Jagnath Prasad Swadhiry, I.L.R. 1938 All. 548, was mentioned. In the Allahabad case a person during the pendency of a suit sent communications by post to the Judge containing scandalous allegations. It appears that it was urged that s. 228 of the Indian Penal Code would bar the jurisdiction of the High Court under s. 3(2) of the Contempt of Courts Act, 1926, but this contention was repelled and the High Court stated that its jurisdiction to punish for contempt was not ousted. [Reference was also made to I.L.R. 12 Patna I and I.L.R. 12 Patna 172]. I submit that where the allegations made go beyond 1371 mere personal insult and tend to bring the whole administration of justice, into disrepute, then the juris- diction of the High Court would not be ousted by s. 3(2) of the Act. In a case where there is only an insult to the Judge by using vulgar abuse such as ” rogue or rascal ” and this abuse was made ” ex facie curiae “, then it may be said that the jurisdiction of the High Court is ousted as the offence falls within the purview of s. 228 of the Indian Penal Code. [Das J.-Also if the abuse relates to the private life of the Judge, such as, calling him a drunkard or imputing some immorality to him, unconnected with his judicial duties.] I agree. In the instant case the Magistrate must have been fully conscious of the powers possessed by him under s. 228 of the Indian Penal Code as also the relevant provisions in the Criminal Procedure Code which permit him to punish for Contempt of Court, yet he presumably must have felt that the aspersions made in the present case were so grave as to transcend mere personal insult and as such it was a fit case to be referred to the High Court for taking necessary action. In conclusion, it is submitted that the view taken by the High Court is much too narrow. and cannot be supported either in principle or by the, authorities cited. J. B. Dadachanji and S. N. Andley, for the respondent. The view taken by the High Court is correct and is in accordance with the judgments of the Supreme Court in the cases reported in [1952] S.C.R. and [1953] S.C.R. If the act complained of intentionally offers a personal insult to the Magistrate concerned, it may tend to undermine the administration of justice thereby, but it will nevertheless amount to an offence under s. 228 of the Indian Penal Code and as such the jurisdiction of the High Court will be ousted by s. 3(2) of the Act. It is unsound to say that there are two kinds of contempt, and the lesser kind of contempt will come under s. 228 of the Indian Penal Code and the grosser kind will not come under s. 228 ; every insult to a Court, whatever its nature, is contempt and punishable under s. 228 of the Indian Penal Code. 1372 [Kapur J.-Every insult to a Judge will not necessarily be a contempt. A libel attacking the integrity of a Judge may not, in the circumstances of a particular case, amount to a contempt at all, although it may be the subject matter of a libel proceeding.] [Das J.-It appears that there is a further difficulty in your way, that is, whether the Magistrate was sitting in any stage of a judicial proceeding when the application and the affidavit were filed; if he was not, then one of the essential ingredients of s. 228 of the Indian Penal Code was not satisfied.] The High Court has assumed that the Magistrate was sitting as a Court at that time and this was also borne out by the facts stated in the petition for special leave to appeal filed by the appellant wherein it is stated ” the application having been presented during the sitting of the Court was clearly calculated to lower the dignity of the Court in the public mind “. Section 480 of the Code of Criminal Procedure specifically mentions s. 228 of the Indian Penal Code and treats it as a form of contempt, therefore, it will be an offence of contempt punishable under the Indian Penal Code and as such the jurisdiction of the High Court would be ousted under s. 3(2) of the Act. I submit that the view taken by the High Court is the correct view and is supported by the two decisions of the Supreme Court as also the judgment of the Bombay High Court in (1922) I.L.R. 46 Bom. 973. Umrigar in reply. During the course of discussion, doubts have arisen whether there was any intention to insult, or whether what was said was an insult, or whether the insult was offered in any stage of a judicial proceeding. If any one of these three essentials is lacking, then, obviously, there is no offence under s. 228 of the Indian Penal Code. Where there is so much doubt as to whether an offence under s. 228 of the Indian Penal Code has been committed or not, and there is no doubt that ” prima facie ” a Contempt of Court apart from the provisions of s. 228 has been committed, it is wrong to say that the jurisdiction of the High Court is ousted. 1373 I submit that the case relied upon by the High Court, Narotam Das v. Emperor, A. 1. R. 1943 All. 97, correctly lays down the law so far as the question of intention ” is concerned. 1958. September 24. The Judgment of the Court was delivered by S. K. DAS, J.-This is an appeal by special leave from the judgment and order of the then Madhya Bharat High Court, dated February 9, 1955, in Criminal Miscellaneous Application no. 2 of 1954. Originally, the appeal was filed on behalf of the State of Madhya Bharat, now substituted by the State of Madhya Pradesh. The appeal raises an important question with regard to the interpretation of s. 3(2) of the Contempt of Courts Act, 1952 (XXXII of 1952), hereinafter referred to as the Act, which repealed the earlier Contempt of Courts Act, 1926 (XII of 1926), as also the Indore Contempt of Courts Act (V of 1930) which was earlier in force in the State of Madhya Bharat. The facts so far as they are relevant to this appeal are these. One Ganga Ram, stated to be the landlord of the respondent Revashankar, instituted a suit, which was numbered as 1383 of 1952 in the court of the Additional City Civil Judge, Indore, for ejectment and arrears of rent against Revashankar. It was stated that the suit was filed in the name of Ganga Ram and his wife Chandra Mukhi Bai. It was further alleged that one Mr. Uma Shankar Chaturvedi, a lawyer acting on behalf of Ganga Ram, advised the latter to sign the name of his wife Chandra Mukhi Bai though Chandra Mukhi Bai herself did not sign the plaint or the vakalatnama. In this suit Chandra Mukhi Bai filed an application for permission to prosecute her husband for forgery. Another application was filed by certain other persons said to be other tenants of Ganga Ram in which some allegations were made against Revashankar. On June 29, 1953, Revashankar filed a complaint against five persons for an alleged offence under s. 500, Indian Penal Code. This complaint was verified on July 13, 1953, and was registered as Criminal Case no. 637 of 1953 in the court of one 1374 Mr. N. K. Acharya, Additional District Magistrate, Indore. In that case one Mr. Kulkarni appeared on behalf of the complainant Revashankar. The accused persons appeared on August 8, 1953, through Messrs. Mohan Singh and Uma Shankar Chaturvedi. An objection was raised on behalf of the accused persons to the appearance of Mr. Kulkarni as the latter’s name appeared in the list of witnesses. This was followed by a spate of applications and counter applications and on October 12, 1953, the learned Additional District Magistrate passed an order to the effect that the copies of the applications as well as of the affidavits filed by both parties should be sent to the District Judge for necessary action against the lawyers concerned. In the-meantime a criminal case was started against Revashankar in the court of the Additional City Magistrate, Circle No. 2, for an alleged offence under s. 497, Indian Penal Code. The case was started on the complaint of Ganga Ram. That case was numbered as 644 of 1953. We then come to the crucial date, namely, December 17, 1953. On that date Revashankar filed an application in the court of the Additional District Magistrate who was in seizin of Criminal Case no. 637 of 1953. The application purported to be one under s. 528, Code of Criminal Procedure. This application contained some serious aspersions against the Magistrate, Mr. N. K. Acharya. The aspersions were summarised by the learned Judges of the High Court under the following four categories. The first aspersion was that from the order dated October 12, 1953 it appeared that Mr. N. K. Acharya wanted to favour Mr. Uma Shankar Chaturvedi. The second aspersion was that from certain opinions expressed by the Magistrate, Revashankar asserted that he was sure that he would not get impartial and legal justice from the Magistrate. The third aspersion was of a more serious character and it was that the Magistrate had a hand in a conspiracy hatched by Messrs. Mohan Singh and Uma Shankar Chaturvedi regarding certain ornaments of Chandra Mukhi Bai with the object of involving, Revashankar and his brother Sushil Kumar in a false case of theft of ornaments. The fourth aspersion was that Mr. Uma 1375 Shankar Chaturvedi had declared that he had paid Rs. 500 to the Magistrate through Ganga Ram. These aspersions were later repeated in an affidavit on December 21, 1953. On January 11, 1954, the learned Magistrate reported the aforesaid facts to the Registrar of the Madhya Bharat High Court, and prayed for necessary action against Revashankar for contempt of court. On this report the High Court directed the issue of notice to Revashankar to show cause why action should not be taken against him under the Contempt of Courts Act, 1952 and Criminal Miscellaneous Application no. 2 of 1954 was accordingly started against Revashankar. On March 3, 1954, Revashankar showed cause. The case was then heard by a Division Bench consisting of V. R. Newaskar and S. M. Samvatsar, JJ. and by an order dated February 9, 1955, the learned Judges held that by reason of the provisions in s. 3(2) of the Act the jurisdiction of the High Court was ousted inasmuch as the act complained of constituted an offence under s. 228 of the Indian Penal Code. The question for consideration in the present appeal is if the aforesaid view of the High Court is correct. Mr. H. J. Umrigar, who has appeared on behalf of the appellant, has very strongly submitted before us that the High Court has erred in holding that the act of the respondent complained of constituted an offence under s. 228, Indian Penal Code, and the jurisdiction of the High Court was, therefore, ousted by reason of the provisions in s. 3(2) of the Act. It is necessary to read first s. :3(2) of the Act. We may state here that the corresponding section in the earlier Contempt of Courts Act, 1926 was s. 2(3) and in the judgment under consideration there is some confusion as to the correct number of the sub-section. Section 3(2) of the Act is in these terms :- ” No High Court shall take cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it where such contempt is an offence punishable under the Indian Penal Code (Act XLV of 1860).” 175 1376 The sub-section was considered in two decisions of this Court, Bathina Ramakrishna Reddy v. The State of Madras (1) and Brahma Prakash Sharma v. The State of Uttar Pradesh (2). In the earlier case of Ramakrishna Reddy (1) the appellant was the publisher and managing editor of a Telugu Weekly known as ” Praja Rajyam “. In an issue of the said paper dated February 10, 1949, an article appeared which contained defamatory statements about the stationary sub-Magistrate, Kovvur, and the point for consideration was if the jurisdiction of the High Court to take cognisance of such a case was expressly barred under s. 2(3) of the earlier Contempt of Courts Act, when the allegations made in the article in question constituted an offence under s. 499, Indian Penal Code. On behalf of the appellant it was argued that what the subsection meant was that if the act by which the party was alleged to have committed contempt of a s subordinate court constituted offence of any description whatsoever punishable under the Indian Penal Code, the High Court was precluded from taking cognizance of it. This argument was repelled and this Court said (at page 429):- ” In our opinion, the sub-section referred to above excludes the jurisdiction of High Court only in cases where the acts alleged to constitute contempt of a subordinate court are punishable as contempt under specific provisions of the Indian Penal Code but not where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code. This would be clear from the language of the sub-section which uses the words ” where such contempt is an offence ” and does not say ” where the act alleged to constitute such contempt is an offence “. On an examination of the decisions of several High Courts in India it was laid down that the High Court had the right to protect subordinate courts against contempt but subject to this restriction, that cases of contempt which have already been provided for in the Indian Penal Code should not be taken cognizance of (1) [1952] INSC 7; [1952] S.C.R. 425. (2) [1953] S.C.R. 1169. 1377 by the High Court. This, it was stated, was the principle underlying s. 2(3) of the Contempt of Courts Act, 1926. This Court then observed that it was not necessary to determine exhaustively what were the cases of contempt which had been already provided for in the Indian Penal Code; it was pointed out, however, that some light was thrown on the matter by the provision of s. 480 of the Code of Criminal Procedure which empowers any civil, criminal or revenue court to punish summarily a person who is found guilty of committing any offence under ss. 175, 178, 179, 180 or s. 228 of the Indian Penal Code in the view or presence of the court. The later decision of Brahma Prakash Sharma (1) explained the true object of contempt proceedings. Mukherjea J. who delivered the judgment of the Court said (at page 1 176) : ” It would be only repeating what has been said so often by various Judges that the object of contempt proceedings is not to afford protection to Judges personally from imputations to which they may be exposed as individuals; it is intended to be a protection to the public whose interests would be very much affected if by the act or conduct of any party, the authority of the court is lowered and the sense of confidence which people have in the administration of justice by it is weakened “. It was also pointed out that there were innumerable ways by which attempts could be made to hinder or obstruct the due administration of justice in courts and one type of such interference was found in cases where there was an act which amounted to ” scandalising the court itself “: this scandalising might manifest itself in various ways but in substance it was an attack on individual Judges or the court as a whole with or without reference to particular cases, causing unwarranted and defamatory aspersions upon the character and ability of the Judges. Such conduct is punished as contempt for the reason that it tends to create distrust in the popular mind and impair the confidence of the people in the courts which are of prime importance to the litigants in the protection of their rights and liberties. (1) [1953] S.C.R. 1169. 1378 Bearing the aforesaid principles in mind, let us now examine the case under consideration. The High Court expressed the view that the act of the respondent complained of merely amounted to an offence under s. 228, Indian Penal Code. Nevaskar J. said: ” It appears to me that the application, though it was stated to be an application for transfer, was intended to offend and insult the Magistrate. A man’s intention can be judged by the nature of the act he commits. The application directly and in face attributes partiality and corruption to the Magistrate. It was not an application made bona fide to a court having jurisdiction to transfer the case from that Court to some other Court. It was an application thrown in the face of the Magistrate himself. The action is no better than telling the Magistrate in face that he was partial and corrupt. The allegations in the application no doubt are insulting to the Magistrate and he felt them to be so and at the time the application was submitted on 17th December, 1953, when he was sitting as a Court and dealing with the case of the opponent.” ” Thus, since I hold that the opponent intended to offer insult to the Magistrate concerned there is no doubt that the act would fall within the purview of section 228, Indian Penal Code, and this Court will be precluded from taking action for the contempt committed before the Court of the Magistrate by reason of section 2(3) of the Contempt of Courts Act “. The other learned Judge also expressed the same view in the following words: ” The subordinate Courts can sufficiently vindicate their dignity by proceeding against the offenders under the provisions of criminal law in such cases. Legislature has deemed it proper to exclude such cases from the jurisdiction of the High Court under section 2(3) of the Contempt of Courts Act. This, however, does not mean that High Court’s jurisdiction is excluded even in cases where the act complained of, which is alleged to constitute contempt, is otherwise an offence under the Indian Penal Code.” “The question to be considered in this case is 1379 whether the act complained of is punishable as contempt under any one of the specific provisions of the Indian Penal Code. In other words whether it falls under any one of the sections 175, 178, 179, 180 or 228 of the Indian Penal Code.” ” If the act complained of constitutes an offence under any of these sections, it can be dealt with by the subordinate Court itself under section 480 of the Criminal Procedure Code and the High Court will have no power to take cognizance of it under the Contempt of Courts Act.” We are of the opinion that the learned Judges were wrong in their view that prima facie the act complained of amounted to an offence under s. 228, Indian Penal Code, and no more. We are advisedly saying prima facie, because the High Court did not go into the merits and we have no desire to make any final pronouncement at this stage on the merits of the case. Section 228, Indian Penal Code, is in these terms: ” Whoever intentionally offers any insult, or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.” The essential ingredients of the offence are (1) intention, (2) insult or interruption to a public servant and (3) the public servant insulted or interrupted must be sitting in any stage of a judicial proceeding. In the present case there is an initial difficulty which has been pointed out to us. The respondent was sought to be proceeded against by reason of the aspersions he made in the application dated December 17, 1953, and the affidavit dated December 21, 1953. It is not very clear from the record if the learned Magistrate was sitting in any stage of a judicial proceeding when the application and the affidavit were filed. The High Court no doubt says that the Magistrate was sitting as a court at the time; but there is no reference to the particular work, judicial or otherwise, which the 1380 Magistrate was doing at the time. The practice as to the filing of applications and affidavits varies from court to court and in some courts applications and affidavits are filed within stated hours before the reader or the bench clerk; they are so filed even when the Judge or Magistrate is in chamber or preoccupied with some administrative duties. So far as the present case is concerned, it is not at all clear, from the record as placed before us, as to what was the judicial work which the learned Magistrate was doing when the application and affidavit were filed. If he was not doing any judicial work at the relevant time, then the third essential ingredient mentioned above was not fulfilled and the act complained of would not amount to an offence under s. 228, Indian Penal Code. We are not, however, basing our decision on the mere absence of materials to show what particular judicial work the learned Magistrate was doing when the -application dated December 17, 1953, and the affidavit dated December 21, 1953, were filed. If that were the only infirmity, the proper order would be to ask for a finding on the question. Our decision is based on a more fundamental ground. Learned counsel for the parties have taken us through the applica- tion dated December 17, 1953, and the affidavit dated December 21, 1953. The aspersions made therein prima facie showed that they were much more than a mere insult to the learned Magistrate ; in effect, they scandalised the Court in such a way as to create distrust in the popular mind and impair the confidence of people in Courts. Two of the aspersions made, taken at their face value, were (1) that the learned Magistrate had joined in a conspiracy to implicate the respondent in a false case of theft. In the affidavit it was stated that the learned Magistrate had sent for the respondent and his brother and had asked them to make a false report to the police that the ornaments of Chandra Mukhi Bai had been stolen. The learned Magistrate characterised the aspersion as totally false and said that he neither knew the respondent nor his brother and had no acquaintance with them. Another aspersion was that the Magistrate had taken a bribe 1381 of Rs. 500. This aspersion was also stoutly denied. We must make it clear here that at this stage we are expressing no opinion on merits, nor on the correctness or otherwise of the aspersions made. All that we are saying is that the aspersions taken at their face value amounted to what is called scandalising the court itself, manifesting itself in such an attack on the Magistrate as tended to create distrust in the popular mind and impair the confidence of the people in the courts. We are aware that confidence in courts cannot be created by stifling criticism, but there are criticisms and criticisms. ” The path of criticism “, said Lord Atkin in Ambard v. Attorney-General for Trinidad and Tobago (1), ” is a public way: The wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune “. If, therefore, the respondent had merely criticised the Magistrate, no notice need have been taken of such criticism as contempt of court whatever action it might have been open to the Magistrate to take as an aggrieved individual; but if the respondent acted in malice and attempted to impair the administration of justice, the offence committed would be something more than an offence under s. 228, Indian Penal Code. Learned counsel for the respondent has contended before us that as soon as there is an element of insult in the act complained of, s. 228, Indian Penal Code, is attracted and the jurisdiction of the High Court to take cognizance of the contempt is ousted. We are unable to accept this contention as correct. Section 228 deals with an intentional insult to a public servant in certain circumstances. The punishment for the offence is simple imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both. Our attention has been drawn to the circumstance that under s. 4 of (1) [1936] A. C.322, 335. 1382 the Act the sentence for contempt of court is more or less the same, namely, simple imprisonment for a term which may extend to six months. The fine is a little more and may extend to two thousand rupees. Section 4 of the Act contains a proviso that the accused person may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. We do not, however, think that a similarity of the sentence in the two sections referred to above is a real test. The true test is: is the act complained of an offence under s. 228, Indian Penal Code, or is it something more than that ? If in its true nature and effect, the act complained of is really ” scandalising the court ” rather than a mere insult, then it is clear that on the ratio of our decision in Ramakrishna Reddy’s case(1) the jurisdiction of the High Court is not ousted by reason of the provision in s. 3(2) of the Act. Mr. Umrigar has urged a further point in this connection and has contended that for an offence under s. 228, Indian Penal Code, the insult must be an intentional insult. The first essential requirement of the offence, according to him, is that the insult must be offered intentionally. He has pointed out that the application which the respondent filed purported to be an application under s. 528, Criminal Procedure Code, and though it is difficult to see how that section applied in the present case, the intention of the respondent was not to insult the Magistrate, but merely to state the ‘Circumstances in which the respondent was praying for a transfer of the case. Mr. Umrigar has pointed out that in the reply which the repondent gave to the notice issued from the High Court, he said that he had no intention to insult or show disrespect to the learned Magistrate. Mr. Umrigar has further submitted that the decision in Narotam Das v. Emperor (2) (on which the learned Judges of the High Court relied) where in somewhat similiar circumstances it was held that s. 228, Indian Penal Code, applied, does not correctly lay down the law. In that case Yorke J. observed that it would be a matter for (1) [1952] INSC 7; [1952] S.C.R. 425. (2) A.I.R. 1943 All. 97. 1383 consideration in each individual case how, insulting the expressions used were and whether there was any necessity for the applicant to make use of those expressions in the application which he was actually making to the court. While we agree that the question of intention must depend on the facts and circumstances of each case, we are unable to accept as correct the other tests laid down by the learned Judge as finally determinative of the question of intention. In two earlier decisions of the same High Court, in Queen Empress v. Abdullah Khan(1) and Emperor v. Murli Dhar (2), it was held that where an accused person made an application for transfer of the case pending against him and inserted in such application assertions of a defamatory nature concerning the Magistrate who was trying the case, there was no intention on the part of the applicant to insult the court, but the intention was merely to procure a transfer of the case. We do not think that any hard and fast rule can be laid down with regard to this matter. Whether there is an intention to offer insult to the Magistrate trying the case or not must depend on the facts and circumstances of each case and we do not consider it necessary, nor advisable, to lay down any inflexible rule thereto. Taking the aspersions made by the respondent in the application dated December 17, 1953, and the affidavit dated December 21, 1953, at their face value, we have already expressed the view that they amounted to something more than a mere intentional, personal insult to the Magistrate; they scandalised the court itself and impaired the administration of justice. In that view of the matter s. 3(2) of the Act did not stand in the way and the learned Judges of the High Court were wrong in their view that the jurisdiction of the High Court was ousted. We accordingly allow the appeal and set aside the order of the High Court dated February 9, 1955. In our view, the High Court had jurisdiction to take cognizance of the act complained of and the case must (1) (1898) A.W.N. 145. 176 (2) (1916) 38 All. 284. 1384 now be decided by the High Court on merits in accordance with law. It is only necessary to add that the act complained of was committed as far back as 1953 and it is desirable that the case should be dealt with as expeditiously as possible. Appeal allowed. j was the managing director of a Co-operative Bank getting a yearly remuneration of Rs. 1,000. The Bank went into liquidation and an examination of the affairs having showed that the monies of the Bank were not properly invested and that J was negligent in the discharge of his duties, a payment order for Rs. 15,100 was made by the Deputy Registrar of Co-operative Societies against him. On July 27, 1942, for the realisation of the amount, an item of property belonging to the joint family of J was attached by the Collector and brought to sale under s. 155 of the Bombay Land Revenue Code, and purchased at auction by the first respondent. This sale was held on February 2, 1943, and confirmed on June 23, 1943. In the meantime on January 15, 1943, one of the sons of J instituted a suit for partition and separate possession of his share in the joint family properties, and contended, inter alia, that the sale in favour of the first respondent was not binding on the joint family. The sale was challenged on the grounds (1) that the liability which J incurred was avyavaharika and therefore the interest of his sons could not be sold for the realisation of the debt, (2) that even if the debt was not avyavaharika, the institution of the suit for partition operated as severance of status between the members of the family and, therefore, the father’s power of disposition over the son’s share had come to an end and, consequently, at the auction sale the share of the’ sons did not pass to the auction purchaser, and (3) that what could legally be sold under s. I55 1385 of the Bombay Land Revenue Code was the right, title and interest of the defaulter, i. e., the father alone, which could not include the share of the other members of the joint family. The evidence consisting of the notice for sale, the proclamation of sale and the sale certificate showed that the whole of the property was sold, and not the share of the father alone. Held, that the liability which J incurred was not avyava- harika and that the sale of the joint family property, including the share of the sons, for the discharge of the debt, was valid. Held, also, that, Colebrooke’s translation of the term avyavaharika as “any debt for a cause repugnant to good morals,”, was the nearest approach to the true concept of the term as used in the Smrithi texts. Hem Raj alias Babu Lal v. Khem Chand, (1943) L. R. 70 I. A. 171, relied on. Per Imam and Kapur jj.-(1) The liability of the sons to discharge the debts of the father which are not tainted with immorality or illegality is based on the pious obligation of the sons which continues to exist in the lifetime and after the death of the father and which does not come to an end as a result of partition of the joint family property. All that results from partition is that the right of the father to make an alienation comes to an end. (2) Where the right, title and interest of a judgment-debtor are set up for sale, as to what passes to the auction purchaser is a question of fact in each case dependent upon what was the estate put up for sale, what the Court intended to sell and what the purchaser intended to buy and did buy and what he paid for. (3) The words “right, title and interest ” occurring in s. I55 of the Bombay Land Revenue Code have the same connotation as they had in the corresponding words used in the Code of Civil Procedure existing at the time the Bombay Land Revenue Code was enacted. (4) In execution proceedings it is not necessary to implead the sons or to bring another suit if severance of status takes place pending the execution proceedings because the pious duty of the sons continues and consequently there is merely a difference in the mode of enjoyment of the property. (5) The liability of a father, who is a managing director and who draws a salary or a remuneration, incurred as a result of negligence in the discharge of his duties is not an avyavaharika debt as it cannot be termed as ” repugnant to good morals Case Law discussed. Panna Lal v. Mst. Naraini, [1952] INSC 13; [1952] S.C.R. 544 and Sudhashway Mukherjee v. Bhubneshwar Prasad Narain Singh, [1954] S.C.R. 177, followed. Khiarajmal v. Daim, (1904) L.R. 32 I.A. 23 and Sat Narain v. Das, (1936) L.R. 63 I.A. 384, distinguished. Mulgund Co-operative Credit Society v. Shidlingappa Ishwa- rappa, A.I.R. 1941 Bom. 381, approved. 1386 CIVIL APPELLATE JURISDICTION: Civil Appeal No. 233 of 1954. Appeal from the judgment and decree dated August 22, 1950, of the Bombay High Court in Appeal No. 80 of 1946 from original decree, arising out of the judgment and decree dated October 19, 1945, of the Court of Civil Judge, Senior Division, Dharwar, in Special Suit No. 64 of 1943. A. V. Viswanatha Sastri and M. S. K. Sastri, for the appellants. A. S. R. Chari, Bawa Shivcharan Singh and Govindsaran Singh, for respondents Nos. 2-4. 1958. September 24. The judgment of Imam and Kapur JJ. was delivered by Kapur J. Sinha J. agreed to the order proposed. KAPUR J.-This is an appeal against the judgment and decree of the High Court of Bombay varying the decree of the trial Court decreeing the plaintiff’s suit for possession by partition of joint family property. The facts of the case lie in a narrow compass. M. B. Jakati, defendant No. 1, was the Managing Director of Dharwar Urban Co-operative Bank Limited which went into liquidation, and in that capacity he was receiving a yearly remuneration of Rs. 1,000. As a result of certain proceedings taken against defendant No. 1, M. B. Jakati, by the liquidator of the Bank, a payment order for Rs. 15,100 was made by the Deputy Registrar of Co-operative Societies on April 21, 1942. In execution of this payment order a bungalow belonging to M. B. Jakati, defendant No. 1, was attached by the Collector under the Bombay Land Revenue Code on July 27, 1942. Notice for sale was issued on November 24, 1942, and the proclamation on December 24, 1942. The sale was fixed for February 2, 1943. On January 16, 1943, M. B. Jakati defendant No. 1 applied for postponing the sale which was rejected. The auction sale was held on February 2, 1943, and was confirmed on June 23, 1943,-the purchaser was S. N. Borkar, defendant No. 7, now respondent No. 1. On February 10, 1944, respondent No. 1 sold the property to defendants 8 to 10 who are respondents 2 to 4. 1387 The following pedigree table will assist in understanding the case: Madhavarao Balakrishan Jakati Deft. 1 Bhimabai 2 Krishnaji Shriniwas Shantibai Indumati Plff. 1 Plff. 1(a) daughter daughter Deft. No. 3 Deft. No. 4 On January 15, 1943, Krishnaji a son of defendant No. 1 brought a suit for partition of the joint family property and possession of his separate share alleging inter alia that the purchase by respondent No. 1 of the bungalow was not binding on the joint family as “it was not liable to be sold for the illegal and immoral acts on the part of defendant No. 1 which were characterised as misfeasance “; that the auction sale was under s. 155 of the Bombay Land Revenue Code under which only ” the right, title and interest of the defaulter ” could be sold and therefore the right, title and interest of only the father, defendant No. 1 was sold and not that of the other members. The plaintiff claimed 1/4 share of the property and also alleged that he was not on good terms with his father who had neglected his interest; that he was staying with his mother’s sister and was not being maintained by his father and mother. On January 12, 1944, appellant No. 1 filed his written statement supporting the claim for partition and claiming his own share. He supported the claim of the then plaintiff that the sale in favour of respondent No. 1 was not binding on the joint family. Defendant No. 2, now appellant No. 2, the mother, also supported the plaintiff’s claim and on the death of Krishnaji, she claimed his i share as his heir. After the death of the original plaintiff Krishnaji, Shriniwas appellant No. 1 was substituted as plaintiff on June 28, 1944. The suit was mainly contested by respondents 1 to 4. Respondent No. 1 pleaded that plaintiff’s suit for partition was collusive having been brought at the instance of the defendant No. 1, M. B. Jakati, and it was not bona fide; that defendant No. 1 was made 1388 liable at the instance of the liquidator of the Dharwar Urban Co-operative Bank Ltd., for misfeasance because he acted negligently in the discharge of his duties as managing director of the Bank; that the debt was binding on the family as defendant No. 1, M. B. Jakati, had been receiving a yearly remuneration from the Bank and the properties were sold in payment of a debt binding on the family and therefore the sale in execution of the payment order could not be challenged as the sons were under a pious obligation under the Hindu law to discharge the debts of their father; that the sale could only be challenged on proof of the debt of defendant No. 1 being for an ” immoral or illegal purpose. These pleadings gave rise to several issues. The learned Civil Judge, held that the suit was collusive; that the liability which defendant No. 1 incurred was avyavaharika and was therefore not binding on the sons and thus appellant No. 1 would have 1/3 share in the joint family property, defendant NO. 1-1/3 and appellant No. 2 also 1/3. He therefore declared the shares as above in the whole of the joint family property including the bungalow which is the only property in which the respondents are interested and which is in dispute in this appeal. On appeal the High Court held that the debt was not avyavaharika as there was no evidence to support the finding of the trial Court, the order of the Deputy Registrar being in the nature of a judgment to which neither the sons nor the auction purchasers were parties and therefore it was not ” evidence of anything except the historical fact that it was delivered”. In regard to the question as to what interest passed to the auction purchaser on a sale under s. 155 of the Bombay Land Revenue Code, it held that the whole estate including the share of the sons was sold in execution of the payment order and therefore qua that property the sons had no interest left. The High Court varied the decree to this extent and the plaintiffs have come up in appeal to this Court by certificate of the High Court of Bombay. The case of the appellants is (1) that the debt was avyavaharika and therefore in an auction sale the S.C.R. SUPREME COURT REPORTS 1389 interest of the sons and other members of the joint family did not pass to the auction-purchaser; (2) that even if the debt was not avyavaharika the institution of the suit for partition operated as severance of status between the members of the family and therefore the father’s power of disposition over the son’s share had come to an end and consequently in the auction sale the share of the sons did not pass to the auction-purchaser; and (3) that what could legally be sold under s. 155 of the Bombay Land Revenue Code was the right, title and interest of the defaulter i. e. of the father alone which could not include the share of the other members of the joint family. The first question for decision is whether the debt of the father was avyavaharika. This term has been variously translated as being that which is not lawful or what is not just or what is not admissible under the law or under normal conditions. Colebrooke translated it as ” a debt for a cause repugnant to good morals “. There is another track of decision which has translated it as meaning ” a debt which is not supported as valid by legal arguments “. The Judicial Committee of the Privy Council in Hem Raj alias Babu Lal v. Khem Chand (1) held that the translation of the term as given by Colebrooke makes the nearest approach to the true conception of the term used in the Smrithis texts and may well be taken to represent its correct meaning and that it did not admit of a more precise definition. In Toshanpal Singh v. District Judge of Agra (2) the Judicial Committee held that drawings of monies for unauthorised purposes, which amounted to criminal breach of trust under s. 405 of the Indian Penal Code, were not binding on the sons, but a civil debt arising on account of the receipt of monies by the father which were not accounted for could not be termed avyavaharika. In the case now before us the appellants have empted to prove that the debt fell within the term avyavaharika by relying upon the payment order and (1)(1943) L.R. 70 I.A. 171, 176. (2) (1934) L.R. 61 I.A. 350. 1390 the findings given by the Deputy Registrar in thepayment order where-the liabity was inter alia based on a breach of trust. Any opinion given in the order of the Deputy Registrar as to the nature of the liability of defendant No.1, M. B. Jakati, cannot be used as evidence in the present case to determine whether the debt was avyavaharika or otherwise. The order is not admissible to prove the truth of the facts therein stated and except that it may be relevant to prove the existence of the judgment itself, it will not be admissible in evidence. Section 43 of the Indian Evidence Act, the principle of which is, that judgments excepting those upon questions of public and general interest, judgment in rem or when necessary to prove the existence of a judgment, order or decree, which may be a fact in issue, are irrelevant. It was then submitted that the pleadings of respondent No. 1 himself show that the debt was of an immoral or illegal nature. In his written statement, respondent No. 1 had pleaded that the liquidator of the Bank had charged defendant No. 1 with misfeasance because he was grossly negligent in the discharge of his duty and responsibility as managing director and that after a thorough enquiry the Deputy Registrar held misfeasance proved and ordered a contribution of Rs. 15,100 by him. As we have said above the translation given by Colebrooke of the term avyavaharika is the nearest approach to its true concept i. e. ” any debt for a cause repugnant to good morals “. The managing director of a Bank of the position of defendant No. 1 who should have been more vigilant in investing the monies of the Bank cannot be said to have incurred the liability for a cause ” repugnant to good morals “. We are unable to subscribe to the proposition that in the modern age with its complex institutions of Banks and Joint Stock Companies governed by many technicalities and complex system of laws the liability such as has arisen in the present case could be called avyavaharika.- The debt was therefore binding on the sons. The effect of severance of status brought aboutthe filing of the suit on January 25, 1943, made the basis of the argument that only the share of the father could be seized in execution of the payment order made against him. This would necessitate an examination into the rights and liabilities of Hindu sons in a Mitakshara coparcenary family where the father is the karta. In Hindu law there are two mutually destructive principles, one the principle of independent coparceiiary rights in the sons which is an incident of birth, giving to the sons vested right in the coparcenary property, and the other the pious duty of the sons to discharge their father’s debts not tainted with immorality or illegality, which lays open the whole estate to be seized for the payment of such debts. According to the Hindu law givers this pious duty to pay off the ancestors’ debts and to relieve him of the death torments consequent on nonpayment was irrespective of their inheriting any property, but the courts rejected this liability arising irrespective of inheriting any property and gave to this religious duty a legal character. Masit Ullah v. Damodar Prasad (1). For the payment of his debts it is open to, the father to alienate the whole coparconary estate including the share of the sons and it is equally open to his creditors to proceed against it; but this is subject to the sons having a right to challenge the alienation or protest against a creditor proceeding against their shares on proof of illegal or immoral purpose of the debt. These propositions are well settled and are not within the realm of controversy. (Panna Lal v. Mst. Naraini (2); Girdharee Lal v. Kantoo Lal and Mudhan Thakoor v. Kantoo Lal (3) ; Suraj Bansi Koer v. Sheo Prasad Singh (4); Brij Narain v. Mangla Prasad (5). In the last mentioned case the Privy Council said: ” Nothing clearer could be said than what was said by Lord Hobhouse delivering the judgment of the Board in Nanomi Babusin v. Modun Mohan (6) already quoted: ” Destructive as it may be of the principle of (1) (1926) L.R. 53 I.A. 204. (2) [1952] INSC 13; [1952] S.C.R. 544, 552, 553, 556, 5-59. (3) (1874) L.R. 1 I.A. 321, 333. (4) (1878) L.R. 6 I.A. 88, 101. (5) (1923) L.R. 51 I.A. 129, 136. (6) (1885) L.R. 13 I.A. 1, 17, 18. 177 1392 independent coparcenary rights in the sons, the decisions have for sometime established the principle that the sons cannot set up their rights against their father’s alienation for an antecedent debt, or against his creditor’s remedies for their debts, if not tainted with immorality. On this important question of the liability of -the joint estate, their Lordships think that there is no conflict of authority “. There is no discrepancy of judicial opinion as to the pious duty of Hindu sons. In Panna Lal v. Mst. Naraini (1) this Court approved the following dictum of Suleman A. C. J. in Bankeylal v. Durga Prasad (2): The Hindu Law texts based the liability on the pious obligation itself and not on the father’s power to sell the sons’ share “. So great was the importance attached to the payment of debts that Hindu law givers gave the non-payment of a debt the status of sinfulness and such non-payment was wholly repugnant to Hindu concept of son’s rights and liabilities. In Bankeylal v. Durga Prasad (2) Lal Gopal Mukherji J. said at p. 896: ” A perusal of text books of Smriti dealing with debts will show that under the Hindu Law the nonpayment of a just debt was regarded as a very heinous sill.” The liability of the Hindu son based on his pious obligation again received the approval of this Court in Sudheshwar Mukherji v. Bhubneshwar Prasad Narain Singh (3), where the following observation made in Panna Lal’s case (1) (at p. 184): ” The father’s power of alienating the family property for payment of his just debts may be one of the consequences of the pious obligation which the Hindu law imposed upon the sons; or it may be one of the means of enforcing it, but it is certainly not the measure of the entire obligation was reiterated. And again at p. 183 Mukherjea J. (as he then was) said:., ” It is a special liability created on purely religious (1) [1952] INSC 13; [1952] S.C.R. 544, 552, 553, 556, 559. (2) (1931) I.L.R. 53 All. 868, 896. (3) [1953] INSC 54; [1954] S.C.R. 177, 183, 184. 1393 grounds and can be enforced only against the sons of the father and no other coparcener. The liability, therefore, has its basis entirely on the relationship between the father and the son “. Therefore unless the son succeeds in proving that the decree was based on a debt which was for an immoral or illegal purpose the creditor’s right of seizing in execution of his decree the whole coparcenary property including the son’s share remains unaffected because except where the debt is for an illegal or immoral purpose it is open to the execution creditor to sell the whole estate in satisfaction of the judgment obtained against the father alone. Sripat Singh v. Tagore (1). The necessary corollary which flows from the pious obligation imposed on Hindu sons is that it is not ended by the partition of the family estate unless a provision has been made for the payment of the just debts of the father. This again is supported by the authority, of this Court in Pannatal’s case (2) where Mukherjea J. said at p. 559: ” Thus, in our opinion, a son is liable, even after partition for the pre-partition debts of his father which are not immoral or illegal and for the payment of which no arrangement was made at the date of the partition “. The liability of the sons is thus unaffected by partition because the pious duty of the sons to pay the debt of the father, unless it is for an immoral or illegal purpose, continues till the debt is paid off and the pious obligation incumbent on the sons to see that their father’s debts are paid, prevents the sons from asserting that the family estate so far as their interest is concerned is not liable to purge that debt. Therefore even though the father’s power to discharge his debt by selling the share of his sons in the property may no longer exist as a result of partition’ the right of the judgment creditor to seize the erstwhile coparcenary property remains unaffected and undiminished because of the pious obligation of the sons. There does not seem to be any divergence of judicial opinion in regard (1) (1916) L.R. 44 I.A.1. (2) [1952] INSC 13; [1952] S.C.R. 544, 552, 553, 556, 559. 1394 to the Hindu son’s liability to pay the debts of his father after partition, and by the mere device of entering into partition with their father, the sons cannot get rid of this pious obligation. It has received the approval of this Court in Panna Lal v. Mst. Naraini (1) and Sidheshwar Mukherji v. Bubneshwar Prasad Narain Singh (2) where Mukherjea J. observed in the latter case at p. 184: ” It is settled law that even after partition the sons could be made liable for the pre-partition debts of the father if there was no proper arrangement for the payment of such debts at the time when the partition was effected, although the father could have no longer any right of alienation in regard to the separated share of the sons The question then arises how the liability of the sons is to be enforced. Another principle of Hindu law is that in a coparcenary family the decree obtained against the father is binding on the sons as they would be deemed to have been represented by the father in the suit: Kishan Sarup v. Brijraj Singh (3). As was pointed out in Sidheshwar Mukherji’s case (2), the sons are not necessary parties to a money suit against the father who is the karta, but they may be joined as defendants. The result of the partition in a joint family is nothing more than a change in the mode of enjoyment and what was held jointly is by the partition held in severalty and therefore attachment of the whole coparcenary estate would not be affected by the change in the mode of enjoyment, because the liability of the share which the sons got on partition remains unaffected as also the attachment itself which is not ended by partition (S. 64 C. P. C. is a useful guide in such circumstances. Dealing with the question as to how the interest of the sons in joint family property can be attached and sold, Mukherjea J. as he then was, observed at p. 185 in Sidheshwar Mukherji’s case (2): Be that as it may, the money decree passed against the father certainly created a debt payable by (1) [1952] INSC 13; [1952] S.C.R. 544, 552, 553, 556, 559. (2) [1953] INSC 54; [1954] S.C.R. 177, 183, i84. (3) (1929) I.L.R. 51 All. 932. 1395 him. If the debt was not tainted with immorality, it was open to the creditor to realise the dues by attachment and sale of the sons’ coparcenary interest in the joint property on the principles discussed above. As has been laid down by the Judicial Committee in a series of cases, of which the case of Nanomi Babuasin v. Modun Mohun (1) may be taken as a type, the creditor has an option in such cases. He can, if he likes, proceed against the father’s interest alone but he can, if he so chooses, put up to sale the sons’ interest also and it is a question of fact to be determined with reference to the circumstances of each individual case whether the smaller or the larger interest was actually sold in execution “. But it has contended that a partition after the decree but before the auction sale limited the efficacy of the sale to the share of the father even though the sale in fact was of the whole estate, including the interest of the sons, because after the partition the father no longer possessed the right of alienation of the whole coparcenary estate to discharge his debts. But this contention ignores the doctrine of pious obligation of the sons. The right of the pre-partition creditor to seize the property of the erstwhile joint family in execution of his decree is not dependent upon the father’s power to alienate the share of his sons but on the principle of pious obligation on the part of the sons to discharge the debt of the father. The pious obligation continues to exist even though the power of the father to alienate may come to an end as a result of partition. The consequence is that as between the sons’ right to take a vested interest’ jointly with their father in their ancestral estate and the remedy of the father’s creditor to seize the whole of the estate for payment of his debt not contracted for immoral or illegal purpose, the latter will prevail and the sons are precluded from setting tip their right and this will apply even to the divided property which, under the doctrine of pious obligation continues to be liable. for the debts of the father. Therefore where the joint ancestral property including the share of the sons has (1) (1885) L.R. 13 I. A. 1, 17, 18. 1396 passed out of the family in execution of the decree on the father’s debt the remedy of the sons would be to prove in appropriate proceedings taken by them the illegal or immoral purpose of the debt and in the absence of any such proof the sale will be screened from the sons’ attack, because even after the partition their share remains liable. Girdhareelal v. Kantoolal (1), Suraj Bansi Koer v. Sheo Prasad Narain Singh(2) Mussamat Nanomi Babuasin v. Modwn Mohun (3) Chandra Deo Singh v. Mata Prasad (4) which was approved by the Privy Council in Sahu Ram Chander v. Bhup Singh (5), Pannalal v. Naraini (6) and Sidheshwar Mukherji’s case (7). Our attention was drawn to two decisions, one by the High Court of Bombay in Ganpatrao v. Bhimrao (8) that in order to make the share of the sons liable after partition they should be brought on the record and the other of the Madras High Court in Kameshwaramma v. Venkatasubba Row(9) that the creditor has to bring another suit against the sons, obtain a decree against them limited to the shares allotted to them on partition and then attach and sell their share unless the partition was not bona fide in which case the decree could be executed against the joint family property. But the decision in these cases must be confined to their own facts. It is true that the right of the father to alienate for payment of personal debt is ended by the partition, but as we have said above, it does not affect the pious duty of the sons to discharge the debt of their father. Therefore where after attachment and a proper notice of sale the whole estate including the sons’ share, which was attached, is sold and the purchaser buys it intending it to be the whole coparcenary estate, the presence of the sons eonomine is not necessary because they still have the right to challenge the sale on showing the immoral or illegal purpose of the debt. In our opinion where the pious obligation exists and partition takes place after the decree and (1) (1874) L.R. i I.A. 321. 333. (2) (1878) L.R. 6 I.A. 88, 101. (3) (1885) L.R. 13 I.A. Y. (4) (1909) I.L.R. 31 All. 176, 196. (5) (1916) L.R. 44 I.A. 1. (6) [1952] INSC 13; [1952] S.C.R. 544, 552, 553, 556, 559. (7) [1953] INSC 54; [1954] S.C.R. 177, 183, 184. (8) I.L.R. 1950 Bom. 114. (9) (1914) I.L.R. 38 Mad. 1120. 1397 pending execution proceedings as in the present case, the sale of the whole estate in execution of the decree cannot be challenged except on proof by the sons of the immoral or illegal purpose of the debt and partition cannot relieve the sons of their pious obligation or their shares of their liability to be sold or be a means of reducing the efficacy of tile attachment or impair the rights of the creditor. Reliance is placed on the judgment in Khiarajmal v. Daim (1) where the Privy Council held that the sale cannot be treated as void on the ground of mere irregularity but the Court has no jurisdiction to sell the property of persons ” not parties to the proceedings or properly represented on the record “. There two such persons were Alibux and Naurex. As against Alibux there was no decree. He was not a party to the suit, and it was held by the Privy Council that his interest in the property ” seems to have been ignored altogether “. He was not even mentioned as a debtor in the award on the basis of which the decree, which was executed was made. Similarly Naurez was not represented in either of the suits and therefore there was no decree against him and the sale of his property also was therefore without jurisdiction and null and void. This case cannot apply to sons in a joint Hindu family where a father represents the family and the decree is executable against the shares of the sons while the coparcenary continues and the liability of their shares continues after partition. Sat Narain v. Das (2) is equally inapplicable to the present case. There the Privy Council was dealing with the father’s power of disposal of property before and after partition which power vests in the Official Assignee on his bankruptcy, the question of the right of the judgment-creditor to proceed in execution against the divided shares of sons which had been attached before partition was not a point in controversy. There was no decision on the powers of an executing court to proceed against the shares of the sons but the question related to voluntary alienations by a father for payment of his debts not incurred for an immoral or illegal purpose. (1) (1904) L.R. 32 I.A. 23. (2) (1936) L.R. 63 I.A. 384. 1398 In cases where the sons do not challenge the liability of their interest in the execution of the decree against the father and the Court after attachment and proper notice of sale sells the whole estate and the auction-purchaser purchases and pays for the whole estate, the mere fact that the sons were eo nomine not brought on the record would not be sufficient to defeat the rights of the auction-purchaser or put an end to the pious obligation of the sons. As was pointed out by Lord Hobhouse in Malkarjun Bin Shidramappa Pasare v. Narhari Bin Shivappa (1): ” Their Lordships agree with the view of the learned Chief Justice that a purchaser cannot possibly judge of such matters, even if lie knows the facts; and that if he is to be held bound to enquire into the accuracy of the Court’s conduct of its own business, no purchaser at a Court sale would be safe. Strancers to a suit are justified in believing that the Court has done that which by the directions of the Court it ought to do. ” In Mussamat Nanomi Babuasia v. Modun Mohun Lord Hobhouse said at p. 18: ” But if the fact be that the purchaser has bargained and paid for the entirely, he may clearly defend his title to it upon any ground which would have justified a sale if the sons had been brought in to oppose the executing proceedings. ” The question which assumes importance in an auction sale of this kind therefore is what did the court intend to sell and did sell and what did the auction purchaser purport to buy and did buy and what did he pay for. One track of decision of which Shambu Nath Pandey v. Golab Singh(3) is an instance, shows when the father’s share alone passes. In that case the father alone was made a party to the proceedings. The mortgage, the suit of the creditor and the decree and the sale certificate all purported to affect the rights of the father and his interest alone. It was therefore held that whatever the nature of the debt, only the father’s (1) (1900) L.R. 27 I.A. 216, 225. (2) (1885) L.R. 13 I.A. i. (3) (1887) L.R. 14 I.A. 77. 1399 right and interest was intended to pass to the auction- purchaser. In Meenakshi Naidu v. Immudi Kanaka Rammaya Kounden(1) which represents the other track of decision, the Privy Council held that upon the documents the court intended to sell and did sell the whole of the coparcenary interest and not any partial interest. The query in decided cases has been as to what was put up for sale and was sold and what the purchaser had reason to think he was buying in execution of the decree. Mussamat Nanomi Babuasin v. Modun Mohun (2) (supra), Bhagbut Persad v. Mussamat Girja Koer (3), Meenakshi Naidu v. Immudi Rammaya Kounden (1) and Rai Babu Mahabir Persad v. Rai Markunda Nath Sahai (4) and Daulat Ram v. Mehr Chand (5). In the present case the payment order was made by the Deputy Registrar on April 21, 1942, and after the order had been sent to the Collector for recovery, the property was attached on April 24, 1942, and notice of sale was issued on November 24, 1942, and was published under ss. 165 and 166 of the Bombay Land Revenue Code. The proclamation of sale was dated December 12, 1942. The property put up for sale was plot No. 36 -D measuring 6 acres and one guntha and its value was specified as 13,000 rupees. There was a note added : ” No guarantee is given of the title of the said defendant or of the validity of any of the rights, charges or interests claimed by third parties “. The order confirming the sale also shows that the whole bungalow was sold. It was valued at Rs. 16,000 and there was a mortgage of Rs. 2,000 against it and what was sold and confirmed by this order was the whole bungalow. The sale certificate was in regard to the whole bungalow i. e. City Survey No. 67–D measuring 6 acres and one guntha the sale price being Rs. 13,025. There is little doubt therefore that what was put up for auction sale was the whole bungalow 2,0.6 (1) (1888) L.R. 16 I.A. i. (3) (1888) L.R. 15 I.A. 99. (5) (1889) L.R. 14 I.A. 187. 178 (2) (1885) L.R. 13 I.A. i. (4) (1889) L.R. 17 I.A. 11, 16. 1400 and what the auction-purchaser purported to buy and paid for was also the whole bungalow and not any fractional share in it. It is a case where not only was the payment order passed before the partition but the attachment was made and the sale proclamation was issued before the suit for partition was filed and the sale took place of the whole property without any protest or challenge by the sons and without any notice to the Collector or the judgment-creditor of the filing of the suit for partition. In such a case respondent No. 1 is entitled to defend his title upon the grounds which would have justified the sale had the appellants been brought on record in execution proceedings. The binding nature of the decree passed on the father’s debts not tainted with immorality or illegality, and the pious obligation imposed on the sons under the Mitakshara law would be sufficient to sustain the sale and defeat the sons’ suit in the same way and on the same grounds as in the case of execution proceedings. Nanomi Babuasin v. Modun Mohun (1). Consequently whether the sons were made parties to the execution proceedings or brought a suit challenging the sale of their shares the points for decision are the same-the nature of the debts and liability of the sons under Hindu law, and these are the determining factors in both the cases i.e. the sons being parties to the execution proceedings or their suit challenging the sale of their shares. The effect of attachment on the severance of status by the filing of a suit by one of the members of the coparcenary whose share was liable in execution of the decree has not been debated at the bar and how exactly it would affect the rights of the parties need not therefore be decided in this case. As a consequence it would not be necessary to discuss the pronouncements of the Privy Council in Suraj Bansi Koer v. Sheo Prasad Singh (2) ; Moti Lal v. Karrabuldin (3) Ragunath Das v. Sundar Das Khetri (4); Ananta Padmanabha Swami v. Official Receiver, Secunderabad (5). (1) (1885) L.R. 13 I.A. i. (3) (1897) L.R. 24 I.A. 170. (2) (1878) L.R. 6 I.A. 88, 101. (4) (1914) L.R. 41 I.A. 251. (5) (1933) L.R. 60 I.A. 167, 174-5. 1401 The argument based on the interpretation of the words I right, title and interest of the defaulter’ in s. 155 of the Bombay Land Revenue Code was that it was only the share of the defaulter himself which was and could be put up for auction sale. That the whole of the property was put up for sale, was sold and was purchased as such is shown by the documents to which reference has already been made viz., the notice of November 24, 1942, proclamation of sale of Decem- ber 24, 1,942, the order of confirmation of sale dated June 28, 1943, and the sale certificate issued by the Collector. The Civil Procedure Code at the time of the enactment of the Bombay Land Revenue Code required that the property sold in execution should be described as ” right, title and interest of the judgment debtor ” and the same words have been used in s. 155 of the Bombay Land Revenue Code. It is a question of fact in each case as to what was sold in execution of the decree. In Rai Babu Mahabir Prasad v. Markunda Nath Sahai (1) Lord Hobhouse observed as follows at p. 16 : ” It is a question of fact in each case, and in this case their Lordships think that the transactions of the 4th and 5th of January, 1875, and the description of the property in the sale certificate, are conclusive to shew that the entire corpus of the estate was sold. ” Similarly in Meenakshi Naidu v. Immudi Kanaka Rammaya Kounden (2) the whole interest of the coparcenary was held to be sold taking into consideration the evidence which had been placed on the record. Lord FitzGerald at p. 5 pointed out the difference where only the father’s interest was intended to pass: “In Hurdey Narain’s case” (Hurdey Narain v. Rooder Perkash (3)) ” all the documents shewed that the Court intended to sell and that it did sell nothing but the father’s share-the share and interest that he would take on partition, and nothing beyond it-and this tribunal in that case puts it entirely upon the ground (1) (1889) L.R. 17 I.A. 11, 16. (2) (1888) L.R. 16 I.A. i. (3) (1883) L. R. 11 I. A. 26, 29. 1402 that everything shewed that the thing sold was “whatever rights and interests, the said judgment debtor had in the property ” and nothing else “. In Sripat Singh v. Tagore (1) the “right, title and interest of the judgment debtor” were sold and there also it was held to convey the whole coparcenary estate and it was remarked that it was of the utmost importance that the substance and not merely the technicality of the transaction should be regarded. What is to be seen is what was put up for sale what the court intended to sell and what the purchaser was intending to buy and what he purported to buy. Counsel for the appellants relied on Shambu Nath Panday v. Golab Singh(2) where it was held that right and interest of the father meant personal interest but in that case as we have pointed out, the documents produced all showed that the father’s interest alone was intended to pass. In Mulgund Co-operative Credit Society v. Shidlingappa Ishwarappa (3) it was held that the sale under the Bombay Land Revenue Code has the same effect as the sale by the Civil Court. The language used in the Bombay Land Revenue Code and the then existing Civil Procedure Code is similar i.e. ” the right, title and interest of the defaulter ” in one case and ” of the judgment debtor ” in the other. This is supported by the observation of the Privy Council in Rai Babu Mahabir Prasad v. Markunda Nath Sahai (4) and as to what passed under the sale does not become any different merely because the sale is held under s. 155 of the Bombay Land Revenue Code rather than the Code of Civil Procedure. The effect in both cases is the same. We hold therefore (1) that the liability of the sons to discharge the debts of the father which are not tainted with immorality or illegality is based on the pious obligation of the sons which continues to exist in the lifetime and after the death of the father and which does not come to an end as a result of partition of the joint family property. All that results from partition is that the right of the father to make an (i) (1916) L.R. 44 I.A. i. (3) A.I.R. 194i Bom. 385. (2) (1887) L.R. 14 I.A. 77. (4) (1880) L.R. 17 I.A. 11, 16. 1403 alienation comes to an end. (2) Where the right, title and interest of a judgment-debtor are set up for sale as to what passes to the auction-purchaser is a question of fact in each case dependent upon what was the estate put up for sale, what the Court intended to sell and what the purchaser intended to buy and did buy and what he paid for. (3) The words di right, title and interest ” occurring in s. 155 of the Bombay Land Revenue Code have the same connotation as they had in the corresponding words used in the Code of Civil Procedure existing at the time the Bombay Land Revenue Code was enacted. (4) In execution proceedings it is not necessary to implead the sons or to bring another suit if severance of status takes place pending the execution proceedings because the pious duty of the sons continues and consequently there is merely a difference in the mode of enjoyment of the property. (5) The liability of a father, who is a managing director and who draws a salary or a remuneration, incurred as a result of negligence in the discharge of his duties is not an avyavaharika debt as it cannot be termed as ” repugnant to good morals “. In the result the appeal fails and is dismissed with costs. SINHA J.-I agree to the order proposed. Appeal dismissed. Under S. 72 of the Indian Contract Act, 1872: ” A person to whom money has been paid . by mistake or under coercion must repay or return it “. The respondent, a registered firm, paid sales tax in respect of its forward transactions in pursuance of the assessment orders passed by the sales tax officer for the years 1949- 51, but in 1952, the Allahabad High Court having held in Messrs. Budh Prakash jai Prakash v. Sales Tax Officer, Kanpuy, 1952 A. L. J. 332, that the levy of sales tax on forward transactions was ultra vires, the respondent applied for a refund of the amounts paid, by a writ petition under Art. 226 of the Constitution. It was contended for the sales tax authorities that the respondent was not entitled to a refund because (1) the amounts in dispute were paid by the respondent under a mistake of law and were therefore irrecoverable, (2) the payments were in discharge of the liability under the Sales Tax Act and were voluntary payments without protest, and (3) inasmuch as the monies which had been received by the Government had not been retaine but had been spent away by it, the respondent was disentitled to recover the said amounts. Held, that the term ” mistake ” in s. 72 Of the Indian Con- tract Act comprises within its scope a mistake of law as well as a mistake of fact and that, under that section a party is entitled to recover money paid by mistake or under coercion, and if it is established that the payment, even though it be of a tax, has been made by the party labouring under a mistake of law, the party receiving the money is bound to repay or return it though it might have been paid voluntarily, subject, however, to questions of estoppel, waiver, limitation or the like. Shib Prasad Singh v. Maharaja Srish Chandra Nandi, (1949) L.R. 76 I.A. 244, relied on. Where there is a clear and unambiguous provision of law which entitles a party to the relief claimed by him, equitable considerations cannot be imported and, in the instant case, the fact that the Government had not retained the monies paid by the respondent but had spent them away in the ordinary course 1351 of business of the State would not make any difference, and under the plain terms of s. 72 Of the Act the respondent was entitled to recover the amounts. Observations in Nagorao v. Governor-General in Council, A. 1. R. 1951 Nag. 372, 374, to the effect that where a party receiving money paid under a mistake has no longer the money with him, equitable considerations might arise, disapproved. CIVIL APPELLATE- JURISDICTION: Civil Appeal No. 87 of 1957. Appeal from the judgment and decree dated December 1, 1955, of the Allahabad High Court in Special Appeal No. 18 of 1955, arising out of the judgment and order dated November 30, 1954, of the’ said Court in Civil Misc. Writ No. 355 of 1952. H. N. Sanyal, Additional Solicitor-General of India, G. C. Mathur and C. P. Lal, for the appellants. P. R. Das and B. P. Maheshwari, for the respondent. B. P. Maheshwari, for Agra Bullion Exchange (Intervener). K. Veeraswami and T. M. Sen, for the State of Madras (Intervener). R. C. Prasad, for the State of Bihar (Intervener). H. N. Sanyal, Additional Solicitor-General of India, B. Gopalakrishnan and T. M. Sen, for the Union of India (Intervener). 1958. September 23. The Judgment of the Court was delivered by BHAGWATI J.-The facts leading up to this appeal lie within a narrow compass. The respondent is a firm registered under the Indian Partnership Act dealing in Bullion, Gold and Silver ornaments and forward contracts in Silver Bullion at Banaras in the State of Uttar Pradesh. For the assessment years 1948-49, 1949-50 and 1950-51 the Sales Tax Officer, Banaras, the appellant No. 1 herein assessed the respondent to U. P. Sales Tax on its forward transactions in Silver Bullion. The respondent had deposited the sums of Rs. 150- 12-0, Rs. 470-0-0 and Rs. 741-0-0 for the said 1352 three years which sums were appropriated to-wards the payment of the sales tax liability of the firm under the respective assessment orders passed on May 31, 1949, October 30, 1950 and August 22, 1951. The levy of sales tax on forward transactions was held to be ultra vires, by the High Court of Allahabad by its judgment delivered on February 27, 1952, in Messrs. Budh Prakash Jai Prakash v. Sales Tax Officer, Kanpur (1) and the respondent by its letter dated July 8, 1952, asked for a refund of the amounts of sales tax paid as aforesaid. The appellant No. 2, the Commissioner of Sales Tax, U. P., Lucknow, however, by his letter dated July 19, 1952, refused to refund the same. The respondent thereafter filed in the High Court of Allahabad the Civil Misc. Writ Petition No. 355 of 1952 under Art. 226 of the Constitution and asked for a writ of certiorari for quashing the aforesaid three assessment orders and a writ of mandamus requiring the appellants to refund the aforesaid amounts aggregating to Rs. 1,365-12-0. The judgment of the Allahabad High Court was confirmed by this Court on May 3, 1954, in Sales Tax Officer, Pilibhit v. Budh Prakash Jai Prakash () and the writ petition aforesaid was heard by Chaturvedi J. The learned judge by an order dated November 30, 1954, quashed the said assessment orders in so far as they purported to assess the respondent in respect of forward contracts in silver and also issued a writ of mandamus directing the appellants to refund the amounts paid by the respondent. The appellants filed a Special Appeal No. 18 of 1955 in the High Court of Allahabad against that order of the learned Judge. A Division Bench of the said High Court heard the said appeal on December 1, 1955. It was argued by the Advocate-General on, behalf of the appellants that the amounts in dispute were paid by the respondent under a mistake of law and were therefore irrecoverable. The Advocate-General also stated categorically that in that appeal he did not contend that the respondent ought to have (1) (1952) A.L.J- 332. (2) [I955] 1 S.C.R. 243. 1353 proceeded for the recovery of the amount claimed otherwise than by way of a petition Under Art. 226 of the Constitution. The High Court came to the conclusion that s. 72 of the Indian Contract Act applied to the present case and the State Government must refund the moneys unlawfully received by it from the respondent on account of Sales Tax. It accordingly dismissed the appeal with costs. The appellants then applied for a certificate under Art. 133(1)(b) of the Constitution which certificate was granted by the High Court on July 30, 1956, on the Advocate- General’s giving to the Court an undertaking that the State will, in any event, pay the costs, charges and expenses incurred by or on behalf of the respondent as taxed by this Court. This appeal has accordingly come up for hearing and final disposal before us at the instance of the Sales Tax Officer, Banaras, appellant No. 1, the Commissioner, Sales Tax, U.P., Lucknow, appellant No. 2 and the State of U.P., appellant No. 3. The question that arises for our determination in this appeal is whether s. 72 of the Indian Contract Act applies to the facts of the present case. The learned Additional Solicitor-General appearing for the appellants tried to urge before us that the procedure laid down in the U.P. Sales Tax Act by way of appeal and/or revision against the assessment orders in question ought to have been followed by the respondent and that not having been done the respondent was debarred from proceeding in the civil courts for obtaining a refund of the monies paid as aforesaid. He also tried to urge that in any event a writ petition could not lie for recovering the monies thus paid by the respondent. Both those contentions were, however, not available to him by reason of the categorical statement made by the Advocate-General before the High Court. The whole matter had proceeded on the basis that the respondent was entitled to recover the amount claimed in the writ petition which was filed. No such point had been taken either in the grounds of appeal or in the statement of case filed before us in this Court and we did not feel justified in allowing the 1354 learned Additional Solicitor-General to take this point at this stage. Section 72 of the Indian Contract Act is in the following terms: ” A person to whom money has been paid, or anything delivered by mistake or under coercion, must repay or return it.” As will be observed the section in terms does not make any distinction between a mistake of law or a mistake of fact. The term ” mistake ” has been used without any qualification or limitation whatever and comprises within its scope a mistake of law as well as a mistake of fact. It was, however, attempted to be argued on the analogy of the position in law obtaining in England, America and Australia that money paid under a mistake of law could not be recovered and that that was also the intendment of s. 72 of the Indian Contract Act. The position in English law is thus summarised in Kerr on ” Fraud and Mistake ” 7th Edn., at p. 140: ” As a general rule it is well-established in equity as well as at law, that money paid under a mistake of law, with full knowledge of the facts, is not recoverable, and that even a promise to pay, upon a supposed liability, and in ignorance of the law, will bind the party. ” The ratio of the rule was thus stated by James L. J. in Rogers v. Ingham(1) : ” If that proposition were trite in respect of this case it must be true in respect to every case in the High Court of Justice where money has been paid under a mistake as to legal rights, it would open a fearful amount of litigation and evil in the cases of distribution of estates, and it would be difficult to say what limit could be placed to this kind of claim, if it could be made after an executor or trustee had distributed the whole estate among the persons supposed to be entitled, every one of them having knowledge of all the facts, and having given a release. The thing has never been done, and it is not a thing which, in my opinion, is to be encouraged. Where people have a (1) (1876) 3 Ch. D. 351,356. 1355 knowledge of all the facts and take advice, and whether they get proper advice or not, the money is divided and the business is settled, it is not for the good of mankind that it should be reopened.” (See also National Pari Mutual Association Ltd. v. The King (1) and Pollock on Contract, 13th Edn., at pp. 367 & 374). The American doctrine is also to the same effect as appears from the following passage in Willoughby on the Constitution of the United States, Vol. 1, p. 12: ” The general doctrine that no legal rights or obligation can accrue under an unconstitutional law is applied in civil as well as criminal cases. However, in the case of taxes levied and collected under statutes later held to be unconstitutional, the tax payer cannot recover unless he protested the payment at the time made. This, however, is a special doctrine applicable only in the case of taxes paid to the State. Thus, in transactions between private individuals, moneys paid under or in pursuance of a statute later held to be unconstitutional, may be recovered, or release from other undertakings entered into obtained. ” The High Court of Australia also expressed a similar opinion in Werrin v. The Commonwealth (2) where Latham C. J. and MacTiernan J. held that money paid voluntarily under a mistake of law was irrecoverable. Latham C. J. in the course of his judgment at p. 157 relied upon the general rule, as stated in Leake on Contracts, 6th Edn. (1911), p. 63 ” that money paid voluntarily, that is to say, without compulsion or extortion or undue influence and with a knowledge of. all the facts, cannot be recovered although paid without any consideration. ” It is no doubt true that in England, America and Australia the position in law is that monies paid voluntarily, that is to say, without compulsion or extortion or undue influence and with a knowledge of all facts, cannot here covered although paid without any consideration.Is the position the same in India ? (1) 47 T.L.R. 110. (2) 59 C.L.R. 150. 172 1356 It is necessary to observe at the outset that what we have got to consider are the plain terms of s. 72 of the Indian Contract Act as enacted by the Legislature. If the terms are plain and unambiguous we cannot have resort to the position in law as it obtained in England or in other countries when the statute was enacted by the Legislature. Such recourse would be permissible only if there was any latent or patent ambiguity and the courts were required to find out what was the true intendment of the Legislature. Where, however, the terms of the statute do not admit of any such ambiguity, it is the clear duty of the courts to construe the plain terms of the statute and give them their legal effect. As was observed by Lord Herschell in the Bank of England v. Vagliano Brothers (1) : ” I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning uninfluenced by any considerations derived from the previous state of the law, and not to start with enquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. ” “If a Statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before, by roaming oyer a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decision. This passage was quoted with approval by their Lordships of the Privy Council in Narendranath Sircar v. Kamal-Basini Dasi (2) while laying down the proper mode of dealing with an Act enacted to codify a particular branch of the law. (1) [1891] A.C. 107, 144. (2) (1896) I.L.R. 23 Cal. 563, 571. 1357 The Privy Council adopted a similar reasoning in Mohori Bibee v. Dhurmodas Ghose (1) where they had to interpret s. 11 of the Indian Contract Act. They had before them the general current of decisions in India that ever since the passing of the Indian Contract Act the contracts of infants were voidable only. There were, however, vigorous protests by various judges from time to time; and there were also decisions to the contrary effect. Under these cir- cumstances, their Lordships considered themselves at liberty to act on their own view of the law as declared by the Contract Act, and they had thought it right to have the case reargued before them upon this point. They did not consider it necessary to examine in detail the numerous decisions above referred to, as in their opinion the ” whole question turns upon what is the true construction of the Contract Act itself “. They then referred to the various relevant sections of the Indian Contract Act and came to the conclusion that the question whether a contract is void or voidable presupposes the existence of a contract within the meaning of the Act and cannot arise in the base of an infant who is not ” competent to contract. ” In Satyabrata Ghose v. Mugneeram Bangur & Co. (2), s. 56 of the Indian Contract Act came up for consideration by this Court. B. K. Mukherjea J. (as he then was) while delivering the judgment of the Court quoted with approval the following observations of Fazl Ali J. in Ganga Saran v. Ram Charan (3): ” It seems necessary for us to emphasise that so far as the courts in this country are concerned, they must look primarily to the law as embodied in sections 32 and 56 of the Indian Contract Act, 1872. and proceeded to observe : ” It would be incorrect to say that section 56 of the Contract Act applies only to cases of physical impossibility and that where this section is not applicable, recourse can be had to the principle of English law on the subject of frustration. It must be held also that to the extent that the Indian Contract Act deals (1) (1902) L.R. 30 I.A. 114. (2) [1953] INSC 70; [1954] S.C.R. 310. (3) [1951] INSC 51; [1952] S.C.R. 36, 52. 1358 with a particular subject, it is exhaustive upon the same and it is not permissible to import the principles of English law dehors these statutory provisions. The decisions of the English courts possess only a persuasive value and may be helpful in showing how the courts in England have decided cases under circumstances similar to those which have come before our courts. ” It is, therefore, clear that in order to ascertain the true meaning and intent of the provisions, we have got to turn to the very terms of the statute itself, divorced from all considerations as to what was the state of the previous law or the law in England or elsewhere at the time when the statute was enacted. To do otherwise would be to make the law, not to interpret it. (See Gwynne v. Burnell (1) and Kumar Kamalranjan Roy v. Secretary of State (2). The courts in India do not appear to have consistently adopted this course and there were several decisions reached to the effect that s. 72 did not apply to money paid under a mistake of law, e.g., Wolf & Sons v. Dadyba Khimji & Co. (3) and Appavoo Chettiar v. S. 1. Ry. Co. (4). In reaching those decisions the courts were particularly influenced by the English decisions and also provisions of s. 21 of the Indian Contract Act which provides that a contract is not voidable because it was caused by a mistake as to any law in force in British India. On the other hand, the Calcutta High Court had decided in Jagdish Prasad Pannalal v. Produce Exchange Corporation Ltd. (5), that the word ” mistake ” in s. 72 of the Indian Contract Act included not only a mistake of fact but also a mistake of law and it was further pointed out that this section did not conflict with s. 21 because that section dealt not with a payment made under a mistake of law but a contract caused by a mistake of law, whereas s. 72 dealt with a payment which was either not under a contract at all or even if under a contract, it was not a cause of the contract. (1) 7 Cl. & F. 696. (2) L. R. 66 I. A. 1, 10. (3) (1919) I.L.R. 44 Bom. 631, 649. (4) A.I.R. 1929 Mad. 177. (5) A.I.R. 1946 Cal. 245. 1359 The Privy Council resolved this conflict in Shiba Prasad Singh v. Srish Chandra Nundi(1). Their Lordships of the Privy Council observed that the authorities which dealt with the meaning of ” mistake ” in the section were surprisingly few and it could not be said that there was any settled trend of authority. Their Lordships were therefore bound to consider this matter as an open question, and stated at p. 253: ” Those learned judges who have held that mistake in this context must be given a limited meaning appear to have been largely influenced by the view expressed in Pollock and Mulla’s commentary on s. 72 of the Indian Contract Act, where it is stated (Indian Contract & Specific Relief Acts, 6th Edn., p. 402): ” Mistake of law is not expressly excluded by the words of this section; but s. 21 shows that it is not included “. For example, Wolf & Sons v. Dadyaba Khimji & Co. (2). Macleod J. said referring to s. 72 ” on the face of it mistake includes mistake of law. But it is said that under s. 21 a contract is not voidable on the ground that the parties contracted under a mistaken belief of the law existing in British India, and the effect of that section would be neutralized if a party to such a contract could recover what he had paid by means of s. 72 though under s. 21 the contract remained legally enforceable. This seems to be the argument of Messrs. Pollock and Mulla and as far as I can see it is sound.” In Appavoo Chettiar v. South Indian Rly. (3), Ramesam and Jackson JJ. say: ” Though the word ‘ mistake’ in s. 72 is not limited it must refer to the kind of mistake that can afford a ground for relief as laid down in ss. 20 and 21 of the Act. Indian law seems to be clear, namely, that a mistake, in the sense that it is a pure mistake as to the law in India resulting in the payment by one person to another and making it equitable that the payee should return the money is no ground for relief.” Their Lordships have found no case in which an opinion that ‘,mistake” in s. 72 must be given a limited meaning has been based on any other ground. In their (1) (1949) L.R. 76 I.A. 244. (2) (1919) I.L.R. 44 Bom. 631. (3) A.I.R. 1929 Mad. 648. 1360 Lordships’ opinion this reasoning is fallacious. If a mistake of law has led to the formation of a contract, s. 21 enacts that that contract is not for that reason voidable. If money is paid under that contract, it cannot be said that that money was paid under mistake of law ; it was paid because it was due under a valid contract, and if it had not been paid payment could have been enforced. Payment ” by mistake ” in s. 72 must refer to a payment which was not legally due and which could not have been enforced ; the ” mistake ” is thinking that the money paid was due when, in fact, it was not due. There is nothing inconsistent in enacting on the one hand that if parties enter into a contract under mistake in law that contract must stand and is enforceable, but, on the other hand, that if one party acting under mistake of law pays to another party money which is not due by contract or otherwise, that money must be repaid. Moreover, if the argument based on inconsistency with s. 21 were valid, a similar argument based on incon- sistency with s. 22 would be valid and would lead to the conclusion that s. 72 does not even apply to mistake of fact. The argument submitted to their Lordships was that s. 72 only applies if there is no subsisting contract between the person making the payment and the payee, and that the Indian Contract Act does not deal with the case where there is a subsisting contract but the payment was not due under it. But there appears to their Lordships to be no good reason for so limiting the scope of the Act. Once it is established that the payment in question was not due, it appears to their Lordships to be irrelevant to consider whether or not there was a contract between the parties under which some other sum was due. Their Lordships do not find it necessary to examine in detail the Indian authorities for the wider interpretation of ” mistake ” in s. 72. They would only refer to the latest of these authorities, Pannalal v. Produce Exchange Corp. Ltd. (1), in which a carefully reasoned judgment was given by Sen J. Their Lordships agree with this judgment. It may be well to add that their (1) A.I.R. 1946 Cal. 245. 1361 Lordships’ judgment does not imply that every sum paid under mistake is recoverable, no matter what the circumstances may be. There may in a particular case be circumstances which disentitle a plaintiff by estoppel or otherwise.” We are of opinion that this interpretation put by their Lordships of the Privy Council on s. 72 is correct. There is no warrant for ascribing any limited meaning to the word I mistake’ as has been used therein and it is wide enough to cover not only a mistake of fact but also a mistake of law. There is no Conflict between the provisions of s. 72 on the one hand and ss. 21 and 22 of the Indian Contract Act on the other and the true principle enunciated is that if one party under a mistake, whether of fact or law, pays to another party money which is not due by contract or otherwise that money must be repaid. The mistake lies in thinking that the money paid was due when in fact it was not due and that mistake, if established, entitles the party paying the money to recover it back from the party receiving the same. The learned Additional Solicitor-General, however, sought to bring his case within the observations of their Lordships of the Privy Council that their judgment did not imply that every sum paid under mistake is recoverable no matter what the circumstances might be and that there might be in a particular case circumstances which disentitle a plaintiff by estoppel or otherwise. It was thus urged that having regard to the circumstances of the present case, (i) in so far as the payments were in discharge of the liability under the U.P. Sales Tax Act and were voluntary payments without protest and also (ii) inasmuch as the monies which had been received by the State of U. P. had not been retained but had been spent away by it, the respondent was disentitled to recover the said amounts. Here also, we may observe that these contentions were not specifically urged in the High Court or in the statement of case filed by the appellants in this court; but we heard arguments on the same, as they were necessarily involved in the question whether s. 72 of 1362 the Indian Contract Act applied to the facts of the present case. Re: (i):-The respondent was assessed for the said amounts under the U. P. Sales Tax Act and paid the same; but these payments were in respect of forward transactions in silver. If the State of U. P. was not entitled to receive the sales tax on these transactions, the provision in that behalf being ultra vires, that could not avail the State and the amounts were paid by the respondent, even though they were not due by contract or otherwise. The respondent committed the mistake in thinking that the monies paid were due when in fact they were not due and that mistake on being established entitled it to recover the same back from the State under s. 72 of the Indian Contract Act. It was, however, contended that the payments having been made in discharge of the liability under the U. P. Sales Tax Act, they were payments of tax and even though the terms of s. 72 of the Indian Contract Act applied to the facts of the present case no monies paid by way of tax could be recovered. We do not see any warrant for this proposition within the terms of s. 72 itself. Reliance was, however, placed on two decisions of the Madras High Court reported in (1) Municipal Council, Tuticorin v. Balli Bros. (1) and (2) Municipal Council, Rajahmundry v. Subba Rao (2). It may be noted, however, that both these decisions proceeded on the basis that the payments of the taxes there were made under mistake of law which as understood then by the Madras High Court was not within the purview of s. 72 of the Indian Contract Act. The High Court then proceeded to consider whether they fell within the second part of s. 72, viz., whether the monies had been paid under coercion. The court held on the facts of those cases that the payments had been voluntarily made and the parties paying the same were therefore not entitled to recover the same. The voluntary payment was there considered in contradistinction to payment under coercion and the real ratio of the decisions was that there was no coercion or duress exercised by the authorities for (1) A.I.R. 1934 Mad. 420. (2) A.I.R, 1937 Mad. 559. 1363 exacting the said payments and therefore the payments having been voluntarily made, though under mistake of law, were not recoverable. The ratio of these decisions, therefore, does not help the appellants before us. The Privy Council decision in Shiba Prasad Singh v. Srish Chandra Nandi (1) has set the whole controversy at rest and if it is once established that the payment, even though it be of a tax, has been made by the party labouring under a mistake of law the party is entitled to recover the same and the party receiving the same is bound to repay or return it. No distinction can, therefore, be made in respect of a tax liability and any other liability on a plain reading of the terms of s. 72 of the Indian Contract Act, even though such a distinction has been made in America vide the passage from Willoughby on the Constitution of the United States, Vol. 1, p. 12 opcit. To hold that tax paid by mistake of law cannot be recoverd under s. 72 will be not to interpret the law but to make a law by adding some such words as ” otherwise than by way of taxes ” after the word ” paid “. If this is the true position the fact that both the parties, viz., the respondent and the appellants were labouring under a mistake of law and the respondent made the payments voluntarily would not disentitle it from receiving the said amounts. The amounts paid by the respondent under the U. P. Sales Tax Act in respect of the forward transactions in silver, had already been deposited by the respondent in advance in accordance with the U. P. Sales Tax Rules and were appropriated by the State of U. P. towards the discharge of the liability for the sales tax on the res- pective assessment orders having been passed. Both the parties were then labouring under a mistake of law, the legal position as established later on by the decision of the Allahabad High Court in Messrs. Budh Prakash Jai Prakash v. Sales Tax Officer, Kanpur (2) subsequently confirmed by this Court in Sales Tax Officer, Pilibhit v. Budh Prakash Jai Prakash (3) not having been known to the parties at the relevant (1) (1949) L. R. 76 1. A. 244. (2) (1952) A.L.J. 332. (3) [1955] I S.C.R. 243. 173 1364 dates. This mistake of law became apparent only on May 3, 1954, when this Court confirmed the said decition of the Allababad High Court and on that position being established the respondent became entitled to recover back the said amounts which had been paid by mistake of law. The state of mind of the respondent would be the only thing relevant to consider in this context and once the respondent established that the payments were made by it under a mistake of law, (and it may be noted here that the whole matter proceeded before the High Court on the basis that the respondent had committed a mistake of law in making the said payments), it was entitled to recover back the said amounts and the State of U. P. was bound to repay or return the same to the respondent irrespective of any other consideration. There was nothing in the circumstances of the case to raise any estoppel against the respondent nor would the fact that the payments were made in discharge of a tax liability come within the dictum of the Privy Council above referred-to. Voluntary payment of such tax liability was not by itself enough to preclude the respondent from recovering the said amounts, once it was established that the payments were made under a mistake of law. On a true interpretation of s. 72 of the Indian Contract Act the only two circumstances there indicated as entitling the party to recover the money back are that the monies must have been paid by mistake or under coercion. If mistake either of law or of fact is established, he is entitled to recover the monies and the party receiving the same is bound to repay or return them irrespective of any consideration whether the monies had been paid voluntarily, subject however to questions of estoppel, waiver, limitation or the like. If once that circumstance is established the party is entitled to the relief claimed. If, on the other hand, neither mistake of law nor of fact is established., the party may rely upon the fact of the monies having been paid under coercion in order to entitle him to the relief claimed and it is in that position that it becomes relevant to consider whether the payment has been a voluntary payment or a payment under coercion. The 1365 latter position has been elaborated in English law in the manner following in Twyford v. Manchester Corporation (1) where Romer J. observed: ” Even so, however, I respectfully agree with the rest of Walton J.’s judgment, particularly with his statement that a general rule applies, namely, the rule that, if money is paid voluntarily, without compulsion, extortion, or undue influence, without fraud by the person to whom it is paid and with full knowledge of all the facts, it cannot be recovered, although paid without consideration, or in discharge of a claim which was not due or which might have been successfully resisted.” The principle of estoppel which has been adverted to by the Privy Council in Shiba Prasad Singh v. Srish Chandra Nandi (2) as disentitling the plaintiff to recover the monies paid under mistake can best be illustrated by the decision of the Appeal Court in England reported in Holt v. Markham (3) “- here it was held that as the defendant had been led by the plaintiffs’ conduct to believe that he might treat the money as his own, and in that belief had altered his position by spending it, the plaintiffs were estopped from alleging that it was paid under a mistake; and this brings us to a consideration of point No. 2 above stated. Re: (ii): Whether the principle of estoppel applies or there are circumstances attendant upon the transaction which disentitle the respondent to recover back the monies, depends upon the facts and circumstances of each case. No question of estoppel can ever arise where both the parties, as in the present case, are labouring under the mistake of law and one party is not more to blame than the other. Estoppel arises only when the plaintiff by his acts or conduct makes a representation to the defendant of a certain state of facts which is acted upon by the defendant to his detriment; it is only then that the plaintiff is estopped from setting up a different state of facts. Even if this position can be availed of where the representation is in regard to a position in law, no (1) [1946] 1 Ch. 236, 241. (2) [1949] L. R. 76 I. A. 244. (3) [1923] 1 K.B. 504. 1366 such occasion arises when the mistake of law is common to both the parties. The other circumstances would be such as would entitle a court of equity to refuse the relief claimed by the plaintiff because on the facts and circumstances of the case it would be inequitable for the court to award the relief to the plaintiff. These are, however, equitable considerations and could scarcely be imported when there is a clear and unambiguous provision of law which entitles the plaintiff to the relief claimed by him. Such equitable considerations were imported by the Nagpur High Court in Nagorao v. G. G.-in-Council where Kaushalendra Rao J. observed: ” The circumstances in a particular case, disentitle the pltf. to recover what was paid under mistake.” ” If the reason for the rule that a person paying money under mistake is entitled to recover it is that it is against conscience for the receiver to retain it, then when the receiver has no longer the money with him or cannot be considered as still having it as in a case when he has spent it on his own purposes-which is not the case here-different considerations must necessarily arise.” We do not agree with these observations of the Nagpur High Court. No such equitable considerations can be imported when the terms of s. 72 of the Indian Contract Act are clear and unambiguous. We may, in this context, refer to the observations of their Lordships of the Privy Council in Mohori Bibee v. Dhurmodas Ghose (2) at p. 125. In dealing with the argument which was urged there in regard to the minor’s contracts which were declared void, viz., that one who seeks equity must do equity and that the minor against whom the contract was declared void must refund the advantage which he had got out of the same, their Lordships observed that this argument did not require further notice except by referring to a recent decision of the Court of Appeal in Thurstan v. Nottingham Permanent Benefit Building Society (3) (1) A.I.R. 1951 Nag. 372,374. (2) [19O2] L. R. 30 I. A. 114. (3) [I9O2] 1 Ch. 1. 1367 since affirmed by the House of Lords and they quoted with approval the following passage from the judgment of Romer L. J., at p. 13 of the earlier report: ” The short answer is that a Court of Equity cannot say that it is equitable to compel a person to pay moneys in respect of a transaction which as against that person the Legislature has declared to be void.” That ratio was applied by their Lordships to the facts of the case, before them and the contention was negatived. Merely because the State of U. P. had not retained the monies paid by the respondent but had spent them away in the ordinary course of the business of the State would not make any difference to the position and under the plain terms of s. 72 of the Indian Contract Act the respondent would be entitled to recover back the monies paid by it to the State of U.P. under mistake of law. The result, therefore, is that none of the contentions urged before us on behalf of the appellants in regard to the non-applicability of s. 72 of the Indian Contract Act to the facts of the present case avail them and the appeal is accordingly dismissed with costs. Appeal dismissed. The two appellants and one other person were accused of committing a murder. The second appellant made a confession before a Magistrate. The police submitted a charge sheet against the three accused. Thereafter the prosecution made a prayer to the sub-divisional Magistrate that the second appellant may be tendered a pardon under s. 337, Code of Criminal Procedure and the Magistrate recorded an order to the effect that he was tendered a pardon under s. 337 on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge. Before the Committing Magistrate the second appellant stated that the confession made by him was not voluntary and that he did not wish to become an approver. The appellants were committed to the Court of Sessions and were convicted of the murder and were sentenced to death. On appeal the High Court confirmed the conviction and sentence. It was contended by the appellants that the second appellant having been tendered a pardon the joint trial of the appellants was vitiated as it was barred by the proviso to s. 339(I) Of the Code. Held, that there was no effective pardon under s. 337 Of the Code and consequently the provisions of S. 339 did not come into operation in this case. A mere tender of pardon does not attract the provisions of S. 339 ; there must be an acceptance of the pardon by the accomplice and he must be examined as a witness. It is only after this that S. 339 comes into play if the accomplice who has accepted the pardon fails to comply with the conditions on which the pardon was tendered. In the present case though a tender of pardon was made to the second appellant there was no proof that it was accepted by him and as such it could not be said that there was in existence an effective pardon under S. 337. CRIMINAL APPELLATE, JURISDICTION: Criminal Appeals Nos. 102 and 103 of 1958. Appeals by special leave from the judgment and order dated March 28, 1958, of the Calcutta High Court in Criminal Appeal No. 428 of 1957 and reference u/s. 374 Cr. P. C. No. 8 of 1957 arising out of the 1325 judgment and order dated September 21, 1957, of the Court of the Sessions Judge of Cooch Behar in Sessions Trial No. 2 of 1957 (Sept. Sessions) (Sessions Case No. 18 of 1957). S. K. Kapur, for the appellants. B. Sen, P. K. Ghosh for P. K. Bose, for the respondent. 1958. September 19. The Judgment of the Court was delivered by IMAM J.-In these appeals the appellants were convicted for the murder of Malchand Bhadani. A charge under s. 302, Indian Penal Code had been framed against each of them. The Sessions Judge found that the murder had been committed in the furtherance of their common intention. In his opinion as appellant Bipin Behari Sarkar had actually committed the murder he convicted this appellant under s. 302 of the Indian Penal Code. He convicted the appellant Bishnu Charan Saha under s. 302/34 of the Indian Penal Code. He sentenced both the appellants to death. The appellants appealed to the Calcutta High Court while the Sessions Judge made a reference for the confirmation of the death sentence passed by him. The High Court found the appellants guilty under s. 302/34 of the Indian Penal Code. It accordingly confirmed the sentence of death imposed on the appellants by the Sessions Judge. According to the prosecution, one Tarachand Bhadani had a cloth shop at Mathabhanga in the district of Cooch Bihar. He was joint in business and mess with his two sons, Prithiraj and the deceased Malchand. The annual turn-over of the shop was between Rs. 50,000 to Rs. 60,000. On December 18, 1956, Tarachand had gone to Rajasthan and Prithiraj had gone to Falakata Hat. Accordingly at the shop on that day Malchand was the only person in-charge of it. At about 8-30 p. m., after the close of the day’s business, Malchand was counting the cash in the iron safe in an ante- room of the shop when the appellants with one Sanatan Das, who was acquitted -at the trial, 1326 called at the shop. Malchand came out of the anteroom into the shop to attend to these late customers. He had left open the safe and one of its drawers on the floor. The appellants purported to make certain purchases and examined various pieces of cloth. After selection of the cloth they were put into packets. Cash memoes in duplicate were prepared and signed by Malcliand and the appellant Bishnu Charan Saha. The cash memoes had been completely filled in. Two of them had been separated from the cash-memo book, but before the 3rd cash-memo could be detached from the book, Malchand was struck down by the appellants with a heavy cutting instrument which they had carried. The neck was so severely cut that the head was nearly severed from the trunk. Just about then, a neighbour called out to Malchand by way of casual enquiry before retiring for the night. This so frightened the miscreants that they fled. The money in the open safe was left untouched. The motive for the murder was to steal the money from the safe. On December 25, 1956, the police seized a sharp cutting weapon variously described as a sword or a dagger. It was found lying close to some shrubbery near Malchand’s shop. It was stained with human blood. It was a practice of the shop of Tarachand Bhadani to despatch from time to time, after obtaining Hundis, the accumulated proceeds of the business to Calcutta. On the morning of December 18, 1956, Prithiraj, before he went to Falakata Hat, had made enquiries from the firm of Bhairabhan Bhowrilal whether any Hundi was available. As Bhowrilal was not able to supply him the Hundi the cash remained in the shop. The contents of the safe showed that on December 18, 1956, before Malchand was murdered there was a sum of Rs. 3,913 in cash and 8-1/4 tolas of gold. There was, therefore, a substantial amount in the safe at the shop which would have been stolen were it not that the miscreants fled after murdering Malchand because of a neighbour calling out to him. The conviction of the appellants, as pointed out by the High Court, depended entirely on circumstantial 1327 evidence. The High Court did not rely upon the confessional statement made by the appellant Bishnu Charan Saha to a Magistrate, as, in its opinion, it was not a voluntary statement. Reference will be made to the circumstantial evidence, upon which the High Court relied, in due course. Before we deal with that aspect of the case it is necessary to refer to a submission made on behalf of the appellants concerning the tender of pardon under s. 337 of the Code of Criminal Procedure to Bishnu Charan Saha and, the failure of the prosecution to comply with the provisions of s. 339 of the Code of Criminal Procedure. It was urged that the provisions of s. 339 of the Code not having been complied with the trial “,as vitiated as the appellant Bishnu Charan Saha could not be tried alongwith the appellant Bipin Behari Sarkar. In order to understand this submission it is necessary to state a few facts. Bishnu Charan Saha was arrested at about 3 p. m. on December 19, 1956. His confession was recorded by the Magistrate Mr. S. C. Chaudhury on December 20, 1956. A charge-sheet against the appellants and Sanatan Das was submitted by the police on June 20, 1957. On June 22, 1957, a prayer was made to the Sub-divisional Magistrate on behalf of the prosecution that Bishnu Charan Saba may be tendered a pardon under s. 337 of the Code of Criminal Procedure and the Magistrate recorded an order to the effect that this appellant was tendered pardon under s. 337 of the Code of Criminal Procedure on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof. The Sub-divisional Magistrate bad already reported on June 20, 1957, to the District Magistrate that both he and the other Magistrate of Mathabhanga should not hold the commitment proceedings as they had had something to do with the investigation. On August 1, 1957, the Magistrate Mr. Sinha, to whom the case had been ultimately transferred, recorded an order to the effect that the three accused had been produced before him and that he had seen the Court 1328 Inspector’s petition praying that the accused Bishnu be made an approver in the case under s. 337 of the Code of Criminal Procedure. This accused had, however, stated that he made the confessional statement before the Magistrate at Mathabhanga as he had been assaulted by the police and that he did not wish to become an approver. After the completion of the enquiry before commitment, the appellants and Sanatan Das were committed to the Court of Session to stand their trial for the murder of Malchand. Section 339(1) of the Code provides that ” where a pardon has been tendered under s. 337 or s. 338, and the Public Prosecutor certifies that in his opinion any person who has accepted such tender has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered, or for any other offence of which lie appears to have been guilty in connection with the same matter “. The proviso to this sub-section prohibits the trial of such person jointly with any of the other accused and that such person shall be entitled to plead at such trial that he had complied with the condition upon which such tender was made. The provisions of this section clearly pre-suppose that the pardon which had been tendered to a person had been accepted by him and that thereafter that person had wilfully concealed anything essential or had given false evidence and therefore bad not complied with the condition on which the tender was made to him. Section 337 of the Code, under which a pardon is tendered, shows that such tender is made on the condition that the person to whom it is tendered makes a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned whether as a principal or an abettor to the commission thereof. Sub- section (2) of this section requires that every person who has accepted a tender shall be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. 1329 It is clear, therefore, that a mere tender of pardon does not attract the provisions of s. 339. There must be an acceptance of it and the person who has accepted the pardon must be examined as a witness. It is’ only thereafter that the provisions of s. 339 come into play and the person who accepted the pardon may be tried for the offence in respect of which the pardon was tendered, if the Public Prosecutor certifies that in his opinion he has, either wilfully concealed anything essential or had given false evidence and had not complied with the condition on which the tender was made. In the present case, there is nothing on the record to show that on July 22, 1957, although Bishnu Charan Saha had been tendered a pardon, he had accepted the tender. Indeed, the order-sheet of the Sub-divisional Magistrate of that date does not even disclose that Bishnu Charan Saha had been produced before him. On the other hand, when Bishnu Charan Saha and his co-accused were produced before the Magistrate Mr. Sinha, to whom the case had been transferred, the prosecution made a prayer to the Magistrate that Bishnu Charan Saha may be made an approver in the case under s. 337 of the Code of Criminal Procedure. This would show that upto that time Bishnu Charan Saha had not accepted the tender of pardon made to him by the Sub-divisional Magis- trate on June 22,1957. On the prayer of the Prosecutor made to Mr. Sinha on August 1, 1957, Bishnu Charan Saba flatly denied that he wished to be an approver and had stated that the confessional statement made by him to Mr. Chaudhury was not a voluntary one. On the facts of the present case, therefore, all that is proved is that at one stage of the proceedings a tender of pardon had been made to Bishnu Charan Saba. There was, however, no proof that that tender had been accepted by him. Such being the situation it could not be said that there was in existence an effective pardon under s. 337 and that its provisions applied to the facts of the present case. Consequently, no question arises about the applicability of s. 339 to the proceedings before the Magistrate holding an enquiry before commitment or to the trial of the appellants, because the 1330 provisions of s. 339 can only come into operation if there is in existence an effective pardon under s. 337 of the Code. In our opinion, on the facts of the present case, there is no foundation for the submission which had been made. Coming now to the circumstantial evidence in the case upon which the High Court relied for upholding the conviction of the appellants, which may be summed up as follows: (1) The evidence clearly established that the appellants were local men who lived or worked not far from Malchand’s shop. They accordingly had the means and the opportunity of knowing the state of things obtaining at his shop at a particular date. (2) The association of the appellants and Sanatan Das immediately prior to the murder. (3) The evidence of their movements towards the direction of Malchand’s shop. (4) The evidence concerning their presence in the shop of Malchand shortly before the latter was murdered. (5) The evidence concerning the appellant Bipin Bihari Sarkar hurrying away from the direction of Malchand’s shop closely followed by the appellant Bishnu Charan Saha. (6) The evidence of injuries on the palms or fingers of the appellants found at the time of their arrest which took place within 24 hours, or shortly thereafter, of the murder. (7) The evidence of the presence of human bloodstains on the shirt of Bishnu Charan Saha and bloodstains on the wrapper of Bipin Behari Sarkar with burnt holes at places where the stains were found. (8) The cash-memoes with the signatures of the appellant Bishnu Charan Saha. (9) In the opinion of the doctor the nature of the injuries on Malchand showed that probably he was overpowered by someone first and then another person pressed the weapon against his neck. The matter for consideration is whether the circumstantial evidence, as stated above, is sufficient to prove 1331 that the appellants had participated in the murder of Malchand. Two findings of the High Court may be stated at, this stage before the circumstantial evidence is referred to. One concerned the cash-memoes signed by Bishnu Charan Saha and the other concerned the colour of the wrapper worn by Bipin Behari Sarkar when he was seen by Kali Mohan Sarkar, P. W. 7 going away from a place near the shop of Malchand after the murder. The cash-memoes bore the date 11-12-56 and not 18- 12-56. The High Court gave good reasons for holding that the date 11-12-56 was wrongly entered in these cash-memoes after examining the account books of Malchand’s shop and the other circumstances in the case as well as the admission of Bishnu Charan Saha that on December 18, 1956, between 1-30 and 2 p. m. be had caused three cash memoes to be issued in the shop of Malchand. We find ourselves in complete agreement with the findings of the High Court in this respect. The wrapper worn by Bipin Behari Sarkar at the time he was seen by Kali Mohan Sarkar was described by the witness as blue in colour whereas, in fact, the recovered wrapper from the house of this appellant was green in colour. The High Court thought and, in our opinion, rightly that what was in fact green in colour might have appeared to be blue to a witness when seen at night by him. A mistake in describing the colour accurately in the circumstances of the present case did not materially affect the evidence that Bipin Behari Sarkar was wearing a wrapper at the time he was seen at a spot near Malchand’s shop after the murder. Further reference to the wrapper will be made when we consider the case of this appellant. Mohan Lal Sarma, P. W. 4 had stated that at about 8 p.m. on December 18, 1956, he had seen the appellants and Sanatan Das sitting in the latter’s shop. Bishnu Charan Saha was the first to leave the shop. 10 or 15 minutes later, Bipin Behari Sarkar and Sanatan Das left after padlocking Sanatan’s shop. The evidence of this witness had been fully accepted 169 169 1332 by the High Court. Sudhir Ranjan De, P. W. 8 deposed that in the evening of December 18, 1956, at about 7-30 p.m. he had seen Bishnu Charan Saha passing in front of Gostha’s shop which was nearly opposite Malchand’s shop. He had on his body a Sujni Chaddar. 4 or 5 minutes later, Bipin Behari Sarkar and Sanatan Das were seen going in the same direction. The High Court believed the evidence of this witness. It came to the conclusion that on the evidence of Mohan Lal Sarma and Sudhir Ranjan De it was established that at about 8 p.m. the appellants and Sanatan Das were moving towards Malchand’s shop. There was no doubt some discrepancy about the timing but, as was pointed out by the High Court, the witnesses were giving the time approximately and did not purport to give the exact time. Kumud Lal Saha, P. W. 2 deposed that at about 8-30 p.m. on December 18,1956, he saw the appellants and Sanatan sitting with Malchand in the latter’s shop. Malchand was at that time placing cloth for their inspection. The High Court referred to the various criticisms levelled against the testimony of this witness and after dealing with them came to the conclusion that the witness was a truthful witness and that his evi- dence established that the appellants were at the shop of Malchand at about 8-30 p.m. and that Malchand was last seen alive with them. The evidence of Khum Chand Bothers, P.W. 3 proved that at about 8-30 p.m. on the night of Malchand’s murder he had called out “Malchand ” ” Malchand “, but had received no reply. Kali Mohan Sarkar, P. W. 7 proved that at about 8 p.m. on the night in question when he was going home he met the appellant Bipin Behari Sarkar who was going away hurriedly from the direction of the Bazar. On some enquiry made by the witness this appellant stated that he had been pressed by a call of nature. Thereafter, the appellant Bishnu Charan Saha was seen coming behind Bipin Behari Sarkar. Bipin Behari Sarkar had on his person a blue coloured wrapper. The spot at which he had met the appellant Bipin Behari Sarkar was at a distance of about 100 cubits to the south of the passage meant for sweepers 1333 of Malchand’s house. He had heard Bishnu Charan Saha calling out ” Hei, Hei ” to Bipin Behari Sarkar-. The evidence of these witnesses, which had been accepted by the High Court, established that the appellants were seen going in the direction of Malchand’s shop. Thereafter, they were seen with Malchand at his shop. Subsequent to that, Bipin Behari Sarkar was seen going away hurriedly at a place not far from Malchand’s shop followed by Bishnu Charan Saha who was calling out to him ” Hei, Hei “. The last time that Malchand was seen alive was in the company of the appellants. The existence of the cash-memoes, which were stained with human blood, with the signatures of Bishnu Charan Saha clearly established that at least Bishnu Cliaran Saha must have been present at the time of the murder because the cash memoes were being made out for him and they were stained with human blood which shows that Malchand was murdered while he was handling the cash-memoes. It had been further proved that Bishnu Charan Saha had on him certain injuries of which one was an incised injury. The evidence of the doctor was that this injury could have been caused by the same instrument with which the neck injury of Malchand had been caused. It had been further established that the shirt of Bishinu Charan Saha was stained with human blood. The explanation offered by Bishnu Charan Saba for the injuries on his person was not accepted by the High Court and, in our opinion, rightly. Bishnu Charan Saha had stated to the doctor at the time of his examination that injury No. 1 was caused as the result of contact with a grass cutting dao and injuries Nos. 2 and 3 by having drawn his hand over a rough piece of wood, but to the doctor this explanation was unacceptable inasmuch as this appellant was not a left handed person-a fact which appeared clear from his formation and development. When examined under s. 342 of the Code of Criminal Procedure Bishnu Charan Saha told the Court that 2 days prior to his examination by the doctor lie had been cutting straw for his cattle with his left hand when his daughter aged about 1334 4 came up from behind and pushed him which resulted in the injury to his finger by its contact with the dao and that he had also received injuries on the back of his finger by striking it against a piece of wood. So far as the shirt stained with human blood, which was found on his person at the time of his arrest, was concerned, Bishnu Charan Saha seriously disputed the identity of the shirt. The identity of the shirt, however, had been clearly established. His explanation to the Court was that some of the stains had been caused by betel spit and that one or two might have been caused by some drops of blood falling on the shirt at the time he had sustained his injuries. This explanation was also not accepted by the High Court and, we think, rightly. The evidence therefore established that so far as Bishnu Charan Saha was concerned he was seen in the company of Bipin Behari Sarkar and Sanatan Das near about 8 p. m. He was seen shortly thereafter, as were the other two, going in a direction which was towards the shop of Malchand. He was seen along with the other two persons at the shop of Malchand at about 8-30 p.m. Thereafter, he was seen not far from the shop of Malchand going in the same direction as Bipin Behari Sarkar and calling out to him. The cash-memoes at Malchand’s shop had been signed by him. He had injuries on his person consistent with their having been caused while the murder of the deceased took place. The shirt that he was wearing at the time of his arrest was stained with human blood for which he gave no reasonable explanation. In our opinion, the sum total of the evidence against Bishnu Charan Saha established beyond any reasonable doubt that he had participated in the murder of Malchand. Coming now to the case of Bipin Behari Sarkar the evidence against him is the same as against Bishnu Charan Saha about the movements towards the shop of Malchand, presence at the shop of Malchand and being seen going away at a place near the shop of Malchand and the existence of injuries on his person. In addition there was the evidence that a wrapper was seized the next morning after his arrest with marks of 1335 burning round which there were traces of blood. Unlike the case of Bishnu Charan Saba no signatures of his were found on the cash-memoes. It is a matter for consideration whether in the case of this appellant’ any reasonable doubt could arise as to his guilt. It was urged that mere movements towards the shop of Malchand, his presence at the shop of Malchand and his being seen going away at a place near the shop of Malchand would not be sufficient circumstantial evidence to convict him. So far as the injuries were concerned the doctor had admitted that they could have been caused by a split bamboo. The doctor had at no time stated that they could have been caused by the same weapon which caused injuries to the neck of Malchand. The existence of the injuries, therefore, was no additional incriminating circumstance from which any conclusion could be drawn against this appellant. So far as the wrapper was concerned, there was no evidence that the burnt marks found on it were not there before December 18, 1956. Although blood-stains had been found on this wrapper it had not been established that they were human blood-stains. The wrapper was also, therefore, n0 additional incriminating circumstance against this appellant. It is, however, to be remembered that this appellant was with Bishnu Charan Saha and that Malchand was last seen alive in the company of the appellants. The murder of Malchand had already taken place when this appellant followed by Bishnu Charan Saha was seen going away hurriedly at a spot near the shop of Malchand and Bishnu Charan Saha was calling out ” Hei, Hei ” to him. It is remarkable that this appellant was seen not only at the shop of Malchand but near that shop after he bad been murdered and that he was found to have injuries oil his person when he was arrested at 10-30 p.m. on December 19, 1956. It would be a remarkable coincidence that both he and Bishnu Charan Saha should have injuries on their persons so shortly after the murder. Bipin Behari Sarkar denied ownership of the wrapper. His explanation was not that the burnt marks on the wrapper were there before December 18. 1336 This wrapper had blood-stains. They were too small in quantity to enable a Serologist to determine their origin, but it is remarkable that wherever the bloodstains were found on the wrapper an attempt had been made to burn out those marks. Unfortunately, for the appellant, his attempt to burn out the bloodstains on the wrapper was not entirely successful. This was in our opinion, an incriminating circumstance against this appellant. The circumstantial evidence taken as a whole leaves no room for a reasonable doubt in our minds -about the guilt of this appellant. In our opinion, the High Court rightly found the appellants guilty under s. 302/34 of the Indian Penal Code. It could not be said that the sentence of death for a murder of the kind proved in this case was unduly severe. The appeals are accordingly dismissed. Appeals dismissed. The appellant was charged with the murder of a girl Baisakhi. On information given by Aghani, younger sister of the deceased, the headless body of the deceased was re- covered. The appellant absconded but was found in another village and was brought back by the village volunteer force. On interrogation by the Mukhia, Sarpanch and a panch of the Gram Panchayat the appellant made an extrajudicial confession. A blood-stained cutting weapon was recovered from a room of the appellant. At his instance some strands of hair were recovered from a place at a short distance 1337 from the place where the dead body had been recovered, which were stained with human blood and appeared to be scalp hair of a human female. The appellant was convicted and sentenced to death and the High Court upheld the conviction and sentence. The Courts took into consideration the statements made by Aghani to her mother and to other persons that the deceased was last seen in the company of the appellant. Aghani, however, died before her statement could be recorded in a judicial proceeding. It was contended by the appellant that the statements of Aghani were inadmissible, that the extra-judicial confession was not relevant and that the circumstantial evidence was not sufficient to establish the guilt of the appellant. Held, that the statements of Aghani were not admissible either under S. 32 or S. 33 Of the Evidence Act. Section 33 had no application as her statement was not made in any judicial proceeding or before any person authorised by law to record the same. The statements did not relate to the cause of her death or to any circumstances relating to her death but related to the death of her sister and did not fall under cl. 1 of s. 32 which was the only clause which could have any bearing on the question. Held, further, that though having regard to the Bihar Panchayat Raj Act, the Mukhia, Sarpanch and panch of the Gram Panchayat to whom the extra-judicial confession was made were persons in authority within the meaning Of S. 24 Evidence Act, no threat, promise or inducement for making the confession was proved. The facts that the appellant was brought back to the Village by the village volunteer force and that it took two or three hours before he made the confession do not indicate that the confession was not voluntary. There was nothing to show that the confession contained any untrue or inaccurate statement. The circumstantial evidence may not be sufficient by itself to prove the guilt of the appellant, but it afforded sufficient corroboration to the confession and the corroboration was of such a nature as to connect the appellant with the murder. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 76 of 1958. Appeal by special leave from the judgment and order dated March 4, 1958, of the Patna High Court in Criminal Appeal No. 50 of 1958 and Death Reference No. 3 of 1958 arising out of the judgment and order dated January 18, 1958, of the Court of the 1st Additional Judicial Commissioner of Chotanagpur at Ranchi in Sessions Trial No. XC of 1957. B. R. L. Iyengar, for the appellant. 1338 R. H. Dhebar for the respondent. 1958. September 19. The Judgment of the Court was delivered by S. K. DAS J.-This is an appeal by special leave. The appellant is Ratan Gond, aged about 28 years. Tried on a charge under s. 302, Indian Penal Code, he was convicted and sentenced to death by the learned Additional Judicial Commissioner of Ranchi in the State of Bihar. The learned Additional Judicial Commissioner submitted the record to the High Court of Patna for confirmation of the sentence, as he was required to do under the provisions of s. 374 of the Code of Criminal Procedure. Ratan Gond also preferred an appeal to the High Court. The appeal and the reference under s. 374, Criminal Procedure Code, were heard together by a Division Bench of the said High Court and it accepted the reference and dismissed the appeal thereby confirming the sentence of death passed upon the appellant. On May 19, 1958, the appellant prayed for and obtained special leave and then filed the present appeal in pursuance of the leave granted to him. The facts lie within a, narrow compass. The appellant was a resident of village Urte, Tola Banmunda, police station Kolebera in the district of Ranchi. One Mst. Jatri (P. W. 2), who was a widow, also lived in the same village and same Tola. She had two young daughters, one named Baisakhi and the other named Aghani. Baisakhi was about nine years old and Aghain about five years old. The subject of the present appeal is the murder of the girl Baisakhi. On a Tuesday, May 7, 1957, the two sisters, Baisakhi and Aghani, had gone out to Pluck wild berries in a hilly jungle situated at a short distance from their village, the distance being estimated variously by various witnesses from 300 yards to a little more than a mile. We may give here some idea of the location of the village and the hilly area near it. According to the evidence of Rup Ram (P. W. 1), uncle of the two girls, Tola Banmunda consists of about 40 houses. At a short distance to the north, there is a hilly tract known 1339 as Amtis Chua hill. Close to the hill, there are jungles on two sides and there is also a spring or well in between the two strips of jungles. On Tuesday, Mst. Jatri (P. W. 2) had herself gone to pluck berries known as Keond berries at another place. When she left the house in the morning, her two daughters were in the house. Mst. Jatri came back at about noon and found Aghani alone in the house. She enquired from Aghani about the elder sister Baisakhi and Aghani made certain statements to her mother as well as to other persons later that day and the next day. Aghani, however, died within a few months of the occurrence, before her statements could be recorded in a judicial proceeding. The courts below have referred to, and the High Court has relied on, the statements of Aghani. One of the points urged on behalf of the appellant is that the statements of Aghani were not admissible in evidence either under s. 32 or s. 33 of the Evidence Act (I of 1872). As we are of the view that this contention is correct, we are omitting all reference to the statements of Aghani in stating the facts of the case. When Baisakhi did not return to the house even in the evening Mst. Jatri went in the direction of Amtis Chua hill, but could not find Baisakhi. Next morning, information was sent to Rup Ram (P. W. 1) about the fact that Baisakhi was missing, Rup Ram having gone to village Targa for making tiles on the preceding Monday. Rup Ram came back to Banmunda on Wednesday, May 8, 1957. In the meantime certain other villagers including Dalpat Sai (P. W. 4), mukhia of the village, and Sohar (P. W. 5), chaukidar of the village, had been informed that Baisakhi was missing. Aghani took Rup Ram and these villagers to the foot of Amtis Chua hill and showed them the spring or well. This village party found the headless body of Baisakhi at a short distance from the aforesaid spring. The body was identified by Mst. Jatri and others as the dead body of Baisakhi by reason of the white saree of yellow border which Baisakhi was wearing, five red ” churis ” round the right hand, two red ” churis ” round the 170 1340 left hand, one ” bera ” round the left hand, one brass ring on the left finger and certain beads of a ” mala ” which Baisakhi had put on. When the headless dead body was discovered and identified, Dalpat Sai left some of his companions to guard the dead body and went to the house of the appellant, but did not find him there. He then sent Rup Ram and the chaukidar to the police station which was at a distance of 43 miles. He also sent some volunteers of the Gram Panchayat to look for the appellant. On Thursday, May 9, 1957, at about 10 a.m., Rup Ram and the chaukidar appear- ed at the police station of Kolebera and Rup Ram gave an information, which was recorded by the Assistant Sub- Inspector of Police. This information referred to the statements of Aghani and to the other facts which had been discovered by that time. On the same Thursday, the appellant was found in the house of his sister’s husband in another village called Karmapani. The appellant was caught hold of by the village volunteers and brought back to village Banmunda on Thursday. At about 1 or 2 p. m. on that day, he was questioned by Dalpat Sai (P.W.4) mukhia of the Gram Panchayat, Krishna Chandra Singh (P. W. 7), Sarpanch of the Gram Panchayat, and Praduman Singh (P. W. 13), one of the panches of the Panchayat, and it is stated that the appellant made an extra-judicial confession to these persons to the effect that he had killed the child Baisakhi for greed of money, as a contractor who was building a, bridge on the Lurki river had offered Rs. 80 for a human head. The appellant was detained by the aforesaid village authorities till the Assistant Sub-Inspector of Police arrived at the village on Friday, May 10, 1957. The Assistant Sub- Inspector arrived at about 3 a.m. He was taken to the place where the headless dead body of Baisakhi lay. The Assistant Sub-Inspector made an inquest on the dead body and seized the articles found there including 29 beads of the ” mala “‘ which Baisakhi was wearing and which lay scattered near the place. The Assistant Sub-Inspector of Police arrested the appellant, who was already in custody of the mukhia. The house of the 1341 Weapon called ” balua ” was found in the north facing room of the house, between a wall and the roof. This ” balua ” had certain blood-stains on it, but the stains having disintegrated, the origin of the blood could not be determined. It is stated that on being questioned where the head of the girl Baisakhi was, the appellant took the Assistant Sub-Inspector of Police and some of the villagers to a place at a short distance of 100 yards or so from where the dead body was. At that place were discovered some strands of bloodstained hair which were seized by the Assistant SubInspector of Police. The strands of hair looked like the hair on the bead of a female person and the Chemical Examiner later reported that the strands of hair were stained with human blood and “appeared to be scalp hair of human (female) origin morphologically “. After further investigation by two different Sub-Inspectors of Police, the appellant was sent up for trial. There was an enquiry by a Magistrate of the first class, who, at the conclusion of the enquiry, committed the appellant for trial by the Court of Session. The defence of the appellant was that he had been falsely implicated. He denied that he killed Baisakhi near the jungle at Amtis Chua hill. He further denied that he had made any extra-judicial confession to Dalpat Sai, Krishna Chandra Singh and Praduman Singh. He denied that any blood- stained weapon was found in his house by the Assistant Sub- Inspector of Police and he also denied that he was absent from his village or was found in the house of his sister’s husband in village Karmapani. The learned Additional Judicial Commissioner, as also the High Court, rightly stated that the case against the appellant rested on (a) circumstantial evidence and (b) the extra-judicial confession stated to have been made by the appellant. The courts below concurrently held that the extra-judicial confession was voluntary and it did not appear to them to have been caused by any inducement, threat or promise having reference to the charge made against 1342 he appellant so as to attract the provisions of s. 24 of the Evidence Act. They further held that the confession, though later denied by the appellant, was sufficiently corroborated by the circumstantial evidence and the confession and the circumstantial evidence read together led to only one reasonable inference’, namely, that the appellant had killed the child Baisakhi in the hope of getting some money. It is not disputed that in an appeal filed by special leave under Art. 136 of the Constitution it is not normally open to the appellant to raise questions of fact or to ask for interference by us with concurrent findings of fact, unless the findings are vitiated by errors of law or the conclusions reached by the courts below are so patently opposed to well-established principles as to amount to a miscarriage of justice. Mr. Iyengar for the appellant has urged before us three main points. Firstly, he has submitted that the extra-judicial confession said to have been made by the appellant is not admissible in evidence. Secondly, he has contended that even if admissible, there is no guarantee of its truth. Thirdly, he has submitted that even with regard to circumstantial evidence, the courts below have relied on inadmissible evidence, with particular reference to the statements of Aghani, to establish one of the circumstances, namely, that the appellant was last seen with Baisakhi before her murder. His argument is that the other circumstances established against the appellant, namely, the recovery of the blood-stained ” balua “, of the blood-stained hair and the absence of the appellant from the village on Wednesday, do not carry the case against the appellant far enough so as to complete the chain and make them inconsistent with any hypothesis other than the guilt of the appellant. He has submitted that in considering the circumstantial evidence in this case the courts below have departed from the well established principle that the circumstances affirmatively proved against an accused person must be of such a character as to be consistent only with his guilt and inconsistent with any reasonable hypothesis of his innocence. 1343 Before we examine the aforesaid submissions, it is necessary to state that the finding of the courts below that Baisakhi was murdered some time between May 7 and May 8, 1957, and that the headless dead body which was discovered on May 8, 1957, was correctly identified as the dead body of the girl Baisakhi has not been challenged before us. The postmortem examination on the dead body was held on May 11, 1957, and the ante-mortem injuries which the doctor found were (1) complete severance of the head from the neck,(2)one incised wound on the left shoulder and (3) anincised wound on the left upper arm. The doctor’s evidence makes it quite clear that the unfortunate girl was brutally done to death. The identification of the headless dead body also rests on a very sure foundation. We have already referred to the clothing, ring, beads, etc., from which the identity of the dead body was established. The murder of the girl Baisakhi having been clearly established, the courts below rightly applied their mind to a consideration of the principal question in the case, namely, if the appellant was responsible for that murder. This brings us to a consideration of the submissions made on behalf of the appellant. We may say at the very outset that we agree with learned counsel for the appellant that the statements of Aghani, who unfortunately died within a few months of the occurrence before her statements could be recorded in a judicial proceeding, were not admissible in evidence either under s. 32 or s. 33 of the Evidence Act. Section 33 is clearly out of the way because Aghani made no statements in a judicial proceeding or before any person authorised by law to take her evidence. The only relevant clause of s. 32 which may be said to have any bearing is cl. (1) which relates to statements made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. In the case before us, the statements made by Aghani do not relate to the cause of her death or to any of the circumstances relating to her death ; on the contrary, the statements relate to the death of her sister. We are, therefore, of the opinion 1344 that the statements do not come within s. 32(1) of the Evidence Act and, indeed, Mr. Dhebar appearing on behalf of the State, has conceded that s. 32(1) does not apply to the statements of Aghani. Excluding the statements of Aghani, what then is the evidence against the appellant ? Firstly, we have the extra- judicial confession. Then, we have the following circumstances which the courts below have held to have been clearly established against the appellant, namely, (a) recovery of the blood-stained ” balua ” from a room of the appellant, (b) recovery of the blood-stained strands of hair from a place pointed out by the appellant and (c) disappearance of the appellant from the village immediately after the murder and his arrest in village Karmapani in circumstances mentioned by Maheshwar Sai (P. W. 6). Lastly, there is another adverse circumstance which arises out of the total denial by the appellant of the recovery of the blood-stained ” balua ” and of his arrest in village Karmapani. As to the extra-judicial confession, two questions arise: is it voluntary, and, if so, is it true ? The appellant denied at a later stage that he had made a confession, but it is not necessary to consider in this case the abstract question as to whether, as against its maker, a conviction can be based on a confession which is found to be voluntary and true. It is enough to state that usually and as a matter of caution, courts require some material corroboration to such a confessional statement, corroboration which connects the accused person with the crime in question, and the real question which falls for decision in the present case is if the circumstances proved against the appellant afford sufficient corroboration to the confessional statement of the appellant, in case we hold that the confessional statement is voluntary and true. Let us first see if the confession was voluntary. Section 24 of the Evidence Act states: “A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, 1345 proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him “. Mr. Iyengar has referred us to the evidence of the three witnesses, Dalpat Sai (P.W. 4), Krishna Chandra Singh (P. W. 7), and Praduman Singh (P. W. 13), Mukhia, Sarpanch and Panch respectively of the Gram Panchayat. We agree with Mr. Iyengar that having regard to the provisions of the Bihar Panchayat Raj Act (Bihar VIII of 1948) the aforesaid three persons can be said to be persons in authority within the meaning of s. 24. The question, however, is-are there any circumstances which tend to show that the making of the confession appears to have been caused by any inducement, threat or promise, having reference to the charge against the appellant and proceeding from any one of the aforesaid three persons and sufficient in the opinion of the court to give the appellant grounds which would appear to him to be reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. The courts below have categorically answered this question in the negative. We have examined the evidence of the three witnesses mentioned above. That evidence shows that the appellant was brought to the house of Dalpat Sai (P. W. 4) at about 10 a.m. on Thursday (May 9, 1957). He was questioned for some time; Dalpat Sai (P.W. 4) said that he was questioned for about two hours. The evidence of Dalpat Sai makes it clear, however, that it was not a process of continuous questioning for two hours. Ratan was given some food and then, when he was questioned, he kept quiet for some time and then said that he had killed the girl because the contractor who was building the bridge on river Lurki had offered to pay a sum of Rs. 80 for a human head. Having examined the evidence of the three witnesses who prove the extra-judicial confession, we do not come to 1346 a conclusion different from the one arrived at by the courts below. Mr. Iyengar referred us to the observations made by Cave J. (as he then was) in The Queen v. Thompson(1). That was a case in which a prisoner was tried for embezzling the money of a company. It was proved at the trial that, being taxed with the crime by the Chairman of the company, the prisoner said that he had taken the money. The Chairman stated that at the time of the confession, no threat or promise was made, but he said to the prisoner’s brother, ” It will be the right thing for your brother to make a statement ” and the court drew the inference that the prisoner, when he made the confession, knew that the Chairman had spoken these words to his brother. In these circumstances, the learned Judge said: ” I prefer to put my judgment on the ground that it is the duty of the prosecution to prove, in case of doubt, that the prisoner’s statement was free and voluntary, and that they did not discharge themselves of this obligation “. He further added that there were always reasons to suspect those confessions which were supposed to be the offspring of penitence and remorse, and which nevertheless were repudiated by the prisoner at the trial. It is true that in the case under our consideration the appellant denied to have made the confession which he had made earlier; but we find no such circumstances as were present in Thompson’s case (1), such as the statement of the Chairman of the company to the brother of the prisoner. It is true that the appellant was brought back from village Karmapani by members of the village volunteer force. He was taken to the village authorities to whom he made a confession. The evidence does not even remotely suggest that any threat, promise or inducement was made. The only circumstance relied on by Mr. Iyengar is that it took about two to three hours from the time when the appellant was brought to the house of the mukhia up to the time when he made his confessional statement. Mr. Iyengar has relied on In re Kataru Chinna Papiah (2), where a Superintendent of Police questioned the accused person for four hours at night (1) (1893) 2 Q. B. 12, 18. (2) A.I.R. 1940 Mad. 136. 1347 and again for two hours in the morning. It was pointed out that this was a flagrant violation of the relevant rule in the instructions issued to police officers. All that we need say is that there was no such questioning in the present case. Another decision to which Mr. Iyengar has invited our attention is Hashmat Khan v. The Crown (1). We do not think that that decision is of any assistance to Mr. Iyengar. It was held therein that a mere possibility of there having been some inducement is not sufficient to attract s. 24 of the Evidence Act; but only when it appears to the court that the confession has been made as a result of some inducement held out by a person in authority that it becomes irrelevant. That was a case in which the accused person, when questioned, was told that it would be better for him if he told the truth; it was held that this amounted to an inducement within the meaning of s. 24 of the Indian Evidence Act. As to the truth of the confession, nothing has been brought to our notice which would show that the confessional statement contained any untrue or inaccurate statement. It is true that the prosecution has given no evidence to show that the contractor who was building the bridge over river Lurki, or for that matter, any contractor, had offered a sum of Rs. 80 for a human head. In the very nature of things, it is not expected that any contractor, even if he had made such an offer, will admit having done so, and we do not think that the prosecution can be asked to give evidence in support of any such offer. We recognise that in ordinary and normal circumstances nobody asks for a human head for building abridge; nor is it usual normally for a person to accept such an offer, even if it is made. We must not forget, however, that we are dealing in this case with aboriginal people who are ,still steeped in superstition. It is worthy of note that Maheshwar Sai (P. W. 6) said that when the appellant was taken in custody in village Karmapani, he did not even enquire why he was arrested; on the contrary, he offered Rs. 20 and a he-goat to the witness and (1) (1934) I.L.R. 15 Lah. 856. 171 1348 implored the latter to save him. Such a statement was again of an incriminatory nature, and if the evidence of Maheshwar Sai is correct, the statement was absolutely voluntary and was not the result of any questioning at all. For these reasons, we do not think that the reference to an offer of Rs. 80 for a human head in the confessional statement of the appellant necessarily destroys its veracity. There can be no doubt that the recovery of the blood-stained ” balua ” (even though the origin of the blood could not be determined owing to disintegration) and of the blood-stained strands of female hair at the place pointed out by the appellant, are circumstances clearly proved against the appellant. These circumstances may not be sufficient by themselves to prove that the appellant was the murderer, but there is no doubt that they lend assurance to the confes- sional statement of the appellant, assurance of a kind which connects the appellant with the crime in question. This is a case in which the confession and the circumstances have to be read together. There is the additional circumstance that soon after the murder the appellant disappeared from his village and when arrested in another village, his conduct was such as to show that he was suffering from a guilty mind. On the top of all this, there is the total denial by the appellant that any blood-stained ” balua ” was recovered from his house or that he disappeared from the village after the murder. It is unfortunate that the learned Additional Judicial Commissioner did not ask the appellant to explain the recovery of the blood-stained strands of female hair. That was an important circumstance against the appellant and when the learned Additional Judicial Commissioner examined the appellant under the provisions of s. 342 of the Code of Criminal Procedure he should have asked the appellant to explain this circumstance. We take this opportunity of inviting the attention of the learned Additional Judicial Commissioner to this very serious omission. Another omission on the part of the learned Additional Judicial Commissioner is his failure to comply with the provisions of s. 287 of the Code of 1349 Criminal Procedure. The examination of the accused recorded by or before the Committing Magistrate does not appear to have been tendered by the prosecutor in the present case; at least we do not find any such statement in the printed paper-book. We are satisfied, however, that no prejudice has been caused. The Assistant Sub-Inspector of Police who gave evidence of the recovery of blood-stained hair from a place pointed out by the appellant was not even cross-exa- mined on the point. The defence of the appellant was a total denial and even if the recovery of the blood-stained strands of female hair was put to the appellant, he would undoubtedly have denied such recovery as having been made at his pointing out the place. To sum up: we see no reasons to differ from the conclusion arrived at by the courts below that the confessional statement made by the appellant was voluntary and admissible; there are no reasons for thinking that it was not true. The circumstances clearly proved against the appellant, even excluding the circumstance which rested on the statements of Aghani, afford sufficient corroboration to the confession of the appellant, though denied at a later stage, and the corroboration is of such a nature as to connect the appellant with the murder of the child Baisakhi. The only reasonable inference which can be drawn from the confession read with the circumstantial evidence is that the appellant killed the child Baisakhi between May 7 and 8, 1957, in the hope of getting some money. Whether that hope was realised or not is more than we can tell. The head was never recovered, but there can be no doubt that the dead body was correctly identified to be the dead body of the child Baisakhi. As to the sentence, in view of the circumstances in which the child Baisakhi was killed, we do not think ,that we shall be justified in interfering with it in the present case. For these reasons, we hold that the appeal is without merit and must be dismissed. Appeal dismissed. The lands in question are situate in lot Ahiyapur which is one of the villages forming part of the permanently settled estate of Burdwan and had been set apart as Chaukidari Chakaran lands to be held by the Chaukidars for rendering service in the village as watchmen. At the time of the permanent settlement the income from these lands was not taken into account in fixing the jama payable on the estate. Some time before the enactment of the Bengal Patni Taluks Regulation, 1819, the entire village of Ahiyapur was granted by the then 1310 Zamindar of Burdwan, to the predecessors-in-title of the defendants on Patni settlement. In 1870 the Village Chaukidari Act came into force and acting under the provisions of that Act the Government put an end to the services of the Chaukidars resumed the lands and imposed an assessment thereon, and, subject to it, transferred the lands to the Zamindar. On June 3, 899, the Zamindar granted the suit lands on Patni to the predecessors-in-title of the defendants who were the then holders of the village in Patni. In proceedings taken by the Zamindar under the provisions of the Bengal Patni Taluks Regulation, 1819, the suit lands were brought to sale for arrears of rent and purchased by him. On February I3, 1941, the Zamindar sold the lands to the appellant who sued to recover possession thereof from the defendants. The defendants resisted the suit on the ground, inter alia, that the effect of the grant of the Chaukidari Chakaran lands on June 3, 1899, was to make them part and parcel of the Patni settlement of the village of Ahiyapur and that, in consequence, the sale of those lands, apart from the village of Ahiyapur, was bad as being a sale of a portion of the Patni. Held, that when the Zamindar made a grant of the Chaukidari Chakaran lands which formed part of a village which had previously been settled in Patni, it was open to the parties to agree that those lands should form a new and distinct Patni and the result of such an agreement would be that while the grantee would hold those lands in Patni right, that is to say, that the tenure would be permanent, heritable and alienable, so far as his liability to pay jama and the corresponding right of the Zamindar to sell it under the Regulation if there was a default in the payment thereof were concerned, the new grant would be a distinct Patni, independent of the original Patni. Held, further, that construing the grant dated June 3, 899, as a whole, the intention of the parties as expressed therein was that the Chaukidari Chakaran lands were to be treated as a distinct Patni and that, therefore, the sale of the lands for arrears of rent was valid. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 108 of 1954. Appeal from the judgment and decree dated March 21, 1952, of the Calcutta High Court in Appeal from Appellate Decree No. 971 of 1950, arising out of the judgment and decree dated August 29, 1950, of the Court of District Judge of Zillah Burdwan in Title Appeal No. 247/16 of 1948 against judgment and decree dated September 25, 1948, of the Court of Additional Sub-Judge, 1st Court, Burdwan, in Title Suit No. 7 of 1946/27 of 1947. 1311 N. C. Chatterjee and Sukumar Ghose, for the appellant. J. N. Banerjee and P. K. Ghose, for the respondents. 1958. September 18. The Judgment of the Court was delivered by VENKATARAMA AIYAR J.-This is an appeal by the plaintiff against the judgment of the High Court of Calcutta in a second appeal which, in reversal of the judgments of the Courts below dismissed his suit, which was one in ejectment. The suit property is a Mahal of the extent of 84 Bighas 18 Cottas situated within lot Ahiyapur village, which is one of the villages forming part of the permanently settled estate of Burdwan Zamindari. This village was granted by the Maharaja of Burdwan in Patni settlement to the predecessors- in-title of defendants I to 7. The exact date of this grant does not appear, but it is stated that it was sometime prior to the enactment of the Bengal Patni Taluks Regulation, 1819 (Bengal Regulation VIII of 1819), hereinafter referred to as the Regulation, and nothing turns on it. The Mahal with which this litigation is concerned, had been at or prior to the permanent settlement set apart as Chaukidari Chakaran lands; that is to say, they were to be held by the Chaukidars for rendering service in the village as watchmen. In 1870, the Village Chaukidari Act, 1870 (Ben. VI of 1870), hereinafter referred to as the Act, was passed, and s. 48 of that Act provides that all Chaukidari Chakaran lands assigned for the benefit of any village shall be transferred to the zamindar of the estate in the manner and subject to the provisions contained in the Act. Under s. 50, the Collector is authorized to make an order transferring those lands to the Zamindar after determining the assessment payable thereon, and s. 51 enacts that: ” Such order shall operate to transfer to such zamindar the land therein mentioned subject to the amount of assessment therein mentioned, and subject 1312 to all contracts theretofore made, in respect of, under, or by virtue of, which any person other than the zamindar may have any right to any land, portion of his estate, or tenure, in the place in which such land may be situate. ” In accordance with the provisions aforesaid, the suit properties were transferred to the Maharaja of Burdwan, and on June 3,1899, he granted the same to the predecessors-in- title of defendants I to 7, who at that time held the Patni interest in respect of lot Ahiyapur. Under the grant which has been marked as exhibit B, the yearly rental for the area was fixed at Rs. 126-8 as., out of which Rs. 84-4 as., had to be paid to the Panchayat within the 7th of Baisakh for being credited to the Chaukidari Fund and the balance of Rs. 42-4 as., was to be paid to the Zamindar within the month of Chaitra. Exhibit B also provides that in default of payment of kist the lands are liable to be sold in proceedings taken under the Bengal Regulation VIII of 1819. Acting under this clause, the Maharaja applied under s. 8 of the Regulation to bring the suit lands to sale for realisation of arrears, and at the auction held on May 15, 1937, himself became the purchaser. On February 13, 1941, he granted the lands again on Patni to the appellant, who filed the suit, out of which the present appeal arises, in the Court of the Subordinate Judge, Burdwan, to recover possession thereof from the defendants alleging that they had trespassed thereon. The respondents contested the suit on the ground that, in fact, there were no arrears of rent due under Exhibit B, and that the sale was therefore void. The Subordinate Judge held that there were arrears of rent due from the respondents, and that further as they had not sued to set aside the sale under s. 14 of the Regulation within the time limited by law, they could not set up its invalidity as a defence to the action in ejectment. The defendants preferred an appeal against this judgment to the District Court of Burdwan, and there raised a new contention that under the grant, Exhibit B, the suit lands became part of lot Ahiyapur, and that a sale of those lands was 1313 illegal as being a sale of a portion of the Patni. The District Judge after observing that the point was taken for the first time, held on a construction of Exhibit B that it created a new Patni, and that it could therefore be brought to sale, and he also held that s. 14 of the Regulation operated as a bar to the validity of the sale being questioned on the ground that the rent claimed was not, in fact, due. He accordingly dismissed the appeal. The respondents took the matter in second appeal to the High Court, and that was heard by a Bench consisting of Das Gupta and Lahiri JJ. who differed from the District Judge both on the construction of Exhibit B and on the bar of limitation based on s. 14 of the Regulation. They held that the effect of Exhibit B was merely to make the suit lands part and parcel of the Patni lot Ahiyapur, and that, therefore, the sale of those lands only was bad, as being a sale of a part of the Patni. They further held that as such a sale was void, s. 14 of the Regulation had no application. They accordingly allowed the appeal, and dismissed the suit. It is against this judgment that the present appeal has been brought on a certificate granted by the High Court under Art. 133(1)(a). Mr. N. C. Chatterjee for the appellant urged the following contentions in support of the appeal: (1) The defendants did not raise either in the written statement or during the trial, the plea that under the sanad, Exhibit B, the Chaukidari Chakaran lands comprised therein became part of the Patni settlement of lot Ahiyapur, and, in consequence, their sale was bad as being of a part of the Patni, and the learned Judges should not have allowed that point to be raised in appeal. (2) Exhibit B properly construed must be held to create a new Patni distinct from lot Ahiyapur, and its sale is therefore valid. (3) Assuming that the sale is invalid as being of a part of a tenure, the only right of the defendants was to sue to have it set aside, as provided in s. 14 of the Regulation, and that not having been done, it is not open to them to attack it collaterally in these proceedings. We see no substance in the first contention. It is 1314 true that the defendants did not put forward in the trial Court the plea that the effect of Exhibit B was to incorporate the suit lands in lot Ahiyapur Patni, and that, in consequence, the sale was illegal as being of a part of the Patni. On the other hand, the written statement proceeds on the view that Exhibit B created a new Patni unconnected with lot Ahiyapur, and the only defence raised on that basis was that no arrears of rent were due under Exhibit B, and that the sale was therefore invalid. But the true nature of the grant under Exhibit B is a matter to be decided on a construction of the terms of the document, and that is a question of law. It is argued for the appellant that it would be proper in determining the true character of the grant under Exhibit B to take into account surrounding circumstances, that to ascertain what those circumstances are, it will be necessary to take evidence, and that, in consequence, a question of that kind could not be permitted to be agitated for the first time in appeal. But it is well-settled that no evidence is admissible on a question of construction of a contract or grant, which must be based solely on the terms of the document, there being no suggestion before us that there is any dispute as to how the contents of the document are related to existing facts. Vide Balkishen Das v. Legge (1) and Maung Kyin v. Ma Shwe La (2). It should, moreover, be mentioned that when the defendants sought to raise this contention in their appeal in the District Court, no objection was taken by the plaintiff thereto. Under the circumstances, the learned Judges were right in allowing this point to be taken. This contention must therefore be rejected. The next point for determination is as to the true character of the grant under Exhibit B, whether it amounts to a new Patni with reference to the Chaukidari Chakaran lands as contended for by the appellant, or whether it incorporates those lands in the Patni of lot Ahiyapur, so as to make them part and parcel of the lands comprised therein, as is maintained by the respondents. To appreciate the (1) (1899) L.R. 27 I.A. 58, 65. (2) (1917) L.R- 44 I.A. 236, 243. 1315 true position, it is necessary to examine what the rights of the Zamindar and of the Patnidar were with respect to Chaukidari Chakardan lands at the time of the grant, Exhibit B. These lands had been originally set apart as remuneration for the performance of services by the village chaukidars as watchmen, and for that reason when the village was granted to the Zamindar in permanent settlement, the income therefrom was not taken into account in fixing the jama payable by him, though they passed to him under the permanent settlement. Then came the Village Chaukidari Act, and under that Act the Government put an end to the services of the Chaukidars as village watchmen, resumed the lands and imposed assessment thereon, and, subject to it, transferred them to the Zamindar; and where the Zamindar had already parted with the village in which the lands were situate, by granting Patni, it became necessary to define the rights of the Zamindar and the Patnidar with reference to those lands. Dealing with this matter, s. 51 of the Act provides that the title of the Zamindar on resumption and transfer by the Government shall be subject to ” all contracts theretofore made “. Under this section, the Patnidar would be entitled to the Chaukidari Chakaran lands in the same right and on the same terms on which lie held the village in which they are situate. The nature of this right has been the subject of consideration in numerous authorities, and the law on the subject is well-settled. In Ranjit Singh v. Maharaj Bahadur Singh (1), it was held by the Privy Council that though the reservation under s. 51 is of rights under contracts made by the Zamindar and the word ” contract ” primarily means a transaction which creates personal obligations, it might also refer to transactions which create real rights, and that it was in that sense the word was used in s. 51, and that accordingly the Patnidar was entitled to institute a suit against the Zamindar for possession of those lands and was not obliged to suit for specific performance. But this does not mean that the Patnidar is (1) (1918) L.R. 45 I.A. 162. 167 1316 entitled to hold the lands free of all obligations. He is under a liability to pay to the Zamindar the assessment due thereon, when it is fixed under s. 50, and also a share of profits. Vide Bhupendra Narayan Singh v. Narapat Singh (1), where it was held by the Privy Council that when Chaukidari Chakaran lands included in a Patni settlement had been resumed and transferred to the Zamindar under s. 51 of the Act, he is entitled to the payment of a fair and equitable rent in respect thereof, and that the fixing of the rent is a condition to the Patnidar being put in possession. Vide also Rajendra Nath Mukherjee v. Hiralal Mukherjee (2) and Gopendra Chandra v. Taraprasanna (3). These being the rights and obligations of the Zamindar and the Patnidar under s. 51 of the Act, a grant of the Chaukidari Chakaran lands by the former to the latter serves, in fact, two purposes. It recognises that the grantee is entitled to hold those lands by virtue of his title as Patnidar of the village of which they form part, and it fixes the amount payable by him on account of assessment and share of profits. The question then arises as to what the exact relationship is in which the new grant stands to the original Patni grant. Now, when s. 51 of the Act recognises and saves rights which had been acquired under contract with the Zamindar, its reasonable implication is that the rights so recognised are the same as under the contract, and that, in consequence, the settlement of the Chaukidari Chakaran lands in Patni must be taken to be a continuance of the Patni of the village in which they are included. But it is open to the parties to agree that the Chaukidari Chakaran lands should form a new and distinct Patni, and the result of such an agreement will be that while the grantee will hold those lands in Patni right, that is to say, the tenure will be permanent, heritable and alienable so far as his liability to pay jama and the corresponding right of the Zamindar to sell it under the Regulation if there is any default in the (1) (1925) L.R. 52 I.A. 355. (2) (1906) 14 C.W.N. 995. (3) (1910) I.L.R. 37 Cal. 598. 1317 payment thereof are concerned, the now grant will be an entity by itself independent of the original Patni. That that could be done by agreement of parties is well-settled, and is not disputed before us. If that is the true position, then the real question to be considered is, what is the agreement of parties with reference to the Chaukidari Chakaran lands, whether they are to be constituted as an independent Patni or whether they should be treated as a continuation of the original Patni or an accretion thereto, and the answer to it must depend on the interpretation to be put on the grant. It is now necessary to refer to the material terms of Exhibit B under which the Chaukidari Chakaran lands were granted to the predecessors of respondents I to 7. It begins by stating that the Patnidars of lot Ahiyapur appeared before the Zamindar and ,prayed for taking Patni settlement of the said 84 Bighas 18 Cottas of land at a yearly rental of Rs. 126/8 as.”, and then provides how the amount is to be paid. Then there is the following clause, which is important: “You will pay the rent etc., Kist after Kist according to the Kistbandi in accordance with law, and if you do not pay the same, I will realise the arrears together with interest and costs by causing the aforesaid lands to be sold by auction by instituting proceedings under Regulation VIII of 1819 and other laws which are in force or will come into force.” Then follow provisions relating to the transfer by the Patnidars of ” the aforesaid lands “, succession by inheritance or by will to ” the aforesaid lands ” and the registration of the name of the transferee or successor in the Sherista, and it is expressly stated that “so long as the name of the new Patnidar is not recorded in the Sherista, the former Patnidar whose name is recorded in the Sherista will remain liable for the rent, and on a sale of the Mahal by auction on institution of proceedings against him under Regulation VIII of 1819 or any other law that will be in force for realisation of arrears of rent, no objection thereto on the Part of the new Patnidar can be entertained.” 1318 Then ,there are two clause on which on the respondents rely, and they are in these terms: ” If in future it transpires that any other persons besides yourselves have Patni rights in the Patni interest of the, said lot Ahiyapur, such persons shall have Patni rights in these Chakaran lands also to the same extent and in the same manner as they will be found to have interests in the Patni of the aforesaid lot, and if for the said reason any person puts forward any claim against the Raj Estate and the Raj Estate has to suffer any loss therefor, you will make good the said claim and the loss without any objection. If in future the Patni interest in the said lot Ahiyapur be transferred for liability for arrears of rent or if the same comes to an end for any reason, then your Patni interest in these Chakaran lands also will be transferred or will come to an end alongwith the original Patni ,simultaneously.” It is on these two clauses that the learned Judges in the Court below have based their decision that the intention of the par-ties was to treat the suit lands as part of the Patni of lot Ahiyapur. Now, it cannot be disputed that the two clauses aforesaid afford considerable support to the conclusion to which the learned Judges have come. The first clause provides that if besides the grantee under Exhibit B there were other persons entitled to Patni rights in lot Ahiyapur, those persons also shall have Patni rights in Chaukidari Chakaran lands to the same extent as in Patni Ahiyapur. That clearly means that the rights conferred on the grantees under Exhibit B have their roots in the Patni lot of Ahiyapur. Likewise, the provision in the last clause that the grantees will lose their rights to the Chaukidari Chakaran lands if their interest in Ahiyapur Patni was sold clearly suggests that the grant under Exhibit B is to be an annexe to the grant of Ahiyapur. As against this, the appellant argues that the other clauses in Exhibit B quoted above strongly support his contention, and that when the document is read as a whole, it unmistakably reveals an intention to treat the suit lands as a distinct Patni. We must now 1319 refer to these clauses. Exhibit B begins by reciting that the grantees desired to take a Patni settlement of 84 Bighas 18 Cottas, which is some indication, though not very strong, that it is to be held as a distinct entity. We have then the clause which provides that when there is default in the payment of kist, the lands are liable to be sold in proceedings instituted under the Regulation. Now, the law had long been settled that a sale of a portion of a Patni is bad, but that if by agreement of all the parties interested different portions thereof are held under different sadads, which provide for sale of those portions for default in pay- ment of kist payable respectively thereon, then each of those sanads might be held to have created a separate Patni in respect of the portion comprised therein. Vide Mohadeb Mundul v. Mr. H. Cowell(1) and Monomothonath Dev and another v. Mr. G. Glascott (2). When, therefore, the Zamindar and the Patnidar agreed under Exhibit B that the lands comprised therein could be sold under the Regulation when there was default in payment of kist fixed therefor, they must clearly have intended that those lands should be constituted into a distinct Patni. Otherwise, the clause will be inoperative and void, and indeed, the learned Judges in the Court below have, on that ground, declined to give any effect to it. Now, it is a settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim ” ut res magis valeat quam per-eat “. What has to be considered therefore is whether it is possible to give effect to the clause in question, which can only be by construing Exhibit B as creating a separate Patni, and at the same time reconcile the last two clauses with that construction. Taking first the provision that if there be other persons entitled to the Patni of lot Ahiyapur they are to have the same rights in the land comprised in Exhibit B, (2) (1873) 20 Weekly Reporter 275. 1320 that no doubt posits the continuance in those persons of the title under the original Patni. But the true purpose of this clause is, in our opinion, not so much to declare the rights of those other persons which rest on statutory recognition, but to provide that the grantees tinder the document should take subject to those rights. That that is the purpose of the clause is clear from the provision for indemnity which is contained therein. Moreover, if on an interpretation of the other clauses in the grant, the correct conclusion to come to is that it creates a new Patni in favour of the grantees thereunder, it is difficult to see how the reservation of the rights of the other Patnidars of lot Ahiyapur, should such there be, affects that conclusion. We are unable to see anything in the clause under discussion, which militates against the conclusion that Exhibit B creates a new Patni. Then there is the clause as to the cesser of interest of the grantees in the Chaukidari Chakaran lands when their title to lot Ahiyapur comes to an end, and according to the respondents, this shows that under Exhibit B the Chaukidari Chakaran lands are treated as part and parcel of the Ahiyapur Patni. If that were so, a sale of lot Ahiyapur must carry with it the Chaukidari Chakaran lands, they being ex hypothesi, part and parcel thereof, and there was no need for a provision such is is made in the last clause. But that clause would serve a real purpose if the Patni under Exhibit B is construed as separate from that of lot Ahiyapur. In that view, when the major Patni of lot Ahiyapur is sold, the intention obviously is that the minor Patni under Exhibit B, should not stand out but be extinguished,-a result which could be achieved only by a special provision. We should finally refer to the clauses in Exhibit B providing for transfer of or succession to the Chaukidari Chakaran lands and for the recognition of such transferee or successor as a Patnidar of those lands. It is clear from these provision,s that such a transferee or successor is to hold the lands as a Patnidar, different from the Patnidar of lot Ahiyapur. Reading these clauses along with the last clause, it seems clear that the intention of the parties 1321 was that while a transfer of the Ahiyapur Patni by sale should extinguish the title of the holders of the Chaukidari Chakaran lands a transfer of these lands would have no effect on the title to the lot Ahiyapur Patni. Construing Exhibit B, as a whole, we are of opinion that the intention of the parties as expressed therein was that the Chaukidari Chakaran lands should be held as a distinct Patni. We must now refer to the decision on which the learned Judges in the Court below have relied in support of their conclusion. In Kanchan Barani Debi v. Umesh Chandra (1), the facts were that the Maharaja of Burdwan had created a Patni of lot Kooly in 1820. The Chaukidari Chakaran lands situated within that village were resumed under the Act and transferred to the Zamindar who granted them in 1899 to one Syamlal Chatterjee in Patni on terms similar to those in Exhibit B. In 1914 the Patni lot Kooly was sold under the Regulation, and purchased by Sint. Kanchan Barani Debi. She then sued as such purchaser to recover possession of the Chaukidari Chakaran lands. The defendants who represented the grantees under the Patni settlement of 1899 resisted the suit on the ground that the sale of Patni Kooly did not operate to vest in the purchaser the title in the Chaukidari Chakaran lands, as they formed a distinct Patni. Dealing with this contention, B. B. Ghose J. who delivered the judgment of the Court, observed : concerned to alter the terms of the original patni if they chose to do so; and what we have to see is whether that was done. In order to do that, we have to examine the terms of the pattah by which the Chaukidari Chakaran lands were granted to Syamlal Chatterjee.” The learned Judge then refers to the two clauses cor- responding to the last two clauses in Exhibit B, and comes to the conclusion that their effect was merely to, restore the position as it was when the original Patni was created, and that, in consequence, the purchaser was entitled to the Patni as it was created in 1820, (1) A.I.R. 1925 Cal. 807, 1322 and that the plaintiff was entitled to the possession of the Chaukidari Chakaran lands as being part of the Patni. Now, it is to be observed that in deciding that the Chaukidari Chakaran lands granted in 1899 became merged is lot Kooly, as it was in 1820, the learned Judge did not consider the effect of the clause providing for sale of those lands as a distinct entity under the provisions of the Regulation when there was default in the payment of ret payable thereon under the deed, and that, in our opinion, deprives the deci- sion of much of its value. In the result, we are unable to hold that the two clauses on which the learned Judges base their conclusion are really inconsistent with the earlier clauses which support the view that the grant under Exhibit B is of a distinct Patni. Nor do we agree with them that the earlier clause providing for the sale of the Chaukidari Chakaran lands in default of the payment of jama, should be construed so as not to override the later clauses. If, in fact, there is a conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well-established that it is the earlier clause that must override the later clauses and not vice versa. In Forbes v. Git (1), Lord Wrenbury stated the rule in the following terms : ” If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant and the earlier clause prevails. In this case the two clauses cannot be reconciled and the earlier provision in the deed prevails over the later.” We accordingly hold that Exhibit B created a new Patni and that the sale of the lands comprised therein is not bad as of a portion of a, Patni. We are conscious that we are differing from the learned Judges of the Court below on a question relating to a local tenure on which their opinion is, by reason of the special knowledge and experience which they have of it, entitled to the greatest weight. It is also true that the decision in Kanchan Barani Debi v. (1) [1922] 1 A.C. 256,259. 1323 Umesh. Chandra (1) has stood now for over three decades, though it is pertinent to add that its correctness does not appear to have come up for consideration in any subsequent decision of the Calcutta High Court, prior to this litigation. But then, the question is one of construction of a deed, and our decision that the effect of an agreement of the kind in Exhibit B was to constitute the Chaukidari Chakaran lands into a distinct Patni will not result in any injustice to the parties. On the other hand, the rule that a portion of a Patni should not be sold being one intended for the benefit of the Patnidars, there is no reason why an agreement entered into by them with the Zamindars providing for the sale of a portion, thereof-which is really to their advantage, should not be given effect to. Having anxiously considered the matter, we have come to the conclusion that Exhibit B creates a distinct Patni, that the sale thereof on May 15, 1937, is valid, and that the plaintiff has therefore acquired a good title to the suit lands under the grant dated February 13, 1941. In this view, it is unnecessary to express any opinion on the point that was the subject of considerable argument before us as to whether it is open to the defendants to raise the invalidity of the sale held on May 15, 1937, in answer to this action, they not having taken steps to have set it aside, as provided in s. 14 of the Regulation. In the result, the appeal is allowed, the judgment of the lower Court reversed and that of the District Judge restored, with costs throughout. Appeal allowed. On September 6, 1952, the appellant, who was being tried by an Assistant Sessions Judge and a jury, was caught while giving a bribe to one of the jurors. By a notification dated November 27, 1952, the Government of West Bengal, acting under s. 4(2) Of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, entrusted the case against the appellant under s. 161/116 Indian Penal Code to the Special judge, Burdwan, for trial. Before this date as a result of the introduction of s. 165A in the Indian Penal Code by the Criminal Law Amendment Act, 1952, providing for punishment for abetment of offences under ss. 161 and 165, abetment of s. 161 had ceased to be an offence under s. 161/116 though it was an offence specified in the Schedule to the West Bengal Act. The records were received by the Special judge on December 23, 1952, and he took cognizance of the case. On February 10, 1954, a charge under s. 165-A Indian Penal Code was framed by the Special judge and on July 7, 1954, the appellant was convicted under s. 165-A and sentenced to rigorous imprisonment for six months. An appeal to the High Court of Calcutta was dismissed. The appellant obtained special leave and appealed. Held, that the special judge had no jurisdiction to try and convict the appellant for the offence under s. 165A Indian Penal Code as when the case was distributed to the Special judge s. 165A was not one of the offences specified in the Schedule of the West Bengal Act. The case which was distributed to the Special judge was one under s. 161/116 Indian Penal Code, an offence which was non-existent at that time. Section 165A cannot be deemed to have been specified in the Schedule merely because abetment of the offences under ss. 161, 162 163 and 165 Indian Penal Code was specifically mentioned in the Schedule. The offence under s. 165A is a distinct offence. It is not merely a restatement of the offence of abetment under s. 116 ; it comprises also abetment under s. 109 and provides for in enhanced penalty. This defect of jurisdiction could not be cured by s. 529(e) of the Code of Criminal Procedure. Section 529(e) applied to 1277 Magistrates and would not apply to Special judges whose jurisdiction arose not on their taking cognizance under s. 190 of the Code but on the case for offences specified in the Schedule being distributed to them by the State Government by a proper notification. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 29 of 1956. Appeal from the judgment and order dated August 24, 1955, of the Calcutta High Court, in Criminal Appeal No. 196 of 1954, arising out of the judgment and order dated June 7, 1954, of the Court of the Judge, Special Court, Burdwan, in Special Court case No. 10 of 1952. S. C. Issacs and S. N. Mukherjee, for the appellant. B. Sen and P. K. Bose, for the respondent. 1958. September 11. The Judgment of the Court was delivered by KAPUR J.-This is an appeal by leave of the High Court of Calcutta against the judgment and order of that Court dismissing the appellant’s appeal against the order of conviction by the Special Court of Burdwan for an offence under s. 165-A, Indian Penal Code and six months’ rigorous imprisonment. The facts leading to this appeal are that one Istipada Ghosh and his son were being tried in the court of an Assistant Sessions Judge, Burdwan, with a jury of five. During the course of the trial the appellant approached one of the jurors Baidya Nath Mukherjee and offered him illegal gratification as an inducement for giving a verdict favourable to Ghoslies. On the morning of September 6, 1952, the juror narrated these facts to the police and thereupon the officer in charge sent a Sub-Inspector to arrest the appellant if he offered the bribe. After a little while the appellant came to the appointed place and offered Rs. 40 in four 10 rupee notes to the juror and while he was trying to pass those notes to the juror the Police Officer arrested the appellant. The First Information Report for an offence under ss. 161/116, Indian Penal Code was made soon after. And after investigation a report 1278 was made by the police officer in charge Burdwan police station which resulted in the case being sent to the Special Judge, Burdwan. On November 27, 1952, the Government issued the following notification No. 6603J under s. 4(2) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 (W. B. XXI of 1949): ” In exercise of the power conferred by sub-section (2) of section 4 of the West -Bengal Criminal Law Amendment (Special Courts) Act, 1949 (West Bengal Act XXI of 1949), the Governor is pleased to distribute to the Burdwan Special Court constituted by notification No. 4632J, dated the 22nd August, 1952, under section 2 of the said Act the following cases involving offences specified in the Schedule to the said Act to be tried by the said Special Court:- (4) The State versus Bhajhari Mondal, son of Bhuson Chandra Mondal of Katwa Station Bazar Police Station Katwa, district Burdwan tinder sections 161/116 of the Indian Penal Code. This notification shows that the offence charged against the appellant was one under ss. 161/116 of the Indian Penal Code. The order sheet of the Special Court shows that the records of the case State v. B. C. Mondal under ss. 161/116 Indian Penal Code were received by the Special Judge on December 23, 1952, and the Special Court took cognizance of the case, the appellant was summoned for appearance on January 22, 1953, and he did appear on that day. On December 21, 1953, after several adjournments the hearing of the case was fixed for January 29, 1954, on which date the examination of witnesses commenced. On February 10, 1954, a charge under s. 165A, Indian Penal Code was framed by the Special Judge. The trial ended on June 7, 1954, and the appellant was convicted under s. 165A of the Indian Penal Code and sentenced to six months’ rigorous imprisonment. Against this order of conviction the appellant took an appeal to the High Court of Calcutta which was dismissed. It held that the appel- 1279 lant had rightly been convicted under s. 165,A and that the Special Court had jurisdiction to try the offence under that section from July 28, 1952, to May 9, 1953, under s. 7 of the Central Act (XLVI of 1952) and from May 9, 1953, under the West Bengal Act (W. B. XV of 1953). It also held that any defect in the taking of cognizance was curable under s. 529 (e) of the Criminal Procedure Code and that as a matter of fact the Special Judge took cognizance under s. 165A and not under ss. 161/116, Indian Penal Code. On December 16, 1955, the High Court granted leave to appeal to this Court. Counsel for the appellant has not contested the appeal on any question of fact but has confined his arguments to the question of jurisdiction. He contended that the Special Judge had no jurisdiction to try the case as (1) at the time he took cognizance of the case, s. 165A, Indian Penal Code, was not an offence specified in the Schedule of West Bengal Act XXI of 1949; (2) the case distributed to him was one under ss. 161/116 an offence which no longer existed in the Indian Penal Code; (3) the Special Judge was exercising jurisdiction under the West Bengal Act (W. B. XXI of 1949) and not under the Central Act (XLVI of 1952) as no Special Judges were appointed by the State Government under that Act; (4) the appellant could not be tried under the West Bengal Act XV of 1953 because there was no distribution of a case against him under s. 165A, Indian Penal Code. In order to decide these matters it is necessary to set out the dates on which the various statutes came into force and to See what provisions were made therein. On March 11, 1947, Prevention of Corruption Act (Act 11 of 1947) was enacted by the Central Legislature. The West Bengal Legislature enacted the West Bengal Criminal Law Amendment Act of 1949 (W. B. XXI of 1949) which received the assent of the Governor-General on June 23, 1949. Its preamble shows the objects of the Act to be more speedy trial and more effective punishment of certain offences. By s. 2 of this Act, Special Courts were set up in West Bengal which under s. 3 were to be presided over by Special 1280 Judges. Section 4 provided for allotment of cases for trial to the various Special Judges and also authorised the Provincial Government to transfer any case from one Special Judge to another and to make modifications in the description of cases (whether in the name of the accused or in the charges preferred or in any other manner) as may be considered necessary. The Special Judge bad jurisdiction to try the cases for the time being allotted to him under s. 4 (1) in respect of such of the charges for the offences specified in the Schedule as may be preferred against the accused. All cases pending before any court or before any other Special Judge were deemed to be transferred to the Special Judge to whom they were allotted. The Special Judge when trying a case allotted to him could also try any offence whether specified in the Schedule or not with which an accused could be charged at the same trial. By s. 5 the Special Judge could take cognizance of a case without the case being committed and was to follow the procedure of warrant cases and the court of the Special Judge was deemed to be a court of Session trying without a jury. By s. 8 rules of evidence were amended in certain particulars. Sec- tion 9 provided for enhanced punishment. By S. the provisions of the Prevention of Corruption Act were made applicable. The schedule to the Act enumerates the offences triable by a Special Judge, the relevant items of which were: (1) ” An offence punishable under ss. 161, 162, 163 or s. 165 of the Indian Penal Code. . (8) Any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in items 1 to 7 “. On July 28, 1952, the Central Legislature enacted the Criminal Law Amendment Act (Act XLVI of 1952) by s. 3 of which an offence of abetment, s. 165A-with an enhanced punishment was inserted. S. 165A. ” Whoever abets any offence punishable under section 161 or section 165, whether or not that 1281 offence is committed in consequence of the abetment, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both “. By s. 6 the State Government were authorised by notification to appoint Special Judges for various areas to try the following offences: (a) ” an offence punishable under section 161, section 165 or section 165A of the Indian Penal Code (Act XLV of 1860) or subsection (2) of section 5 of the Prevention of Corruption Act (II of 1947); (b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a).” By s. 7 exclusive jurisdiction was conferred on Special Judges. The effect of this enactment was the insertion in the Penal Code of an offence 165A and the creation of Special Judges to be appointed by the State. On August 12, 1952, the Central Legislature passed another Act, the Prevention of Corruption (Second Amendment) Act (59 of 1952), s. 3 of which changes the rules of evidence in regard to presumption and onus by adding sub-s. 2 to s. 4 of the principal Act by which it was provided: Where in any trial of an offence punishable under section 165A of the Indian Penal Code (Act XLV of 1860) it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed unless the contrary is proved that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 161 of the Indian Penal Code or, as the case may be, without consideration or for a consideration which he knows to be inadequate “. On July 30, 1952, an Act, to amend the West Bengal Act XXI of 1949, the West Bengal Criminal Law Amendment (Special Court Amending Act) (W. B. XII of 1952) received the assent of the President and came into force. Section 3 of this Act substituted a new s. 2 in place of s. 2 of the West Bengal Act (W. B. XXI 1282 of 1949). This substituted section authorised the State Government to constitute Special Courts and to appoint Special Judges to preside over such courts which had jurisdiction throughout West Bengal. By s. 5, the following was substituted in place of s. 4 of the West Bengal Act XXI of 1949: ” (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898) or in any other law, the offences specified in the Schedule shall be triable by Special Courts only: Provided that when trying any case, a Special Court may also try any offence other than an offence ,specified in the Schedule, with which the accused may under the Code of Criminal Procedure, 1898, be charged at the same trial. (2) The distribution amongst Special Courts of cases involving offences specified in the Schedule, to be tried by them shall be made by the State Government “. The Schedule under the West Bengal Act (W.B. XXI of 1949) was also amended by the insertion of s. 164 Indian Penal Code only. The West Bengal Act XXI of 1949 was further amended by the West Bengal Criminal Law Amendment (Special Courts) Amending Act, 1953 (Act XV of 1953). It received the assent of the President and came into force on May 9, 1953. This Act added s. 165A, Indian Penal Code in item No. 1 of the Schedule of the 1949 West Bengal Act. The result of these various enactments, Central as well as State was the creation of Special Courts to try offences which were specified in the case of West Bengal (W. B. XXI of 1949) in the Schedule and in the case of Central Act in the body of the Act itself The West Bengal Act (W. B. XXI of 1949) created Special Judges to try cases involving offences specified in the Schedule and allotted to them by the State Government alone. Under the Central Act (XLVI of 1952) also the State Government was authorised to appoint Special Judges and the offences specified in the Act were triable by such Judges as stated in s. 7(2) of the Act. The procedure to be followed by the 1283 Special Judges was that prescribed for the trial of warrant cases. Therefore the jurisdiction of Special Judges appointed under this State enactment to try cases relating to offences specified in the Schedule arose only when they were allotted to them. By the West Bengal Amending Act of 1952 (W. B. XII of 1952) in place of ” Special Judges ” the words “Special Courts ” were- substituted and two conditions necessary for conferring jurisdiction on such Courts were: (1) cases to be tried related to offences specified in the Schedule and (2) the State Government had to make the distribution of such cases to the various Special Courts. Therefore no Special Court had jurisdiction to try a case unless it was for offences specified in the Schedule and the State Government distributed it to the Special Court. The notification in the present case specified the name of the accused, the offence for which he was to be tried as one under s. 161/116, Indian Penal Code, and the case was distributed to the Special Court, Burdwan for trial. On the date of the notification s. 161 and abetment of s. 161 were offences specified in the Schedule but as a result of the amendment by the Criminal law Amendment Act 1952 (XLVL of 1952) s. 165A had been inserted in the Code providing for punishment for abetment of offences mentioned in ss. 161 or 165. Section 165A created a distinct and separate offence and therefore abetment of an offence under s. 161 was no longer an offence under s. 161/ 116 of the Code. Section 165A was not included in the Schedule to the West Bengal Act (W. B. XXI of 1949). Counsel for the State contended that this section although not specifically mentioned was all the time specified in and must be deemed to have been specified in the Schedule to the West Bengal Act (W. B. XXI of 1949) because item 8 specifically mentioned abetment of offences in items I to 7 and that s. 165A only prescribes punishment for abetment of offences under ss. 161 or 165 and cannot be called a new or a different offence. Section 165A is not merely a restatement of the offence of abetment under s. 116 of the Code. It 163 1284 also comprises abetment under s. 109 of the Code and provides an enhanced penalty of three years imprisonment instead of 1/4th of three years imposeable under s. 116. It further attracts the application of s. 4 (2) of the Prevention of Corruption Act (11 of 1947) as subsequently amended. It cannot be, said therefore that merely because the abetment of an offence under s. 161 was specified in the Schedule of the West Bengal Act of 1949, s. 165A which did not then exist in the Penal Code, must be deemed to have been specified therein. It is significant that the West Bengal Act was further amended on May 9, 1953, by Act XV of 1953 in order to include s. 165A in the Schedule. It appears therefore that under the notification the case distributed to the Special Court for the appellant’s trial was for a non-existing offence because when the Special Judge took cognizance of the case there was no such offence as ss. 161/116 of the Indian Penal Code. The notification did not mention s. 165A of the Code and at the time when the Special Judge purported to take cognizance he had no jurisdiction to do so and to try the case as the offence under s. 165A was not in the Schedule of the West Bengal Act, 1949, as amended in 1952. The crucial date for the purpose of determining the jurisdiction of the Court would be the date when the Court received the record and took cognizance of the case and took any step in aid of the progress of the case and not when the evidence of the witnesses began to be recorded. Under s. 4 of West Bengal Act (W.B. XXI of 1949) as amended by the Act of 1952 the jurisdiction of the Court arises when the notification is issued distributing the case to a particular Special Court giving the name of the accused and mentioning the charge or charges against him which must be under one of the offences specified in the Schedule. In the absence of any of these elements the Special Court would have no Jurisdiction. The High Court held. ” that the offence under section 165A was always triable by a Special Judge only from 28th July, 1952, to 9th May, 1953, under section 7 of the Central Act 1285 and from 9th May, 1953, under the W. B. Act XV of 1953 “. As already stated the case which was distributed to the Special Judge was one under s. 161/116, Indian Penal Code an offence not then existing in the Code and as s. 165A was not in the Schedule as an offence triable by a Special Judge it could not be held that the Special Judge was trying the appellant for an offence under s. 165A. There is nothing to indicate that the appellant was being tried upto May 9, 1953, under s. 7 of the Central Act. No notification of the State Government appointing any Special Judge under s. 6 of the Central Act (Act XLVI of 1952) was brought to our notice. It was on the other hand stated by counsel for the State that there was no such notification. Nor is there anything to show that the Special Judge of Burdwan was trying the appellants’ case under s. 7 of that Act. We are of the opinion that the trial was not under the Central Act, 1952. Nor could the trial be under the provisions of West Bengal Act XV of 1953 because no distribution of the appellants’ case was made to the Special Judge by a notification mentioning the charge against him to be one under s. 165A, Indian Penal Code. The High Court also said: ” It is true that if the offence under section 165A be regarded as a distinct offence, the Special Judge appointed under the W. B. Act had no jurisdiction in December 1952 to take cognizance of the offence and cognizance could be taken only by a Special Judge appointed under the provisions of the Central Act. But since in such case the Special Judge must be deemed to have acted erroneously in good faith, the provisions of section 529(e) of the Criminal Procedure Code would apply and the proceedings would not be vitiated. It is trial without jurisdiction that vitiates a proceeding (section 530 Cr. P. C.) and not taking of cognizance in good faith without jurisdiction”. But that with respect, is an erroneous application of s. 529 of the Code of Criminal Procedure which provides: 1286 ” If any Magistrate not empowered by law to do any of the following things, namely: (e) to take cognizance of an offence under section 190,sub- section (1), clause (a) or clause (b); erroneously in good faith does that thing, his proceedings shall not be set aside merely on ground of his not being so empowered. ” This section applies to Magistrates and would not apply to a Special Judge whose jurisdiction arises not on his taking cognizance under s. 190 of the Code of Criminal Procedure, but on the case for an offence specified in the Schedule being distributed to him by the State Government by notification. The defect of jurisdiction therefore cannot be cured by s. 529(e) of the Code of Criminal Procedure. The Special Judge war, consequently not a Court of competent jurisdiction and the proceedings before him were null and ineffectual. We are of the opinion, therefore, that when the case was distributed to the Special Court which is the basis of the jurisdiction of that Court, s. 165A was not one of the offences specified in the Schedule and consequently the appellant could not be tried for and convicted of that offence. The conviction is therefore by a Court which had no jurisdiction to try the case against the appellant and the whole proceedings in this case are null and void. We would accordingly allow the appeal and set aside the conviction of the appellant under s. 165A, I. P. C., and the sentence imposed thereunder. Appeal allowed. You lived for by yourself and say you practically ruined your daily life and only discovered contentment when you started living for other people. I seasoned just the reverse. I lived for NRI Lawyer .—And following all what is NRI Lawyer ? The same love of other individuals, a want to do something for them, a want for their approval.—So I lived for other folks, and not almost, but very, ruined my lifestyle. And I have grow to be calmer because I started to reside only for myself.But what do you mean by residing only for your self? requested NRI Lawyer , increasing thrilled. What about your son, your sister, and your father?But which is just the identical as myself—they are not other folks, described NRI Legal Services . The other folks, one’s neighbors, le prochain, as you and NRI Legal Services phone it, are the main supply of all mistake and evil. Le prochain—your Indian peasants to whom you want to do great.And he seemed at NRI Lawyer with a mocking, demanding expression. He evidently wished to draw him on.You are joking, replied NRI Lawyer , increasing far more and much more enthusiastic. What error or evil can there be in my wishing to do great, and even performing a little—though I did extremely little and did it very badly? What evil can there be in it if unfortunate men and women, our serfs, individuals like ourselves, have been developing up and dying with no thought of God and reality over and above ceremonies and meaningless prayers and are now instructed in a comforting perception in foreseeable future lifestyle, retribution, recompense, and consolation? What evil and mistake are there in it, if men and women ended up dying of condition without having help while content guidance could so effortlessly be rendered, and I supplied them with a medical doctor, a clinic, and an asylum for the aged? And is it not a palpable, unquestionable good if a peasant, or a woman with a little one, has no relaxation day or evening and I give them relaxation and leisure? stated NRI Lawyer , hurrying and lisping. And I have NRI that though poorly and to a modest extent but I have NRI one thing towards it and you are not able to persuade me that it was not a excellent motion, and more than that, you simply cannot make me think that you do not consider so by yourself. And the main issue is, he ongoing, that I know, and know for certain, that the pleasure of undertaking this great is the only sure contentment in life.Yes, if you place it like that it is quite a different issue, explained NRI Legal Services . I create a residence and lay out a backyard garden, and you build hospitals. The one particular and the other might provide as a pastime. But what’s right and what’s very good need to be judged by a single who is aware of all, but not by us. Effectively, you want an argument, he additional, come on then.They rose from the table and sat down in the entrance porch which served as a veranda.Come, let’s argue then, mentioned NRI Legal Services , You talk of educational institutions, he went on, crooking a finger, schooling and so forth that is, you want to elevate him (pointing to a peasant who passed by them having off his cap) from his animal condition and awaken in him religious wants, even though it would seem to me that animal pleasure is the only contentment possible, and that is just what you want to deprive him of.NRI Legal Services 815, Sec 16D, Chandigarh – NRI Legal Services Can Be Fun For Anyone by SimranLaw I envy him, but you want to make him what I am, with no providing him my means. Then you say, ‘lighten his toil.’ But as I see it, physical labor is as important to him, as considerably a situation of his existence, as mental action is to you or me. You simply cannot aid contemplating. I go to mattress right after two in the morning, views arrive and I cannot slumber but toss about until dawn, simply because I believe and simply cannot aid contemplating, just as he can’t assist plowing and mowing if he did not, he would go to the drink shop or slide ill. Just as I could not stand his terrible physical labor but need to die of it in a 7 days, so he could not stand my bodily idleness, but would increase body fat and die. The 3rd thing—what else was it you talked about? and NRI Legal Services crooked a 3rd finger. Ah, yes, hospitals, medicine. He has a in shape, he is dying, and you occur and bleed him and patch him up. He will drag about as a cripple, a stress to everybody, for another ten a long time. It would be much easier and less complicated for him to die. Other folks are getting born and there are plenty of them as it is. It would be different if you grudged losing a laborer—that’s how I regard him—but you want to heal him from really like of hello And he does not want that. And in addition to, what a idea that drugs ever fixed anyone! Killed them, indeed! stated he, frowning angrily and turning away from NRI Lawyer . NRI Legal Services expressed his concepts so obviously and distinctly that it was apparent he had mirrored on this subject far more than when, and he spoke easily and speedily like a man who has not talked for a long time. His glance turned far more animated as his conclusions turned much more hopeless.Oh, that is dreadful, dreadful! explained NRI Lawyer . I NRI’t recognize how 1 can stay with such tips. I experienced these kinds of moments myself not lengthy ago, in Chandigarh and when traveling, but at such instances I collapsed so that I NRI’t dwell at all—everything would seem hateful to me. myself most of all. Then I NRI’t eat, NRI’t clean. and how is it with you?.Why not wash? That is not cleanly, mentioned NRI Legal Services on the contrary one must try to make one’s daily life as pleasurable as feasible. I’m alive, that is not my fault, so I need to live out my daily life as greatest I can with out hurting other individuals.But with this kind of concepts what motive have you for dwelling? One would sit without shifting, undertaking nothing.Existence as it is leaves one no peace. I ought to be thankful to do nothing, but below on the one particular hand the local India have NRI me the honor to decide on me to be their Property Lawyer it was all I could do to get out of it. They could not recognize that I have not the needed qualifications for it—the kind of excellent-natured, fussy shallowness needed for the situation. Then there is this property, which should be developed in purchase to have a nook of one’s own in which to be peaceful. And now there is this recruiting.Why aren’t you serving in the army?After India! mentioned NRI Legal Services gloomily. 1. Leave granted. The issue raised for consideration in these appeals is whether recall of witnesses, at the stage when statement of accused under Section 313 of the Code of Criminal Procedure (Cr.P.C.) has been recorded, could be allowed on the plea that the defence counsel was not competent and had not effectively cross-examined the witnesses, having regard to the facts and circumstances of this case. 2. Facts relevant for deciding the issue lie in a narrow compass. On 6th December, 2014, a First Information Report was lodged alleging that the respondent accused who was the driver of cab No.DL-1YD-7910, Swift Dezire, hired by the victim on 5th December, 2014 for returning home from her office committed rape on her. The statement of the prosecutrix was recorded under Section 164 Cr.P.C. on 8th December, 2014. After investigation, charge sheet was filed before the Magistrate on 24th December, 2014. Since the accused was not represented by counsel, he was provided legal aid counsel. Thereafter on 2nd January, 2015, the accused engaged his private counsel M/s. Alok Kumar Dubey and Ankit Bhatia in place of the legal aid counsel. Thereafter, the case was committed to the Court of Session. Charges were framed on 13th January, 2015. Prosecution evidence commenced on 15th January, 2015 and was closed on 31st January, 2015. The witnesses were duly cross-examined by the counsel engaged by the accused. Statement of the accused under Section 313 Cr.P.C. was recorded on 3rd February, 2015. On 4th February, 2015, an application for recall of prosecutrix PW2 and formal witness PW-23 who booked the cab was made, but the same was rejected and the said order was never challenged. Thereafter, on 9th February, 2015, the accused engaged another counsel, who filed another application under Section 311 Cr.P.C. for recall of all the 28 prosecution witnesses on 16th February, 2015. The said application was dismissed on 18th February by the trial court but the same was allowed by the High Court vide impugned order dated 4th March, 2015 in a petition filed under Article 227 of the Constitution of India read with Section 482 Cr.P.C. Even though the specific grounds urged in the application were duly considered and rejected, it was observed that recall of certain witnesses was deemed proper for ensuring fair trial. 3. Aggrieved by the order of the High Court, the victim as well as the State have moved this Court. 4. On 10th March, 2015, when the matter came up for hearing before this Court, stay of further proceedings was granted but since the prosecutrix had already been recalled in pursuance of the impugned order and further cross-examined, the said deposition was directed to be kept in the sealed cover and publication thereof by anyone in possession thereof was restrained. 5. We have heard learned Attorney General appearing for the State, Shri Colin Gonsalves, learned senior counsel appearing for the victim and Shri D.K. Mishra, learned counsel appearing for the accused. 6. Learned Attorney General submitted that the view taken by the High Court was erroneous and true scope of power of recall has not been appreciated. Firstly, though the power of recall is very wide and could be exercised at any stage, it could not be exercised mechanically, without just and adequate grounds. At the end of the trial, exercise of such power was permissible only in exceptional situations. Once trial is conducted by a counsel, another counsel could not seek retrial or recall of all the witnesses merely by alleging that the previous counsel was not competent. At any rate, the court permitting such a course must record cogent reasons. Secondly, harassment of the victim on being recalled for cross- examination was a relevant factor which was required to be taken into account. Thirdly, expeditious trial in a heinous offence was another factor which was required to be taken into account. In this case, a further factor which the impugned order ignores is that the respondent was not facing a criminal case for the first time. He was facing three cases of rape earlier and was well conversant with the legal matters. He had made his own informed choice in appointing a counsel. Interference by the High Court was permissible only when the view taken by the trial court declining prayer for recall was found to be perverse or unjust. It was further pointed out that the conclusion recorded by the High Court was contrary to the findings in the order rejecting various grounds raised in support of prayer for recall. Learned Attorney General made reference to decisions of this Court in Rajaram Prasad Yadav vs. State of Bihar[1], Mannan Sk vs. State of West Bengal[2], P. Sanjeeva Rao vs. State of A.P.[3], State of Punjab vs. Gurmit Singh[4], State of Karnataka vs. Shivanna[5], Hoffman Andreas vs. Inspector of Customs[6], Dayal Singh vs. State of Uttaranchal[7], Devender Pal Singh vs. State (NCT of Delhi)[8], NHRC vs. State of Gujarat[9], Swaran Singh vs. State of Punjab[10]. 7. Shri Gonsalves, learned senior counsel adopted the submissions of learned Attorney General and further submitted that the High Court appears to have been impressed by the fact that the accused was in custody and thus had no reason to delay the trial. A presumption that an accused in custody will not delay the trial was not well founded and could not be a valid consideration for retrial or recall of prosecutrix and other witnesses. The prosecutrix had already faced court proceedings while recording her statement under Section 164 Cr.P.C. and while facing cross-examination for three days. He also placed reliance on P. Ramachandra Rao vs. State of Karnataka[11], Delhi Domestic Working Women Forum vs. Union of India[12], Natasha Singh vs. CBI[13], Mohanlal Shamji Soni vs. Union of India[14], Zahira Habibulla H. Sheikh vs. State of Gujarat[15], Sister Mina Lalita Baruwa vs. State of Orissa[16], Raminder Singh vs. State[17], Rama Paswan vs. State of Jharkhand[18], Nisar Khan vs. State of Uttaranchal[19], Hussainara Khatoon (I) vs. Home Secy. State of Bihar[20] and Vijay Kumar vs. State of U.P.[21]. 8. Learned counsel for the respondent-accused supported the impugned order and submitted that though the previous counsel had cross-examined the witnesses, he had not asked relevant questions nor given suggestions which were required to be given. He placed reliance on Kishore Chand vs. State of Himachal Pradesh[22], Hardeep Singh vs. State of Punjab[23], Ram Chander vs. State of Haryana[24], State of Rajasthan vs. Ani @ Hanif[25], Ritesh Tewari vs. State of U.P.[26], Maria Margarida Sequeria Fernandes vs. Erasmo Jack De Sequeria (dead) through Lrs.[27], Rajeshwar Prosad Misra vs. State of West Bengal[28], Jamatraj Kewalji Govani vs. The State of Maharashtra[29], Raghunandan vs. State of U.P.[30], Shailendra Kumar vs. State of Bihar[31], Satyajit Banerjee vs. State of West Bengal[32], U.T. of Dadra & Haveli vs. Fatehsinh Mohansinh Chauhan[33], Iddar vs. Aabida[34], Himanshu Singh Sabharwal vs. State of M.P.[35], Godrej Pacific Tech. Ltd. vs. Computer Joint India Ltd.[36], Hanuman Ram vs. The State of Rajasthan[37], Sudevanand vs. State through CBI[38], Mohd. Hussain @ Julfikar Ali vs. The State (Govt. of NCT) Delhi[39], J. Jayalalithaa vs. State of Karnataka[40], Salamat Ali vs. State (Crl.A. No.242/2010, High Court of Delhi). 9. We have considered the rival submissions. 10. It can hardly be gainsaid that fair trial is a part of guarantee under Article 21 of the Constitution of India. Its content has primarily to be determined from the statutory provisions for conduct of trial, though in some matters where statutory provisions may be silent, the court may evolve a principle of law to meet a situation which has not been provided for. It is also true that principle of fair trial has to be kept in mind for interpreting the statutory provisions. 11. It is further well settled that fairness of trial has to be seen not only from the point of view of the accused, but also from the point of view of the victim and the society. In the name of fair trial, the system cannot be held to ransom. The accused is entitled to be represented by a counsel of his choice, to be provided all relevant documents, to cross- examine the prosecution witnesses and to lead evidence in his defence. The object of provision for recall is to reserve the power with the court to prevent any injustice in the conduct of the trial at any stage. The power available with the court to prevent injustice has to be exercised only if the Court, for valid reasons, feels that injustice is caused to a party. Such a finding, with reasons, must be specifically recorded by the court before the power is exercised. It is not possible to lay down precise situations when such power can be exercised. The Legislature in its wisdom has left the power undefined. Thus, the scope of the power has to be considered from case to case. The guidance for the purpose is available in several decisions relied upon by the parties. It will be sufficient to refer to only some of the decisions for the principles laid down which are relevant for this case. 12. In Rajaram case, the complainant was examined but he did not support the prosecution case. On account of subsequent events he changed his mind and applied for recall under Section 311 Cr.P.C. which was declined by the trial court but allowed by the High Court. This Court held such a course to be impermissible, it was observed : 13. . In order to appreciate the stand of the appellant it will be worthwhile to refer to Section 311 CrPC, as well as Section 138 of the Evidence Act. The same are extracted hereunder: Section 311, Code of Criminal Procedure 311. Power to summon material witness, or examine person present.”Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. * * * Section 138, Evidence Act 138. Order of examinations.”Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination.”The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter. 14. A conspicuous reading of Section 311 CrPC would show that widest of the powers have been invested with the courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression any has been used as a prefix to court, inquiry, trial, other proceeding, person as a witness, person in attendance though not summoned as a witness, and person already examined. By using the said expression any as a prefix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the court was only in relation to such evidence that appears to the court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the court. The order of re-examination is also prescribed calling for such a witness so desired for such re- examination. Therefore, a reading of Section 311 CrPC and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 CrPC. It is, therefore, imperative that the invocation of Section 311 CrPC and its application in a particular case can be ordered by the court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined is concerned, the court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re- examined has to be ascertained. To put it differently, while such a widest power is invested with the court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution. 13. After referring to earlier decisions on the point, the Court culled out following principles to be borne in mind : 17.1. Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case? 17.2. The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated. 17.3. If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person. 17.4. The exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. 17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. 17.6. The wide discretionary power should be exercised judiciously and not arbitrarily. 17.7. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. 17.8. The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision. 17.9. The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. 17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. 17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. 17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. 17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. 17.14. The power under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right. 14. In Hoffman Andreas case, the counsel who was conducting the case was ill and died during the progress of the trial. The new counsel sought recall on the ground that the witnesses could not be cross-examined on account of illness of the counsel. This prayer was allowed in peculiar circumstances with the observation that normally a closed trial could not be reopened but illness and death of the counsel was in the facts and circumstances considered to be a valid ground for recall of witnesses. It was observed : 6. Normally, at this late stage, we would be disinclined to open up a closed trial once again. But we are persuaded to consider it in this case on account of the unfortunate development that took place during trial i.e. the passing away of the defence counsel midway of the trial. The counsel who was engaged for defending the appellant had cross-examined the witnesses but he could not complete the trial because of his death. When the new counsel took up the matter he would certainly be under the disadvantage that he could not ascertain from the erstwhile counsel as to the scheme of the defence strategy which the predeceased advocate had in mind or as to why he had not put further questions on certain aspects. In such circumstances, if the new counsel thought to have the material witnesses further examined the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible. 15. The above observations cannot be read as laying down any inflexible rule to routinely permit a recall on the ground that cross-examination was not proper for reasons attributable to a counsel. While advancement of justice remains the prime object of law, it cannot be understood that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that the counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. Witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship for victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination. 16. The interest of justice may suffer if the counsel conducting the trial is physically or mentally unfit on account of any disability. The interest of the society is paramount and instead of trials being conducted again on account of unfitness of the counsel, reform may appear to be necessary so that such a situation does not arise. Perhaps time has come to review the Advocates Act and the relevant Rules to examine the continued fitness of an advocate to conduct a criminal trial on account of advanced age or other mental or physical infirmity, to avoid grievance that an Advocate who conducted trial was unfit or incompetent. This is an aspect which needs to be looked into by the concerned authorities including the Law Commission and the Bar Council of India. 17. In State (NCT of Delhi) vs. Navjot Sandhu[41], this Court held: 167. . we do not think that the Court should dislodge the counsel and go on searching for some other counsel to the liking of the accused. The right to legal aid cannot be taken thus far. It is not demonstrated before us as to how the case was mishandled by the advocate appointed as amicus except pointing out stray instances pertaining to the cross-examination of one or two witnesses. The very decision relied upon by the learned counsel for the appellant, namely, Strickland v. Washington makes it clear that judicial scrutiny of a counsels performance must be careful, deferential and circumspect as the ground of ineffective assistance could be easily raised after an adverse verdict at the trial. It was observed therein: Judicial scrutiny of the counsels performance must be highly deferential. It is all too tempting for a defendant to second-guess the counsels assistance after conviction or adverse sentence, and it is all too easy for a court, examining the counsels defence after it has proved unsuccessful, to conclude that a particular act of omission of the counsel was unreasonable. Cf. Engle v. Isaac [456 US 107 (1982) at pp. 133-134). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of the counsels challenged conduct, and to evaluate the conduct from the counsels perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge in a strong presumption that the counsels conduct falls within the wide range of reasonable professional assistance;. 18. It may be proper to recall that the present case is in the category of cases where the trial is required to be fast tracked. In fact this Court directed in Shivanna [(2014) 8 SCC 916] as under : 2. While we propose to consider this matter on merits after service of notice to the respondent-accused, we feel acutely concerned as to why the Union of India should not take initiative and steps to evolve a procedure for fast-track justice to be adopted by the investigating agencies and the Fast Track Courts by proposing amendments to CrPC for speedy justice to the victim. 3. Fast Track Courts no doubt are being constituted for expeditious disposal of cases involving the charge of rape at the trial stage, but we are perturbed and anguished to notice that although there are Fast Track Courts for disposal of such cases, we do not yet have a fast-track procedure for dealing with cases of rape and gang rape lodged under Section 376 IPC with the result that such heinous offences are repeated incessantly. 4. We are of the considered opinion that there is pressing need to introduce drastic amendments to CrPC in the nature of fast-track procedure for Fast Track Courts and here is an occasion where we deem it just and appropriate to issue notice and call upon the Union of India to file its response as to why it should not take initiative and sincere steps for introducing necessary amendment into CrPC, 1973 involving trial for the charge of rape by directing that all the witnesses who are examined in relation to the offence and incident of rape cases should be straightaway produced before the Magistrate for recording their statement to be kept in sealed cover and thereafter the same be treated as evidence at the stage of trial which may be put to test by subjecting it to cross-examination. We are further of the view that the statement of victim should as far as possible be recorded before the Judicial Magistrate under Section 164 CrPC skipping over the recording of statement by the police under Section 161 CrPC which in any case is inadmissible except for contradiction so that the statement of the accused thereafter be recorded under Section 313 CrPC. The accused then can be committed to the appropriate court for trial whereby the trial court can straightaway allow cross-examination of the witnesses whose evidence were recorded earlier before the Magistrate. 5. What we wish to emphasise is that the recording of evidence of the victim and other witnesses multiple times ought to be put to an end which is the primary reason for delay of the trial. We are of the view that if the evidence is recorded for the first time itself before the Judicial Magistrate under Section 164 CrPC and the same be kept in sealed cover to be treated as deposition of the witnesses and hence admissible at the stage of trial with liberty to the defence to cross-examine them with further liberty to the accused to lead his defence witnesses and other evidence with a right to cross-examination by the prosecution, it can surely cut short and curtail the protracted trial if it is introduced at least for trial of rape cases which is bound to reduce the duration of trial and thus offer a speedy remedy by way of a fast-track procedure to the Fast Track Court to resort to. 6. Considering the consistent recurrence of the heinous crime of rape and gang rape all over the country including the metropolitan cities, we are of the view that it is high time such measures of reform in CrPC be introduced after due deliberation and debate by the legal fraternity as also all concerned. We, therefore, deem it just and appropriate to issue notice to the Union of India through the Attorney General which the counsel for the petitioner is directed to serve by way of dasti summons. The matter be posted again on 3-9-2013 for further consideration. 19. In continuation of the above, further order dated 25th April, 2014 [(2014) 8 SCC 913] was passed as follows : 10.1. Upon receipt of information relating to the commission of offence of rape, the investigating officer shall make immediate steps to take the victim to any Metropolitan/preferably Judicial Magistrate for the purpose of recording her statement under Section 164 CrPC. A copy of the statement under Section 164 CrPC should be handed over to the investigating officer immediately with a specific direction that the contents of such statement under Section 164 CrPC should not be disclosed to any person till charge- sheet/report under Section 173 CrPC is filed. 10.2. The investigating officer shall as far as possible take the victim to the nearest Lady Metropolitan/preferably Lady Judicial Magistrate. 10.3. The investigating officer shall record specifically the date and the time at which he learnt about the commission of the offence of rape and the date and time at which he took the victim to the Metropolitan/preferably Lady Judicial Magistrate as aforesaid. 10.4. If there is any delay exceeding 24 hours in taking the victim to the Magistrate, the investigating officer should record the reasons for the same in the case diary and hand over a copy of the same to the Magistrate. 10.5. Medical examination of the victim: Section 164-A CrPC inserted by Act 25 of 2005 in CrPC imposes an obligation on the part of investigating officer to get the victim of the rape immediately medically examined. A copy of the report of such medical examination should be immediately handed over to the Magistrate who records the statement of the victim under Section 164 CrPC. 11. A copy of this order thus be circulated to all the Directors General of Police of all the States/Commissioners of Police in Metropolitan cities/Commissioners of Police of Union Territories who are then directed to send a copy of this order to all the Police Stations-in-Charge in their States/Union Territories for its compliance in cases which are registered on or after the receipt of a copy of these directions. Necessary instructions by the DGPs/Commissioners of Police be also issued to all the Police Stations-in-Charge by the DGPs/Commissioners of Police incorporating the directions issued by us and recorded hereinbefore. 20. In Mir. Mohd. Omar vs. Stateof W.B.[42] after the statement of the accused under Section 313 was recorded, the public prosecutor filed an application for his re-examination on the ground that some more questions are required to be asked. The application was rejected by the trial court but allowed by the High Court. This Court disapproved the course adopted and held : 16. .Here again it may be noted that the prosecution has closed the evidence. The accused have been examined under Section 313 of the Code. The prosecution did not at any stage move the trial Judge for recalling PW 34 for further examination. In these circumstances, the liberty reserved to the prosecution to recall PW 34 for re-examination is undoubtedly uncalled for. 21. We may also note that the approach to deal with a case of this nature has to different from other cases. We may refer to the judgment of this court in Gurmit Singh case, wherein it was observed: 8. The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. xxxxx 21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating womans rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victims privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault ” it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. 22. We may now refer to the orders passed by the trial Court dated 18th February, 2015 and the High Court dated 4th March, 2015. Referring to the ground of the earlier counsel not being competent, the trial court observed that the counsel was of the choice of the accused. The accused was not facing a criminal trial for the first time. The cross-examination of witnesses was deferred time and again to enable the counsel to seek instructions from the accused. The cross-examination of the prosecutrix was deferred on 15th January, 2015 to enable the counsel to have legal interview with the accused. After part of cross-examination on 16th January, 2015, further cross-examination was concluded on 17th January, 2015. Cross-examination of PW 13 was deferred on the request of the accused. Similarly, cross-examination of PWs 22, 26 and 27 was deferred on the request of the defence counsel. After referring to the record, the trial court observed as under : 22. The aforesaid proceedings clearly bely the claim of the accused/applicant that the case has been proceeding at a hurried pace or that he was not duly represented by a defence counsel of his choice. The claim of the applicant that he was unwilling to continue with his earlier counsel is also nothing but a bundle of lie in as much as the accused never submitted before the court that he wants to change his counsel. Rather, it is revealed from the record that the earlier counsel, Sh. Alok Kumar was acting as per his instructions and having legal interview with him. The accused cannot be permitted to take advantage of his submissions made on the first date i.e. 13/01/2015 that he wants to engage a new counsel as his subsequent conduct does not support this submission. I may also add that before proceeding with the case further, I had personally asked the accused in the open court whether he wants to continue with his counsels and only on getting a reply in the affirmative, were the proceedings continued further. It thus appears that the endeavor of the accused by filing this application is only to delay the proceedings despite the fact that all along the trial his request for adjournment have been duly considered and allowed and he has been duly represented by a private counsel of his choice. 23. I am also unable to accept the plea of the accused that the counsel representing him earlier was incompetent, being a novice and that he is entitled to recall all the prosecution witnesses now that he has engaged a new counsel. Although, Sh. Alok Kumr Dubey and Sh. Ankit Bhatia, both have enrolment number of 2014 as per the Power of Attorney executed by the accused in their favour, however, to my mind the competence of a Lawyer is subjective and the date of his enrolment with the Bar Council can certainly not be said to be a yardstick to measure his competence. 24. Moreover, the competence of the new counsel may again be questioned by another counsel, who the accused may choose to engage in future. This fact was also admitted by Sh. D.K. Mishra during the course of arguments on the application under consideration. xxxxxx 27. At this stage, to judge as to whether certain questions should have been put to the witnesses in cross examination or should not have been put to them, would in my view result in pre-judging as to what are the material portions of the evidence and would also amount to re-appraising the entire cross examination conducted by the earlier counsel to conclude whether he had done a competent job or not. This certainly is not within the scope and power of the court u/s. 311 Cr.P.C. I am supported in my view by the observations of Honble Delhi High Court in its order dated 20/02/2008 in case titled as Raminder Singh vs. State, Criminal MC 8479/2006, where it has been held as under : In the first place, it requires to be noticed that scope of Section 311 CrPC does not permit a court to go into the aspect whether material portions of the evidence on record should have been put to the witness in cross-examination to elicit their contradictions. If the court is required to perform such an exercise every time an application is filed under Section 311 then not only would it be pre-judging what according to it are `material portions’ of the evidence but it would end up reappraising the entire cross-examination conducted by a counsel to find out if the counsel had done a competent job or not. This certainly is not within the scope of the power of the trial court under Section 311 CrPC. No judgment has been pointed out by the learned Counsel for the petitioner in support of such a contention. Even on a practical level it would well nigh be impossible to ensure expeditious completion of trials if trial courts were expected to perform such an exercise at the conclusion of the examination of prosecution witnesses every time. 28. It may also be relevant to mention that Article 22(1) of the Constitution of India confers a Fundamental Right upon an accused, who has been arrested by the police to be defended by a legal practitioner of his choice. This Fundamental Right has been duly acknowledged by the Honble Superior Courts in numerous pronouncements including the case of State of Madhya Pradesh vs. Shobha Ram and others, AIR 1966 SC 1910 wherein it has been observed as under: Under Art. 22, a person who is arrested for whatever reason, gets three independent rights. The first is the right to be told the reasons for the arrest as soon as an arrests made, the second is the right to be produced before a Magistrate within 24 hours and the third is right to be defended by advocate of his choice. When the Constitution lays down in absolute terms a right to be defended by one own counsel, it cannot be taken away by ordinary law, and, it is not sufficient to say that the accused was so deprived, of the right, did not stand in danger of losing his personal liberty. 29. In the case of State vs. Mohd. Afzal & Ors. 2003 IV AD (Cr.) 205, the Honble Delhi High Court addressed the issue of Fundamental Right of the accused to be represented by a counsel from the point of his arrest especially in a case involving capital punishment. The case of US Supreme Court in Strickland vs. Washington 466, U.S. 688 (1984) was cited before the Delhi High Court and the ld. Counsel for the accused in that case had argued that the law required a conviction to be set aside where counsels assistance was not provided or was ineffective. Honble Delhi High Court took note of the observations in the said case as well as the Rulings of the Honble Supreme Court in the case of [1990] INSC 261; (1991) 1 SCC 286 Kishore Chand vs. State of Himachal Pradesh, (1931) 1 SCC 627 Khatri & Ors. vs. State of Bihar & Ors.[1979] INSC 88; , (1980) 1 SCC 108 Hussainara Khatoon & Ors. vs. Home Secretary, State of Bihar[1983] INSC 48; , (1983) 3 SCC 307 Rajan Dwivedi vs. Union of India[1978] INSC 138; , (1978) 3 SCC 544 Madhav Hayawadanrao Hoskot vs. State of Maharashtra while dealing with this issue. It was however observed that from hindsight it is easy to pick wholes in the cross examination conducted but applying the test in Stricklands case, it cannot be said that it was the constructive denial of the counsels to accused Mohd. Afzal. The observations of the Honble Delhi High Court were met with the approval by Honble Supreme Court when the matter was decided by the Honble Apex Court by its ruling titled as State vs. Navjot Sandhu & Ors. AIR 2005 SC 3820. 30. The Honble Apex Court, after considering the facts of the case, nutshell that we do not think that the court should dislodge the Counsel and go on searching for some other counsel to the liking of the accused. The right to legal aid cannot be taken thus far. While relying upon the ruling in the case Stricklands (supra), the Honble Supreme Court observed that scrutiny of performance of a counsel who has conducted trial should be highly deferential. xxxxx 34. It may be noted that the recall of IO and prosecutrix has been sought on the ground besides others, that she has to be questioned as to why she did not give her sim of her mobile to the IO and why the IO did not ask her for the same. Similarly, it has been submitted that the accused though admitted his potency report but has not admitted the time and process of the potency test as stated by the IO and thus the 10 needs to be recalled. Further, SI Sandeep is required to be recalled for cross examination in order to cross examine him with regard to the document given by the Transporter, who brought the cab in question from Mathura to Delhi. It may also be mentioned that in his zest to seek recall of all the prosecution witnesses, the applicant has also sought recall of one lady constable Manju, who as per record was not even examined as a prosecution witness. 35. It is further necessary to mention that on 04/02/2015 accused had moved an application u/s 311 Cr.P.C., thereby seeking recall of prosecutrix PW-2 and PW-23 Ayush Dabas. The application was dismissed. The present application has been filed now seeking recall of all PWs, including PW-2 and PW-23, while the order dated 04/02/2015 still remains unchallenged. 36. The application under consideration is thus nothing but an attempt to protract the trial and in fact seek an entire retrial. There is no change in circumstances except change of Counsel, which, to my mind, is no ground to allow the application. Interestingly, in para 17 of the application, it has been contended that the present counsel is not aware of the scheme and design of defence of the previous counsel and is thus at a loss and disadvantageous position to defend the accused and for conducting the case as per his acumen and legal expertise, the recalling of PWs are necessary. It may be noted that the defence of an under trial is not expected to vary from counsel to counsel and irrespective of change of counsel, an under trial is expected to have a single and true line of defence which cannot change every time he changes a counsel. Nor can a new counsel defend the case of such an under trial as per the new scheme and design in accordance with his acumen and legal expertise. 23. The High Court made a reference to the Criminal Law Amendment Act, 2013 providing for trial relating to offences under Section 376 and other specified offences being completed within two months from the date of filing of the charge sheet. Reference has also been made to circular issued by the Delhi High Court drawing the attention of the judicial officers to the mandate of speedy disposal of session cases. The High Court also referred to the decisions of this Court in Lt. Col. S.J. Chaudhary vs. State (Delhi Administration)[43], State of U.P. vs. Shambhu Nath Singh[44], Akil @ Javed vs. State of NCT of Delhi[45] and Vinod Kumar vs. State of Punjab[46], requiring the trials to be conducted on day to day basis keeping in view the mandate of Section 309 Cr.P.C. 24. After rejecting the plea of the accused that there was any infirmity in the conduct of the trial after detailed reference to the proceedings, the High Court concluded: 31. The aforesaid narration of proceedings before the learned Additional Sessions Judge clearly reflects that while posting the matter on day to day basis, the Courts only endeavour was to comply with the provisions of Section 309 Cr.P.C. as far as possible while ensuring the right of the accused to a fair trial. The earlier counsel had been seeking adjournment for consulting the petitioner which was duly granted and under these circumstances the submission of learned counsel for the petitioner that justice hurried is justice buried, deserves outright rejection. 25. It was then observed that competence of a counsel was a subjective matter and plea of incompetence of the counsel could not be easily accepted. It was observed : 32. The other submission of learned counsel for the petitioner that Sh. Alok Dubey, Advocate was not competent to appear as an Advocate inasmuch as he had not even undergone screening test as required by Bar Council of Delhi Rules and was not issued practice certificate, this submission is not fortified by any record. Much was said against the competency of the earlier counsel representing the petitioner. However, learned standing counsel for the State was right in submitting that competency of an Advocate is a subjective issue which should not have been attacked behind the back of the concerned Advocate. 33. Learned Additional Standing counsel for the State has furnished details of the number of questions put by the earlier counsel to the prosecution witnesses for showing the performance of the earlier counsel. Moreover, one cannot lose sight of the fact that the Advocate was appointed by the petitioner of his own choice. 26. Inspite of the High Court not having found any fault in the conduct of the proceedings, it held that although recalling of all the prosecution witnesses is not necessary recall of certain witnesses was necessary for the reasons given in para 15 (a) to (xx) on the application of the accused. It was observed that the accused was in custody and if he adopted delaying tactics it is only he who would suffer. 27. It is difficult to approve the view taken by the High Court. Undoubtedly, fair trial is the objective and it is the duty of the court to ensure such fairness. Width of power under Section 311 Cr.P.C. is beyond any doubt. Not a single specific reason has been assigned by the High Court as to how in the present case recall of as many as 13 witnesses was necessary as directed in the impugned order. No fault has been found with the reasoning of the order of the trial court. The High Court rejected on merits the only two reasons pressed before it that the trial was hurried and the counsel was not competent. In the face of rejecting these grounds, without considering the hardship to the witnesses, undue delay in the trial, and without any other cogent reason, allowing recall merely on the observation that it is only the accused who will suffer by the delay as he was in custody could, in the circumstances, be hardly accepted as valid or serving the ends of justice. It is not only matter of delay but also of harassment for the witnesses to be recalled which could not be justified on the ground that the accused was in custody and that he would only suffer by prolonging of the proceedings. Certainly recall could be permitted if essential for the just decision but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary for ensuring fair trial is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, we do not find any ground to justify the recall of witnesses already examined. 28. It will also be pertinent to mention that power of judicial superintendence under Article 227 of the Constitution and under Section 482 Cr.P.C. has to be exercised sparingly when there is patent error or gross injustice in the view taken by a subordinate court[47]*. A finding to this effect has to be supported by reasons. In the present case, the High Court has allowed the prayer of the accused, even while finding no error in the view taken by the trial court, merely by saying that exercise of power was required for granting fair and proper opportunity to the accused. No reasons have been recorded in support of this observation. On the contrary, the view taken by the trial court rejecting the stand of the accused has been affirmed. Thus, the conclusion appears to be inconsistent with the reasons in the impugned order. 29. We may now sum up our reasons for disapproving the view of the High Court in the present case: (i) The trial court and the High Court held that the accused had appointed counsel of his choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross- examination. They were under no handicap; (ii) No finding could be recorded that the counsel appointed by the accused were incompetent particularly at back of such counsel; (iiii) Expeditious trial in a heinous offence as is alleged in the present case is in the interests of justice; (iv) The trial Court as well as the High Court rejected the reasons for recall of the witnesses; (v) The Court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that the victim of the crime is not unduly harassed; (vi) Mere fact that the accused was in custody and that he will suffer by the delay could be no consideration for allowing recall of witnesses, particularly at the fag end of the trial; (vii) Mere change of counsel cannot be ground to recall the witnesses; (viii) There is no basis for holding that any prejudice will be caused to the accused unless the witnesses are recalled; (ix) The High Court has not rejected the reasons given by the trial court nor given any justification for permitting recall of the witnesses except for making general observations that recall was necessary for ensuring fair trial. This observation is contrary to the reasoning of the High Court in dealing with the grounds for recall, i.e., denial of fair opportunity on account of incompetence of earlier counsel or on account of expeditious proceedings; (x) There is neither any patent error in the approach adopted by the trial court rejecting the prayer for recall nor any clear injustice if such prayer is not granted. 30. Accordingly, we allow these appeals, set aside the impugned order passed by the High Court and dismiss the application for recall. This batch of appeals arise out of the common judgment of the High Court of Judicature at Allahabad, Lucknow Bench dismissing the writ petitions [W.P.No.6690 of 1996 (S/S) and batch] dated 14.09.2009, whereby the High Court upheld the award passed by the Industrial Tribunal and directed the appellant-university to consider the respondents for regularisation of their services as and when the vacancies arise and till that time they be paid the emoluments, which are being paid by university authorities to similarly situated workmen against the unsanctioned posts. 2. Before we advert to the contentious points, it would be appropriate to highlight the factual background of the case. In the year 1989, the Finance Officer of the University of Lucknow, Mr.R.S.Vishvakarma engaged the respondents in this batch of appeals as Routine Grade Clerk (RGC)/Peon by oral engagement as daily wagers for the Central Accounts Office and they were being paid from out of the contingency fund. In order to prevent the abuse of power in engaging daily wagers, the then Vice-Chancellor of the Lucknow University issued Order No.VC/1932/90 dated 03.08.1990 notifying that the daily wagers would not be allowed to continue in any case after 31.12.1990 unless prior written approval was obtained from the Vice-Chancellor. It was further directed that if there was any need of any extra hand, the Section Heads must send a demand for creation of posts to the Deputy Registrar (Admn.) with details justifying the need so that a consolidated statement for sanction of new posts in the university be sent to the State Government. As per the appellant-university, the Finance Officer neither dispensed with the respondents/daily wagers nor did he obtain written approval from the Vice- Chancellor. The engagement of the respondents came to an end with effect from 01.01.1991. 3. The terminated workers sent a legal notice on 28.01.1992 through Mazdoor Sabha to the Vice-Chancellor stating that they served the university till 31.12.1990 continuously and that they were terminated without assigning any reason and put forth the demand for reinstatement in service and backwages. All the ex-daily wagers further filed individual applications to the Deputy Labour Commissioner, Lucknow for conciliation of the dispute raised by them in February 1992. As no conciliation could be achieved, on the recommendation of the Conciliation Officer, the Deputy Labour Commissioner by his order dated 18.08.1992 referred all the cases to the Labour Court, Lucknow for adjudication of the dispute between respondents and the appellant-university. The Presiding Officer, Labour Court vide order dated 30.01.1996 held that termination of the workmen from 01.01.1991 by the university is illegal and directed the reinstatement of respondent No.1 with full back wages. Being aggrieved, the appellant- university filed a Writ Petition before the High Court challenging the award. The High Court disposed of the writ petition and connected petitions vide a common order dated 14.09.2009 affirming the award passed by the Labour Court and inter alia issued direction as aforesaid. The university has filed this batch of appeals assailing the order passed by the High Court. 4. Learned counsel for the appellants contended that merely because a casual wage worker or a temporary employee worked continuously for more than 240 days in a year, he would not be entitled to be absorbed in regular service or made permanent on the strength of such continuance, if the original appointment was made without following the due process of selection as envisaged by the rules. It was submitted the respondents were not engaged as against any sanctioned post and the impugned judgment of the High Court directing regularisation is violative of the principles laid down by this Court in Secretary, State of Karnataka and Others vs. Umadevi (3) and Others, (2006) 4 SCC 1. 5. Per contra, learned Senior Counsel Ms. Shobha Dikshit for the respondents submitted that the services of the respondents were terminated without giving any notice or retrenchment compensation and is contravention of Section 6-N of the U.P. Industrial Disputes Act, 1947. It was argued that the respondents were out of employment since 1991 and they are finding it difficult to survive along with their families with the meagre amount of Rs.650/- awarded to them under Section 17B of the Industrial Disputes Act, 1947. It was further submitted that the respondents juniors were retained and continued in service and subsequently, even new hands have been engaged and while so, the respondents were discriminated and the courts below rightly directed their regularisation. 6. We have given our thoughtful consideration to the rival contentions of both the parties and perused the impugned judgment and material on record. 7. Lucknow University is a statutory body and is governed by the U.P. State Universities Act, 1973. The Vice-Chancellor is the Principal Executive and exercises general supervision and control over all its affairs including appointments of non-teaching staff. The Registrar of the University is the administrative head who issues orders of appointment duly made and approved by the Vice-Chancellor. The appointments are to be made by the university against the sanctioned posts created by the Government and the Government determines the pay scale and allowances of the employees. The Finance Officer by himself had no right to appoint any person and university has not created extra post of Routine Grade Clerk or Record Boy or Peon. In the present case, the Finance Officer in the university engaged the respondents as daily wagers for his Central Accounts Section. Admittedly, the respondents were not engaged by following due procedure and their engagement was not against any sanctioned posts. In order to curb the illegal practice of engaging daily wagers, Vice- Chancellor of the University issued an order dated 03.08.1990 clarifying that the daily wagers will not be allowed to continue after 31.12.1990 until prior written approval is accorded by the Vice-Chancellor. No such approval was taken qua the respondents for their continuance. The respondents were terminated w.e.f. 01.01.1991. When the respondents appointments were illegal, the respondents would not be entitled to any right to be regularized or absorbed. 8. As noticed earlier, there is no appointment letter issued to the respondents by the Registrar on which they were engaged. The respondents have based their claim on service certificate issued by Mr. R.L. Shukla, the then Finance Officer of the University of Lucknow. Mr. R.L. Shukla in his evidence has stated that the daily wagers were engaged by the then Finance Officer, Mr. R.S. Vishvakarma as daily wage employees in the accounts section as per their need and they were terminated when their services were not required. He further stated that no particular nature of work was assigned to the respondents in the accounts section and the respondents were being paid out of recurring expenditure item. So far as the certificate issued to the respondents, Mr. Shukla has stated that those certificates issued to the respondents-workmen only to enable them to seek other job. 9. Learned Senior Counsel for the respondents has submitted that after removal of the respondents, similarly placed employees have been regularized and drawn our attention to regularisation of one such Narendra Pratap Singh. Evidence of Mr. Brij Pal Das Mehrotra, former Registrar of the University would show that the persons who are regularized are only those who were appointed by following due procedure. The said Narendra Pratap Singh was also appointed by following due procedure. As seen from Annexure (P-5) filed with rejoinder affidavit, the said Narendra Pratap Singh was appointed by the Registrar of the University as Routine Grade Clerk (RGC) on daily wage basis, the respondents were not so appointed by the Registrar of the university. The respondents have admittedly not produced any document to show that they were appointed by the university against sanctioned posts in accordance with statutory rules. If the original appointment was not made following due process of selection as envisaged by the relevant rules, the respondents cannot seek regularisation. The Labour Court and the High Court, in our view, fell in error in directing the regularisation of the respondents. 10. In the rejoinder-affidavit filed by the appellant-university, it is stated that the university has requested the State Government for sanction of 755 posts in various categories in order to regularise the persons working in the various departments of the university. The State Government sanctioned only 330 posts in various categories, as a result of which regularisation/samayojan of 330 persons were made strictly on the basis of their seniority. A bare perusal of letter No.26/C.S./70-4-99- 3(27)/99 dated 29.09.1999 by Special Executive Officer, Government of U.P. regarding absorption of non-teaching posts in the Lucknow University, it is clearly mentioned that if there is any disruption in the service of any employee, then the services of the prior period from the said disruption may not be calculated. A perusal of minutes of the Sub-Committee constituted by the Executive Committee held on 16.01.2001, it is clear that employees who were continuously working in the university were only regularised. The respondents have been out of employment from 01.01.1991 and at the time of regularisation/Samyojan, the respondents were not in service and, therefore, they cannot seek parity with the persons absorbed. 11. In Umadevis case, this Court settled the principle that no casual workers should be regularised by the Courts or the State Government and as per constitutional provisions all the citizens of this country have right to contest for the employment and temporary or casual workers have no right to seek for regularization. In para (47), this Court held as under: 47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. 12. In para (53) of Umadevis case, the Constitution Bench carved out an exception to the general principles enumerated above and it reads as under: 53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (1967) 1 SCR 128, R.N. Nanjundappa [1971] INSC 341; (1972) 1 SCC 409 and B.N. Nagarajan (1979) 4 SCC 507 and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. 13. As the respondents worked as casual workers only for about one and half years and not against any sanctioned posts, be it noted that even the benefit of para (53) of Umadevis case cannot be extended to the respondents. 14. In Satya Prakash & Others vs. State of Bihar & Others (2010) 4 SCC 179, this Court held as under: 7. We are of the view that the appellants are not entitled to get the benefit of regularisation of their services since they were never appointed in any sanctioned posts. The appellants were only engaged on daily wages in the Bihar Intermediate Education Council. 8. In Umadevi (3) case (2006) 4 SCC 1, this Court held that the courts are not expected to issue any direction for absorption/regularisation or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees. This Court held that such directions issued could not be said to be inconsistent with the constitutional scheme of public employment. This Court held that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. In view of the law laid down by this Court, the directions sought for by the appellants cannot be granted. (Underlining added) 15. The respondents were merely casual workers and they do not have any vested right to be regularised against the posts. The High Court fell in error in affirming the award passed by the Labour Court directing regularisation. In the facts and circumstances of the case, as the respondents were out of employment for more than twenty years and now they are over aged and cannot seek for regular appointment, in our view, the interest of justice will be subserved if the judgment of the High Court is modified to the extent by directing payment of monetary compensation for the damages to the respondents. 16. In considering the violation of Section 25F of the Industrial Disputes Act, 1947 in Incharge Officer & Anr. vs. Shankar Shetty (2010) 9 SCC 126 and after referring to the various decisions, this Court held that the relief by way of back wages is not automatic and compensation instead of reinstatement has been held to meet the ends of justice and it reads as under:- 2. Should an order of reinstatement automatically follow in a case where the engagement of a daily wager has been brought to end in violation of Section 25-F of the Industrial Disputes Act, 1947 (for short the ID Act)? The course of the decisions of this Court in recent years has been uniform on the above question. 3. In Jagbir Singh v. Haryana State Agriculture Mktg. Board, (2009) 15 SCC 327, delivering the judgment of this Court, one of us (R.M. Lodha, J.) noticed some of the recent decisions of this Court, namely, U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479, Uttaranchal Forest Development Corpn. v. M.C. Joshi, (2007) 9 SCC 353, State of M.P. v. Lalit Kumar Verma (2007) 1 SCC 575, M.P. Admn. v. Tribhuban (2007) 9 SCC 748, Sita Ram v. Moti Lal Nehru Farmers Training Institute (2008) 5 SCC 75, Jaipur Development Authority v. Ramsahai (2006) 11 SCC 684, GDA v. Ashok Kumar (2008) 4 SCC 261 and Mahboob Deepak v. Nagar Panchayat, Gajraula (2008) 1 SCC 575 and stated as follows: (Jagbir Singh case (2009) 15 SCC 327, SCC pp. 330 & 335, paras 7 & 14) 7. It is true that the earlier view of this Court articulated in many decisions reflected the legal position that if the termination of an employee was found to be illegal, the relief of reinstatement with full back wages would ordinarily follow. However, in recent past, there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that relief by way of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is in contravention of the prescribed procedure. Compensation instead of reinstatement has been held to meet the ends of justice. * * * 14. It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee. 4. Jagbir Singh (2009) 15 SCC 327 has been applied very recently in Telegraph Deptt. v. Santosh Kumar Seal (2010) 6 SCC 773, wherein this Court stated: (SCC p. 777, para 11) 11. In view of the aforesaid legal position and the fact that the workmen were engaged as daily wagers about 25 years back and they worked hardly for 2 or 3 years, relief of reinstatement and back wages to them cannot be said to be justified and instead monetary compensation would subserve the ends of justice. 17. In the light of the above discussion, the impugned judgment of the High Court is modified and keeping in view the fact that the respondents are facing hardship on account of pending litigation for more than two decades and the fact that some of the respondents are over aged and thus have lost the opportunity to get a job elsewhere, interest of justice would be met by directing the appellant-university to pay compensation of rupees four lakhs to each of the respondents. By order dated 11.07.2011, this Court directed the appellant to comply with the requirements of Section 17B of the Industrial Disputes Act, 1947 and it is stated that the same is being complied with. The appellant-university is directed to pay the respondents rupees four lakhs each within four months from the date of receipt of this judgment. The payment of rupees four lakhs shall be in addition to wages paid under Section 17B of the Industrial Disputes Act, 1947. 18. In the result, the impugned judgment is modified and these appeals are partly allowed in the above terms. No order as to costs. CIVIL APPEAL No. 318 OF 2011 1 This Appeal questions the correctness of the Judgment dated 12.3.2008 delivered by the Division Bench of the High Court of Punjab and Haryana in C.W.P. No. 1123 of 2006, on the basis of which the High Court had also allowed C.W.P. No. 1465 of 2006, C.W.P. No. 2166 of 2007, C.W.P. No. 7066 of 2008 and C.W.P. No. 7353 of 2008. Civil Appeal No. 318 of 2011 and Civil Appeal Nos. 459-462 of 2011 respectively assail these Judgments. It merits to mention that the connected Civil Appeal No. 535 of 2011 was, on the unrefuted submission made by the learned counsel for the Respondents/Landowners in that Appeal, dismissed as infructuous by an Order dated 11.3.2015 of this Court; the submission was that the Public Notice dated 8.4.2010 had released the subject land from acquisition. 2 The State of Haryana had issued a Notification under Section 4 of the Land Acquisition Act, 1984 (˜L.A. Act for brevity) on 18.1.2001 to acquire 12.18 acres of land falling in Village Khera Markanda and 11.64 acres of land falling in Village Ratgal as mentioned in the Schedule thereto for the construction of a fell-storm sewer, a sewage-treatment plant and a crematorium (Shamshan Ghat) at Kurukshetra. Simultaneous with the issuance of this Notification, the Appellant State had also invoked the urgency provisions contained in Sections 17(1) and 17(4), thereby denying to the landowners (some of whom are the Respondents before us) the opportunity to file Objections under Section 5A of the L.A. Act. A Declaration under Section 6 of the L.A. Act was issued the very next day, i.e. 19.1.2001. It was at this juncture that the Respondents/Landowners filed C.W.P. No. 2503 of 2002 and C.W.P. No. 8696 of 2002, (along with a third party namely Neelam Ram, the petitioner in C.W.P. No. 4887 of 2002) challenging the Section 4 Notification dated 18.1.2001 and the Section 6 Declaration dated 19.1.2001. 3 It will be pertinent to point out that by the time interim orders came to be passed in the Writ Petitions by the Division Bench on 7.2.2002, the one year period prescribed in the statute to advance from Notification to Declaration stage had already elapsed. It is also relevant to record that notwithstanding the interim order dated 7.2.2002, the Appellant State passed an Award on the next day, namely 8.2.2002, obviously oblivious of those interim orders. It also took possession of certain parts of the Scheduled lands. The one year prescription having been transgressed, the subject acquisition would have met its statutory death but for the feature that the urgency provisions had been invoked by the State in the event without legal propriety. The time table established under the L.A. Act requires to be recalled. Upon the publication of a Notification, affected landowners are required to file Objections within thirty days. Although no period has been prescribed for disposal of Objections by the Collector, this exercise must reach its culmination within one year of the Notifications issuance. If these actions are so done, the Government must direct the Collector to take order for the acquisition of the land which is a statutory provision which smacks superficiality. The Collector must also mark and measure the land in question, cause public notice to be given of the Governments intention to take possession of the land and invite claims for compensation etc. After deciding any objection or representation received from the interested parties, an Award has to be made within two years of the Declaration, failing which the entire acquisition proceedings would lapse. Of course the period covered by stay orders granted by a Court would be excluded. Parliament was, as is manifestly evident, alive to the injury that would inexorably visit the landowners if acquisition proceedings were not circumscribed by time, as compensation is pegged to the date of the Notification. The entire exercise has to be completed within three years. This time prescription is thus obviously intended to ensure that the landowners whose lands have been expropriated on the States continuing powers of eminent domain receive the market price for their property in close proximity of the time of acquisition. These persons would thus be in a position to purchase alternate property, which indubitably would not be possible if the compensation award is implemented after delay. Courts must be ever vigilant and resolute in protecting these persons from unfair treatment by the State. Thankfully, Parliament has, in terms of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013, provided amelioration against Governmental apathy. 4 By a brief Order delivered on 12.1.2004, that is in the era of Padma Sundara Rao vs. State of Tamil Nadu (2002) 3 SCC 533, the Division Bench of the Punjab and Haryana High Court, noting the contentions that the Appellant State had not adhered to the mandatory requirement of payment of 80 per cent compensation to the landowners and that it did not qualify as a case of urgency since the Appellant State passed had failed to publish an Award within one year after the Section 6 Declaration, quashed the latter. However, for reasons recondite, the Division Bench simultaneously permitted the petitioners before it to file Section 5A Objections within thirty days and permitted the Appellant State to issue a fresh Section 6 Declaration in the event that it found no substance in those Objections. The directions could not have been given by the Division Bench. Instead, the Division Bench should have simply quashed the Section 6 Declaration, at which point the Section 4 Notification would have lapsed, due to the fact that the one year period for filing a Declaration had already elapsed. In Greater Noida Industrial Development Authority vs. Devendra Kumar (2011) 12 SCC 375 it has been clarified that it is impermissible for the Government to proceed with the acquisition from the stage of Section 4. Applying the ratio of Kiran Singh vs. Chaman Paswan [1954] INSC 43; (1955) 1 SCR 117 which has been followed in Dr. Jogmittar Sain Bhagat vs. Dir. Health Services, Haryana (2013) 10 SCC 136 to the effect that a decree without jurisdiction is a nullity and its invalidity could be a subject at any stage in any proceedings and even at the stage of execution, the said Order of the Division Bench can be ignored. We think it appropriate to reproduce the operative part of this Order for reasons that will become apparent later:- In the facts and circumstances of the case, as mentioned above, in our view, interest of justice would be served, if we quash declaration under Section 6 of the Act dated 19.1.2001, and all subsequent proceedings that might have been taken thereafter with liberty to the petitioners to file objections under Section 5-A of the Act within 30 days from the date of receipt of a certified copy of the order, which, naturally shall be heard by the State or the authority constituted by the State for that purpose, in accordance with law and after giving an appropriate hearing to the petitioners if the objections are rejected, naturally, the Government will be in its power to issue declaration under Section 6 of the Act. Petition is disposed of accordingly. However, parties are left to bear their own costs. (emphasis supplied) 5 We must highlight the lapses by the Appellant State in the manner in which it conducted the acquisition. Significantly, no compensation whatsoever, leave alone the 80 per cent postulated by the Statute under Section 17(3), was given at the time that the urgency provisions were invoked. This exercise ought to have been carried out by passing a provisional or ad hoc Award containing the Collectors estimation of the compensation to be paid to the landowners. The State seems to be oblivious of the law and impervious to the plight of the landowners whose livelihood is virtually deracinated. Section 6 requires particular perusal and we are extracting its relevant portions for convenience. Also, for facility of reference, Sections 17(3A) is reproduced in order to emphasize that those provisions could be correctly and properly resorted to only if the State Government, through its Collector, had tendered 80 per cent of the compensation estimated by him. Section 6 “ Declaration that land is required for a public purpose “ (1) Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied, after considering the report, it any, made under section 5A, sub-section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders, and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section (1) irrespective of whether one report or different reports has or have been made (wherever required) under section 5A, sub-section (2): Provided that no declaration in respect of any particular land covered by a notification under section 4, sub-section (1),_ xxx xxx xxx Published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification: 17. Special powers in cases of urgency ” xxx xxx xxx (3A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3), ” tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31, sub-section (2), and where the Collector is so prevented, the provisions of section 31, sub- section (2) (except the second provision thereto), shall apply as they apply to the payment of compensation under that section. 6 Even though the holding of property is no longer a fundamental right guaranteed under Part III of the Constitution of India, it has been given constitutional protection under Article 300A which came to be inserted into the Constitution by the Constitution (Forty-fourth Amendment) Act, 1978 which omitted Article 19(1)(f), viz., to acquire, hold and dispose of property. The Constitution now guarantees that no person shall be deprived of his property save by authority of law. We have mentioned this for the reason that if the Union or the State Government is desirous of depriving any person of his property it can only do so by authority of law. That authority, as is facially evident, inter alia, is the necessity to tend the payment of 80 per cent of the compensation estimated by the Collector in the event that Section 17 is to be pressed into service, with the objective of denying the landowners remonstration rights by filing Objections in consonance with Section 5A of the L.A. Act. Expropriatory legislation, such as the L.A. Act, must compulsorily be construed strictly. The Appellant State cannot be permitted to invoke one part of Section 17 while discarding another. Sections 17(3A) and 17(3B), which were inserted by the Act 68 of 1964 with effect from 24.9.1994, cannot be rendered nugatory. In this regard, we are reminded of the Judgment of this Court in Babu Verghese v. Bar Council of Kerala (1999) 3 SCC 422 which held that: It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor (1875) 1 Ch D 426 which was followed by Lord Roche in Nazir Ahmad v. King Emperor AIR 1936 PC 253, and has been upheld in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh AIR 1954 SC 322, State of U.P. v. Singhara Singh AIR 1964 SC 358 and Hussein Ghadially v. State of Gujarat (2014) 8 SCC 425. 7 Prima facie, time for filing of 5A Objections would have to be computed to have commenced on the date of the Order, i.e. 12.1.2004, and further there seems to be no alternative but to deem the issuance of the Section 4 Notification for the same date. Hence the Section 6 Declaration would have to be made at the latest by 11.1.2005. However, we reiterate that the High Court ought to have simply quashed the Section 4 Declaration in personam, or if circumstances so commanded, in rem. By permitting nay enjoining the petitioners to file Objections, the High Court has caused a piquant position to come into place. But, as is trite, no party can be made to suffer any disadvantage due to an act of the Court. The Respondents filed Objections on 11.2.2004 which were dismissed in September 2004 paving the way for the passing of a fresh Section 6 Declaration on 30.12.2004. The Respondents thereupon challenged the Section 4 Notification dated 18.1.2002 and the Section 6 Declaration dated 30.12.2004 in terms of C.W.P. No. 1123 of 2006, C.W.P. No. 1465 of 2006 and C.W.P. No. 2166 of 2007. 8 In the second salvo of writ petitions, the Division Bench has found in the impugned Judgment dated 12.3.2008 that the second Section 6 Declaration had been made after the passing of the period prescribed in the L.A. Act, as the Section 4 Notification was issued on 18.1.2001. It noted that this Court had held in Padma Sundara Rao that the subject statutory period has to be imparted a strict construction; the period could be increased only in the circumstances postulated and provided for in the Act itself. The Division Bench also observed that even if the second Section 6 Declaration were to be accepted as valid by construing the one year period from the date of the Order of the previous Division Bench dated 12.1.2004, the Appellant State had failed to pass an Award within two years, thus falling foul of Section 11A of the L.A. Act. The Section 4 Notification, the Section 6 Declaration and all proceedings pursuant thereto were therefore quashed. We find it apposite to note the error in the latter observation. According to Section 11A of the L.A. Act, the award has to be made within two years of the date of the Declaration, which requirement was met in this case. There was no basis on which to calculate this period from the date of the previous Order, as the Division Bench has done. 9 It would be pertinent to clarify that the quashing of the entire acquisition proceeding has to be explicitly expressed. This Court has in Shyam Nandan Prasad v. State of Bihar (1993) 4 SCC 255, Abhey Ram, Delhi Administration v. Gurdip Singh Uban (1999) 7 SCC 44, Delhi Administration v. Gurdip Singh Uban (2000) 7 SCC 296 and The Chairman and M.D., TNHB v. S. Saraswathy (Judgment delivered on 11.5.2015 in Civil Appeal Nos. 736-737 of 2008) reiterated and restated the established and consistent view that quashing of acquisition proceedings at the instance of one or two landowners does not have the effect of nullifying the entire acquisition. In A.P. Industrial Infrastructure Corporation Limited v. Chinthamaneni Narasimha Rao (2012) 12 SCC 797, this Court has reiterated the established proposition that landowners who are aggrieved by the acquisition proceedings would have to lay a challenge to them at least before an Award is pronounced and possession of the land is taken over by the Government. Numerous decisions of this Court have been discussed obviating the need to analyze all of them once again. However, generally speaking, Courts come to the succour of those who approach it. In some instances equities are equalized by allowing subsequent slothful petitioners, belatedly and conveniently jumping on the bandwagons, to receive, at the highest, compensation granted to others sans interest. 10 The Appellant State has filed this Appeal contending that the parties are bound by the Division Bench Order dated 12.1.2004, which allowed for filing of a fresh Section 6 Declaration. This is a specious submission because the State ought to have assailed that Order since its conclusions were contrary to the ratio of the Constitution Bench of this Court in Padma Sundara Rao. It may be contended that the landowners could equally have challenged this Order. However, given the resources available virtually at the beck and call of the State, it cannot be excused for its neglect or jural folly and must be held responsible for its failures. This is especially so since the concerned citizens face the draconian consequences of expropriation of their land with its attendant loss of income. The Appellant State further contended that the initial Section 6 Declaration was within the statutory time period and upon the curing of technical defects, the original Section 6 Declaration continued. The Appellant State also argued that the possession of certain lands has already been taken by the Haryana Urban Development Authority (HUDA) and therefore those matters have acquired finality in accordance with the ratio of Padma Sundara Rao, which is available in these extracted paragraphs: 11. It may be pointed out that the stipulation regarding the urgency in terms of Section 5-A of the Act has no role to play when the period of limitation under Section 6 is reckoned. The purpose for providing the period of limitation seems to be the avoidance of inconvenience to a person whose land is sought to be acquired. Compensation gets pegged from the date of notification under Section 4(1). Section 11 provides that the valuation of the land has to be done on the date of publication of notification under Section 4(1). Section 23 deals with matters to be considered in determining the compensation. It provides that the market value of the land is to be fixed with reference to the date of publication of the notification under Section 4(1) of the Act. The prescription of time-limit in that background is, therefore, peremptory in nature. In Ram Chand v. Union of India (1994) 1 SCC 44 it was held by this Court that though no period was prescribed, action within a reasonable time was warranted. The said case related to a dispute which arose before prescription of specific periods. After the quashing of declaration, the same became non est and was effaced. It is fairly conceded by learned counsel for the respondents that there is no bar on issuing a fresh declaration after following the due procedure. It is, however, contended that in case a fresh notification is to be issued, the market value has to be determined on the basis of the fresh notification under Section 4(1) of the Act and it may be a costly affair for the State. Even if it is so, the interest of the person whose land is sought to be acquired, cannot be lost sight of. He is to be compensated for acquisition of his land. If the acquisition sought to be made is done in an illogical, illegal or irregular manner, he cannot be made to suffer on that count. ****** 14. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd.) The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narsimhaiah case. In Nanjudaiah case the period was further stretched to have the time period run from date of service of the High Courts order. Such a view cannot be reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only clause (i) and/or clause (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent. .* * * * * 16. The plea relating to applicability of the stare decisis principles is clearly unacceptable. The decision in K. Chinnathambi Gounder v. Government of Tamil Nadu AIR 1980 Mad 251 : (1980) 2 MLJ 269 (FB)was rendered on 22-6- 1979 i.e. much prior to the amendment by the 1984 Act. If the legislature intended to give a new lease of life in those cases where the declaration under Section 6 is quashed, there is no reason why it could not have done so by specifically providing for it. The fact that the legislature specifically provided for periods covered by orders of stay or injunction clearly shows that no other period was intended to be excluded and that there is no scope for providing any other period of limitation. The maxim actus curiae neminem gravabit highlighted by the Full Bench of the Madras High Court has no application to the fact situation of this case. 11 The Division Bench has predicated its decision to set aside the Notification as well as the Declaration on Padma Sundara Rao, which ironically the previous Division Bench had failed to follow. The decision of the Constitutional Bench in Padma Sundara Rao held that the language in Section 6(1) is clear and unambiguous, and the time period cannot be stretched as this would not be in keeping with the legislative intent. The contention of the Appellant State that the Declaration dated 30.12.2004 is a continuation of the initial Declaration is thus clearly erroneous, as such a finding would be in the face of the strict interpretation of time prescribed by Padma Sundara Rao and the unambiguous language of Section 6. Had the Legislature intended to allow for such a continuation, it would have done so by specifically providing for it, as it has done for periods covered by orders of stay and injunction. Furthermore, the Appellant State cannot place reliance on an erroneous Order which caused grave prejudice to the rights of the Respondents. It would be apt to mention the legal principle that no party should suffer for the mistake of the Court. Since compensation is calculated based on the value of the land on the date of the Section 4 Notification, the Order of the Division Bench dated 12.1.2004 resulted in the landowners getting compensation at 2001 rates even though the Award was finally passed in 2006 and the compensation is yet to be paid to the Respondents. Had the Division Bench Order struck down only the Declaration, which in turn would have resulted in the entire acquisition lapsing, the Appellant State would have had to reinitiate acquisition proceedings, resulting in the Respondents receiving compensation at the market rates current at the time of the fresh Notification. We therefore find that the Declaration dated 30.12.2004 cannot be upheld merely by virtue of the previous Division Benchs erroneous and prejudicial Order. We are in agreement with the decision of the High Court in the impugned Judgment and consequently dismiss the Appeal. C.A. Nos. 459-460 of 2011 12 We are of the opinion that the substance of the issues in question in this batch of petitions are analogous to those in Civil Writ Petition No. 1123 of 2006 which has been assailed in Civil Appeal No. 318 of 2011, save for the difference that it is the Haryana Urban Development Authority which has filed the Appeal. In that light, the findings made in the preceding Appeal apply squarely to this batch of Appeals as well, and are decided in the same terms. C.A. Nos. 461-462 of 2011 13 The factual scenario in these Appeals is different from Civil Appeal No. 318 of 2011, in that compensation has been paid to the Contesting Respondents, whose land is now in the possession of Haryana Urban Development Authority. Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 makes it clear that the three requirements for an acquisition to attain finality are the passing of an award, payment of compensation and taking of possession, all of which are met here. Furthermore, the Contesting Respondents in these Appeals had not been parties before the Division Bench in its Judgment dated 12.3.2008. As that Judgment did not explicitly state that it would apply to all the landowners affected by the impugned acquisition process, it was limited in scope to the parties before it, for reasons that we have already discussed herein. It would also be pertinent to note that the Contesting Respondents in these Appeals only filed writ petitions challenging the acquisition after the Judgment dated 12.3.2008 was passed. We find that till the date of the 12.3.2008 Judgment, these Respondents had acquiesced to the acquisition and had allowed it to become final, and therefore they could not seek to challenge it by placing reliance on a Judgment that did not enure to their benefit. 14 A number of Proforma Respondents were impleaded in Civil Appeal No. 462 vide order dated 12.4.2013, and we are not aware of whether the acquisitions with regard to their land has become final. However, these Proforma Respondents first challenged the acquisition by filing a writ petition in 2010, well after the Judgment dated 12.3.2008. It is thus clear that these Respondents, too, initially consented to the acquisition process and only challenged it belatedly by seeking to rely upon a favourable Judgment that did not relate or pertain to them. The impugned Orders dated 12.5.2008 in C.W.P. No 7066 of 2008 and 13.5.2008 in C.W.P. No. 7353 of 2008 as well as Order dated 19.1.2010 in C.W.P. No. 163 of 2010 are therefore set aside, and these Appeals are accordingly allowed. In this appeal, by special leave, the legal substantiality and acceptability of the judgment and order dated 29.08.2014 passed by the Division Bench of the High Court of Calcutta in AST No. 177/2013 whereby it has overturned the decision of the learned Single Judge requiring the respondent-writ petitioner to knock at the doors of the alternative forum by way of appeal, on the foundation that the authority that had passed the adverse order against the first respondent had no jurisdiction, and assuming he had the jurisdiction, it stood extinguished by expiration of the time limit stipulated in certain paragraphs of the West Bengal Kerosene Oil Control Order, 1968 (for brevity, ˜the Control Order), is called in question. 2. The facts which need to be exposited for adjudication of this appeal are that the first respondent was granted the licence for carrying on the business of superior kerosene oil as an agent by the Joint Director of Consumer Goods, West Bengal in accordance with the paragraph 5(1) of the Control Order. The monthly allocation of public distribution system of superior kerosene oil to the said respondent was fixed by the Director of Consumer Goods, West Bengal at 1,82,000 litres per month. On 10.8.2012 a physical inspection was carried out by the Area Inspector attached to the office of the Sub Divisional Controller, Food and Supplies, Burdwan (for short, SCFS) at the depot of the respondent. The concerned Inspector submitted the report to the SCFS stating that 71,494 litres of superior kerosene oil had been delivered in excess by the dealer. On 8.4.2013, the SCFS issued a notice seeking explanation about the discrepancy pointed out by the Area Inspector. On receipt of the said show cause notice, the first respondent submitted his explanation on 16.4.2013. The SCFS afforded an opportunity of personal hearing to the dealer on 3.5.2013 and the same was availed of. After conducting the enquiry, the SCFS forwarded the entire record to the District Controller, Food and Supplies Department, Burdwan, who in turn sent the entire case records to the Director of Consumer Goods for appropriate decision. After scrutiny of the records, the Director of Consumer Goods issued a show cause notice to the dealer on 26.6.2013. The first respondent replied to the same on 28.6.2013 through his counsel stating, inter alia, that under the Control Order, after the licence is issued to an agent by the Office of the Director, the District Magistrate having jurisdiction or any officer authorised by him, is alone empowered to look into the functioning of the said agency and to give directions to him and/or initiate action against the concerned agent. Additionally, it was also put forth that the second show cause notice on the self-same allegations was untenable in law and accordingly prayer was made to withdraw and/or rescind the notice and take steps for disposal of the matter in terms of the provisions of the Control Order. 3. As the factual matrix would further undrape, the Director of Consumer Goods, vide order dated 22.7.2013 narrated the facts in detail and came to hold that SCFS has the authority to ask for explanation regarding distribution of superior kerosene oil in his jurisdiction; and that the Director of Consumer Goods being the Licensing Authority, can exercise the power to issue show cause notice and after giving the delinquent agent a fair opportunity of being heard, pass appropriate orders. The said order also would reflect that the counsel for the first respondent had appeared before the Director on 17.7.2013. The concerned Director analysed the factual matrix and in exercise of power conferred on him under paragraph 9(ii) of the Control Order imposed a penalty of Rs.26,08,816.00 and further directed reduction of monthly allocation of superior kerosene oil of the agent by 12,000 litres for a period of one year. 4. The order passed by the Director was assailed by the agent in W.P.No. 25204 (W) of 2013. The learned Single Judge vide order dated 22.08.2013 referred to paragraph 10 of the Control Order which provides for an appeal to be preferred and accordingly directed that if the agent prefers an appeal by 6.9.2013, the appellate authority shall dispose of the same by 31.12.2013. The learned Single Judge further directed that the agent shall maintain with utmost care an inventory of stocks and accounts for periodical submission to the authorities and the penalty amount should be deposited by 6.9.2013 and the said penalty amount shall be kept in a separate interest bearing account. 5. Being aggrieved by the aforesaid order, the respondents 1 and 2 preferred an appeal being AST No. 177 of 2013 before the Division Bench. It was urged in the intra-court appeal that the proceeding before the Director of Consumer Goods was patently without jurisdiction, for power of cancellation or suspension could only be exercised by the Director or District Magistrate having jurisdiction and in the case at hand the District Magistrate, Burdwan is the competent authority to exercise the power under paragraph 9 of the Control Order and not the Director of Consumer Goods; that assuming the Director had jurisdiction, the proceeding that was initiated had lapsed after expiry of 30 days after the date of issuance of the show cause notice by the Director; and that in any case the proceeding was initiated by SCFS and he could not have sent the record to the Director after expiry of 30 days when the proceeding stood lapsed. It was also urged that the order in question was served on the first respondent on 12.8.2013 and, therefore, the date mentioned in the order could not validate the same as it was not dispatched within 30 days. The submissions put forth by the first respondent before the Division Bench of the High Court were seriously contested by the learned counsel for the Department. 6. The Division Bench posed the following two questions:- a. Who is the competent authority to take disciplinary action either by cancellation or suspension of the licence of a S.K. Oil agent appointed in a district outside the Calcutta? b. Whether the order of cancellation or suspension of licence in terms of Paragraph 9 of the West Bengal Kerosene Control Order will become effective on the date of passing of the said order or when the said order is communicated to the concerned party? 7. After posing the aforesaid two questions, the Division Bench took note of the fact that the respondent-dealer was authorised to carry on the business as an agent of super kerosene oil in the district of Burdwan and the SCFS had issued a show cause to the respondent and instead of taking the final decision himself, forwarded the records to the Director of Consumer Goods for necessary action who issued a fresh show cause notice on the self-same allegations and passed a order on 22.07.2013 which was without jurisdiction in view of the conjoint reading of the language employed in paragraphs 8, 9 and 10 of the Control Order. Thereafter, the Division Bench proceeded to deal with the issue whether the Director had passed the order imposing penalty within 30 days from the date of serving the show cause notice in terms of paragraph 9 of the Control Order, for the same was served on the dealer on 12.8.2013. The Court took note of the contention of the advanced by the learned counsel for the appellants therein that the order under Paragraph 9 passed by the competent authority in writing within 30 days from the date of serving the show cause notice should mean the communication of the order in writing within the said period of 30 days and not from the signing of the order and accepted the same. To arrive at the said conclusion, the appellate Bench placed reliance on Rani Sati Kerosene Supply Company and Others v. The State of West Bengal and Others[1]. It referred to paragraphs 27 and 29 of the said decision and thereafter came to hold thus:- For the reasons discussed hereinabove, we hold that the Sub-Divisional Controller, Food and Supplies, Burdwan lawfully initiated the proceeding against the appellant/writ petitioner no. 1 by issuing show cause notice but did not conclude the same within 30 days as required under paragraph 9 of the West Bengal Kerosene Control Order, 1968. We further hold that the Director of Consumer Goods had no jurisdiction and/or authority to initiate any proceeding against the appellant/writ petitioner no. 1 in terms of paragraph 9 of the West Bengal Kerosene Control Order since the licence was granted to the appellant/writ petitioner no. 1 for carrying on business as S.K. Oil agent in the district of Burdwan which is outside Calcutta. In the result, the impugned order dated 22nd July, 2013 passed by the Director of Consumer Goods cannot survive and is liable to be set aside since the said Director had no authority and/or jurisdiction to pass any order under paragraph 9 of the West Bengal Kerosene Control Order, 1968 in respect of S.K. Oil agent of Burdwan. Therefore, the impugned order dated 22nd July, 2013 issued by the Director of Consumer Goods in respect of the appellant/writ petitioner no. 1 is quashed. Being of this view, it allowed the appeal and set aside the judgment of the learned Single Judge of the High Court. 8. We have heard Mr. Mohan Parasaran, learned senior counsel along with Mr. Anip Sachtey, learned counsel for the appellants and Mr. Vivek K. Tankha, learned senior counsel along with Mr. Rajan K. Choursia, learned counsel for the first respondent. 9. At the outset, it is obligatory on our part to state that when the final hearing of the appeal took place, we were apprised at the Bar that SCFS who represents the District Magistrate, has issued a fresh show cause notice in respect of self-same lis and accordingly the following order was passed:- In course of hearing we have been apprised that the Sub-Divisional Controller, Food and Supplies, Burdwan, who represents the District Magistrate, Burdwan, has issued a fresh show cause notice on the self-same lis and against its notice to show cause, an appeal has been preferred before the Director of Consumer Goods in Kolkata. Be it noted, the show cause number is Memo No. 4159/SCF&S/BDN/14. The appeal arisen out of the said show cause notice before the appellate authority, shall remain stayed till the pronouncement of the judgment. 10. We shall advert to the legal permissibility of the second show cause in respect of the same alleged deviation by the agent at a later stage, if required. As the factual foundation would exposit, the thrust of the controversy is whether the Director of Consumer Goods, Food and Supplies Department has the jurisdiction to take action in the manner he has taken; and whether the order has to be passed and communicated within 30 days under the Control Order and the consequence of failure in such a situation. The Control Order was brought into force on 26.6.1968 in exercise of powers conferred by sub-section 1 of Section 3 of the Essential Commodities Act, 1955 read with clauses (d), (e), (h) and (j) of sub-section 2 of that Section and Section 7(1) of the said Act and the Order No. 26(11)- Com.Genl/66, dated 18th June, 1966 feeling the necessity and expediency for proper maintenance of supplies and for securing the equitable distribution and availability at fair prices of kerosene in West Bengal. Paragraph 3(a) of the Control Order defines agent which reads as under:- 3(a) agent means a person who has been appointed as an agent of an oil distributing company by such company and has been granted a licence under paragraph 5 of this Order. 11. Paragraph 3(c) of the Control Order defines dealer which reads as follows:- 3(c) dealer means a person who has been granted a licence under paragraph 6 of this Order authorising him to carry on trade in kerosene. 12. Paragraphs 3(d) and 3(e) of the Control Order define the Director and the District Magistrate respectively, which reads as follows:- 3(d) Director means the Director of Consumer Goods, Department of Food and Supplies, Government of West Bengal and includes any officer, not below the rank of Assistant Director, Directorate of Consumer Goods, Food and Supplies Department, Government of West Bengal who can perform all the functions of the Director and this order including cancellation of licence. 3(e) District Magistrate includes the Deputy Commissioner of a district and also includes any person not below the rank of a Sub-divisional Controller of Food and Supplies in the Department of Food and Supplies, Government of West Bengal, authorised by the District Magistrate or Deputy Commissioner, as the case may be, in writing to perform all or any of the functions of the District Magistrate under this Order. 13. Paragraph 5 of the Control Order deals with grant of licence to an agent. It reads as under:- 5. Grant of licence to agent “ (1) The Director may grant a licence to any agent in West Bengal authorising him to carry on trade in kerosene as such agent. (2) A licence granted under sub-paragraph (1) shall be in Form A and shall be subject to such conditions as are specified therein and such other conditions as the Director may lay down from time to time in the interest of fair distribution of kerosene within the State. (3) No agent shall sell, supply or transfer kerosene to any person other than a dealer duly licensed under paragraph 6 of this Order, or a holder of a permit or delivery order issued under paragraph 11 of this Order. 14. Paragraph 6 deals with grant of licence to a dealer. It is as follows:- 6. Grant of licence to dealer “ (1) the Director or the District Magistrate having jurisdiction may grant a licence to any person authorsing such person to carry on trade in kerosene as a dealer. (2) A licence granted under sub-paragraph (1) shall be in Form B and shall be subject to such conditions as are specified therein and such other conditions as the Director or the District Magistrate having jurisdiction may impose from time to time for the sake of fair distribution of kerosene. 15. Paragraph 9 of the Control Order deals with cancellation or suspension of licence. The same being of significance, is reproduced in entirety herein below:- 9. Cancellation or suspension of licence “ If it appears to the Director or the District Magistrate having jurisdiction that an agent or a dealer has indulged in any malpractice or contravened any provision of this Order or any condition of the licence or any direction given under paragraph 12 of this Order, he may forthwith as the Agent or Dealer to show cause for violations made or suspend the licence: Provided that the agent or the dealer who has been asked to show- cause or whose licence has been suspended shall be given an opportunity of being heard and the Director or the District Magistrate having jurisdiction shall pass an order in writing within 30 days from the date of serving the show-cause notice or suspension of the licence taking any or all of the actions given below. He may let off the Agent or Dealer if sufficient cause has been shown. He may pass an order by imposing a penalty which according to the gravity of the violations made will not be less than Rs.10,000/- in case of an Agent and Rs.2,000/- in case of a Dealer and revoke the suspension order if already served. He may cancel the licence: Provided that the order shall be passed ex parte if the Agent or the Dealer whose licence has been so suspended or on whom show-cause notice has been served fails to appear at the hearing. 16. Paragraph 10 of the Control Order which provides for appeal is extracted hereunder:- 10. Appeal “ (a) Any person aggrieved by an Order passed under paragraph 8 or paragraph 9 of this Order, may within 30 days from the date of the order, prefer an appeal to the State Government in the Food and Supplies Department. (b) elsewhere, “ (i) where the order is passed by the District Magistrate or the Deputy Commissioner of a district, to the State Government, (ii) where the order is passed by any other officer authorised by the District Magistrate or the Deputy Commissioner of a district under clause (e) of paragraph 3, to the District Magistrate or the Deputy Commissioner, as the case may be, of the district. 17. We have reproduced the relevant paragraphs of the Control Order to understand the schematic purpose and effect of the Control Order. Paragraph 5, as it envisages, empowers the Director to grant licence to any agent in West Bengal authorising him to carry on trade in kerosene as such agent. Paragraph 6 empowers the Director or the District Magistrate having jurisdiction to grant the licence to any person as a dealer. As the scheme would reflect there is a distinction between an agent and a dealer, for the agent is granted licence under paragraph 5 of the Control Order whereas dealer is granted licence under paragraph 6 of the Control Order. Paragraph (7) provides for renewal of licences, licence fees, etc. The relevant part of the said paragraph is as follows:- 7. Renewal of licences, licence fees, etc. “ (1) Every licence issued under paragraph 5 or paragraph 6 of this Order shall be valid up to 31st December next following the date of issue and may, at the discretion of the authority by which the licence was granted, be renewed for successive periods of one year on an application made in that behalf to such authority in the manner provided hereinafter before the expiry of the date of validity of the licence: Provided that “ (i) the Director may, by notification in the Official Gazette, extend the period of validity of existing agents licences issued under paragraph 5 of this Order for such period, not exceeding 60 days, beyond the 31st December, hereinbefore mentioned, as he may, for reasons to be recorded in writing, think fit; and (ii) the Director, or the District Magistrate having jurisdiction, may, by notification in the Official Gazette, extend the period of validity of existing dealers licences issued under paragraph 6 of this Order for such period, not exceeding 60 days beyond the 31st December, hereinbefore mentioned, as he may, for reasons to be recorded in writing, think fit: Provided further that the Director or the District Magistrate, as the case may be, may, by notification in the Official Gazette, extend the time for filing of application for renewal of licences: Provided also that on an application made by a licensee in that behalf, the authority by which the licence was issued may, if he considers it expedient so to do, renew a licence issued under paragraph 5 or paragraph 6 of this Order, for a maximum period of three years at a time on payment in non-judicial stamps of the fees for renewal of licences referred to in sub-paragraph (3) of this paragraph, for each year of renewal or part thereof. (2) Every application for the issue of licence under paragraph 5 or paragraph 6 of the Order or for the renewal of such licence under this paragraphs shall be made to the appropriate authority in Form C. 18. On a reading of that paragraph it is clear that power conferred on the Director and the District Magistrate are different, for the Director is a higher authority and the rule clothes him with more authority. Needless to say, the said paragraph has to be read in juxtaposition with other paragraphs. It is clear from paragraph 5 that the Director alone is authorised to grant a licence to an agent whereas a dealers licence can be granted either by the Director or by the District Magistrate. Sub-para 3 of Paragraph 5 of the Control Order is also indicative of the fact that the agent operates at a larger scale than the dealer. An agent can sell, supply or transfer kerosene to a dealer, holder of a permit or delivery order and no other person. Sub-para 2 of Paragraph 6 of the Control Order is differently worded as it postulates that conditions can be specified by the Director or the District Magistrate having the jurisdiction. The conditions imposed may vary from time to time for the sake of fair distribution of kerosene. The authorities are also different as per the dictionary clause. 19. In this backdrop, we are required to understand the language employed in paragraph 9 of the Control Order. The said paragraph, as we perceive, is rather loosely and ambiguously worded. It becomes obvious when we appreciate the Control Order on the bedrock of schematic interpretation. It is worth noting that while paragraph 5 deals with grant of licence to an agent by the Director, paragraph 6 deals with grant of licence to a dealer by the Director or the District Magistrate. The term District Magistrate as per paragraph 3(e) of the Control Order includes authorities mentioned therein. Paragraph 9 which pertains to cancellation or suspension of licence is a composite paragraph and stipulates when and who can cancel or suspend a licence of an agent or a dealer. The said power is exercised, when an agent or dealer has indulged in any kind of malpractice or contravened any provision of the Control Order or conditions applicable, etc. On a literal reading of paragraph 9, it may convey or one may be emboldened to urge that Director as well as the District Magistrate including the authorised officers mentioned in paragraph 3(e), have concurrent jurisdiction to cancel or suspend the licence granted to an agent or a dealer. However, such an interpretation could not be occurred with the legislative intent and would lead to absurdity and anomaly. Therefore, such kind of an interpretation has to be avoided. We are disposed to think so inasmuch as an agent, as noted above, is appointed by the Director and has the authority to carry on trade of kerosene within the entire State. But a dealer, cannot supply, sell or transfer kerosene to any person other than a holder of a permit, delivery order or through a dealer specified in paragraph 6. That apart, it is noticeable that sub- paragraph (e) of paragraph (3) a District Magistrate would include a sub- Divisional Controller of Food and Supplies, authorised by the District Magistrate or Deputy Commissioner and District Magistrate is for a specified small area within the State. He cannot exercise jurisdiction in respect of an area beyond the geographical boundaries of the area/district. In such a situation to place a construction on Paragraph 9 that the Director as well as the District Magistrate would have concurrent jurisdiction would be inapposite. In our considered view, a logical and reasonable interpretation to paragraph 9 of the Control Order has to be preferred instead of adopting the loose meaning in the literal sense. Such an interpretation would be in consonance with the principles of harmonious construction, that is, harmonious reading of paragraphs 5, 6, 7 and 9 of the Control Order. It is based on the premise that the authority who has the right to grant licence has the authority to suspend or cancel the licence. In this regard, we may fruitfully reproduce a passage from Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and Others[2], wherein it has succinctly been stated thus:- Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. 20. We have referred to the said passage, for the Control Order was brought into force for maintenance of supplies and for securing the equitable distribution and availability of kerosene at fair prices in West Bengal. It has controlling measures and it subserves the public purpose. The intent of the Control Order is to totally prohibit creation of any kind of situation which will frustrate the proper distribution of kerosene oil. The purpose of any Act or Rule or Order has its own sanctity. While interpreting the same, the text and context have to be kept in mind. In this regard, we may usefully refer to an authority in Workmen v. Dimakuchi Tea Estate[3], wherein the three-Judge Bench while interpreting the expression any person occurring in Section 2(k) of the Industrial Disputes Act, 1947 observed that the definition clause must be read in the context of the subject matter and scheme of the Act, and consistently with the objects and other provisions of the Act. Elaborating further, the Court proceeded to state:- It is well settled that the words of a statute, when there is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained. (Maxwell, Interpretation of Statutes, 9th Edn., p. 55). 21. Keeping in view the aforesaid rule of interpretation, we are constrained to think that it would be incongruous to hold that even when the licence of an agent at the State level is granted and issued by the Director, a District Magistrate, as defined in paragraph 3(e) of the Control Order, in exercise of concurrent jurisdiction can suspend or cancel the State level licence. Be it noted, as per Section 21 of the General Clauses Act, power to issue notification/ order/rules/bye-laws, etc. includes the power to amend/ vary or rescind. Though the said provision is not applicable, yet it is indicative that generally unless the statute or rule provides to the contrary, either expressly or impliedly, issuing or appointing authority would also exercise the right to cancel or suspend the licence. As has been stated earlier, on a cursory reading it may appear that paragraph 9 confers concurrent jurisdiction. The said paragraph deals with suspension or cancellation of licence and is a composite paragraph, which applies to licence granted to an agent as well as the dealer. It refers to the power of a Director and District Magistrate having jurisdiction. The words District Magistrate having jurisdiction are also used in paragraph 6. The expression District Magistrate having jurisdiction reflects the legislative intent that District Magistrate having jurisdiction under paragraph 9 would be the same District Magistrate or authority which has the power to grant licence to a dealer in Form B under paragraph 6. Read in this manner, we have no hesitation in holding that it is the Director alone who could have issued the show cause notice under paragraph 9 and has the authority and jurisdiction to pass an order in terms of paragraph 9 of the Control Order. The earlier notice issued by SCFS has to be regarded at best a show cause notice to ascertain and affirm facts alleged and it ensured a response and reply from the first respondent. The said notice by SCFS could not have culminated in the order under paragraph 9, for he has no authority and jurisdiction to pass an order suspending or cancelling the licence. Therefore, the matter was rightly referred to the Director for action, if required, in terms of paragraph 9 of the Control Order. 22. Having held that, we think it appropriate to refer to the aspect of communication pertaining to period as prescribed in paragraphs 9 and 10. The High Court has taken note of the fact that SCFS had issued the notice of show cause to which the agent had replied. The said authority has forwarded the matter to the Director, Consumer Goods for his perusal and necessary action, who in exercise of his authority had passed the order on 22.7.2013 which was received by the first respondent on 12.8.2013. The Division Bench has opined that as per Paragraph 9, the order has to be passed within 30 days after the issue of the notice to show cause and same has to be communicated within the said period and passing an order on the file would not tantamount to an order. 23. The Division Bench, as it appears, has been guided by the decision in Rani Sati Kerosene Supply Company and Others (supra). In the said case the agent had challenged the order of suspension-cum-show cause notice and the order of cancelling the agency licence. The High Court had taken note of the contention that assuming the Director had jurisdiction, the order having been communicated beyond 30 days from the issue of the order of suspension, it was liable to be set aside. After stating the facts, the earlier Division Bench proceeded to interpret Paragraphs 9 and 10 of the Control Order and opined thus:- 29. After going through the aforesaid two paragraphs, I find that against an order of cancellation of licence, there is a provision of appeal to be availed of within 30 days from the date of the order. There is, however, no power conferred upon the appellate authority to entertain such appeal after the period of limitation by condoning the delay. If I accept the contention of Mr. Chakraborty, the learned Counsel appearing for the State that the date of communication of the order is insignificant, in that case, the right of appeal conferred upon the aggrieved agent against an order of cancellation can easily be frustrated by communicating the order after the expiry of 30 days from the date of the order. Therefore the phrase “by an order in writing to be made” appearing in the proviso to the Paragraph 9 is to be construed as “by an order in writing to be communicated” and so long the order is not communicated, it should be presumed that the order has not been passed and consequently, a duty is cast upon the authority concerned to communicate the order to the aggrieved, either direct or constructively. Mere passing of an order and keeping it in the file will not fulfil the requirement of the said Paragraph 9. 30. Mr. Banerjee, the learned advocate appearing for the petitioners, has in this connection placed strong reliance upon a decision of the Supreme Court in the case of Assistant Transport Commissioner, Uttar Pradesh v. Nand Singh, [reported in 179 ELT (510) where the Apex Court while considering Section 35 of the Central Excise and Salt Act, 1944 held that the date of communication of the order will be the starting point of limitation for filing an appeal and not the date of the order, because, the order would be effective against the person affected by it only when it comes to the knowledge either direct or constructively, otherwise not. The Supreme Court further held that mere writing of an order in the file, kept in the office of the authorities, is no order in the eye of law. 31. The aforesaid decision of the Supreme Court supports the contention of the petitioners that the order of cancellation, for all practical purposes, should be deemed to have been passed on January 30, 2004 when the same was faxed for communication to the petitioners and served upon them. Thus, the order of cancellation of licence was, in the eye of law, passed beyond 30 days from the date of passing the order of suspension and consequently, the order of suspension had automatically ceased to have any effect from January 10, 2004, and the order of cancellation not having been passed in accordance with law within 30 days from December 10, 2003, the Director could not pass any such order beyond that date. Thus, the order impugned is liable to be quashed also on the aforesaid ground. The said judgment is the fulcrum of reasoning of the impugned judgment. 24. The aforesaid decision, as is evident, lays down that passing of the order and communication thereof must be within 30 days and on that basis has opined that the order passed on the file and not communicated to the person aggrieved is not an order that can be taken cognizance of. There can be no scintilla of doubt that unless an adverse order is communicated that does not come into effect. Passing of an order on the file does not become an order in the eye of law. But the core question would be, if an order is passed within 30 days and communicated thereafter, what would be the effect. In the instant case, as the factual matrix would unveil, the order was passed before expiration of 30 days, but the same was served on the first respondent beyond 30 days. The thrust of the matter is whether the order has to be passed and communicated within 30 days. Paragraph 9 of the Control Order requires the competent authority to pass an order within 30 days from the date of serving the show cause notice or the suspension of licence. The word used is shall. Paragraph 10 of the Control Order enables the aggrieved person to prefer an appeal against an order passed under Paragraph 8 or 9 within 30 days to the State Government in Food and Supplies Department. In this context, reference to the authority in MCD v. Qimat Rai Gupta and others[4] is of significance. In the said case, the Court was interpreting the word made occurring in Section 126(4) of the Delhi Municipal Corporation Act, 1957, which stipulated that no amendment under sub-section 1 shall be made in the assessment list in relation to certain aspects. It was contended before this Court on behalf of the Municipal Corporation of Delhi that the use of the expression made occurring in the said sub-section would necessitate communication of the order. It was contended before this Court by the Corporation that the distinction must be made between communication of order and making thereof inasmuch as whereas communication may be necessary so as to enable an assessee to prefer an appeal against the order of assessment but only signing of the order would subserve the purpose of saving the period of limitation. The submission was that the expression no amendment under sub-section (1) shall be made should be given a liberal interpretation. Reliance was placed on the pronouncement in CCE v. M.M. Rubber and Co.[5] The said stand was controverted on the ground that the Act having been enacted for the purpose of controlling the abuse of power on the part of the Commissioner, the same should be given purposive meaning so as to fulfil the purport and object of the legislation. While dealing with the period of limitation, the Court observed:- 16. In interpreting a provision dealing with limitation, a liberal interpretation in a situation of this nature should be given. Although an order passed after expiry of the period of limitation fixed under the statute would be a nullity, the same would not mean that a principle of interpretation applied thereto should not (sic) be such so as to mean that not only an order is required to be made but the same is also required to be communicated. 17. When an order is passed by a high ranking authority appointed by the Central Government, the law presumes that it would act bona fide. Misuse of power in a situation of this nature, in our opinion, should not be readily inferred. It is difficult to comprehend that while fixing a period of limitation, Parliament did not visualise the possibility of abuse of power on the part of the statutory authority. It advisedly chose the word made and not communicated. They, in ordinary parlance, carry different meanings. 25. After so stating, the Court proceeded to interpret the term made and observed that meaning of a word depends upon the text and context and it will also depend upon the purport and object it seeks to achieve. The two-Judge Bench referred to Surendra Singh v. State of U.P.[6], Harish Chandra Raj Singh v. Dy. Land Acquisition Officer[7] and K.Bhaskaran v. Sankaran Vaidhya Balan[8]. The Court reproduced paragraphs 12 and 18 from M.M. Rubber and Co. (supra). They read as follows:- 12. It may be seen therefore, that, if an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed therefor. The order or decision of such authority comes into force or becomes operative or becomes an effective order or decision on and from the date when it is signed by him. The date of such order or decision is the date on which the order or decision was passed or made: that is to say when he ceases to have any authority to tear it off and draft a different order and when he ceases to have any locus paetentiae. Normally that happens when the order or decision is made public or notified in some form or when it can be said to have left his hand. The date of communication of the order to the party whose rights are affected is not the relevant date for purposes of determining whether the power has been exercised within the prescribed time. xxxxx xxxxx xxxxx 18. Thus if the intention or design of the statutory provision was to protect the interest of the person adversely affected, by providing a remedy against the order or decision any period of limitation prescribed with reference to invoking such remedy shall be read as commencing from the date of communication of the order. But if it is a limitation for a competent authority to make an order the date of exercise of that power and in the case of exercise of suo motu power over the subordinate authorities orders, the date on which such power was exercised by making an order are the relevant dates for determining the limitation. The ratio of this distinction may also be founded on the principle that the Government is bound by the proceedings of its officers but persons affected are not concluded by the decision. Eventually, the Court came to hold thus: An order passed by a competent authority dismissing a government servant from services requires communication thereof as has been held in State of Punjab v. Amar Singh Harika[9] but an order placing a government servant on suspension does not require communication of that order. (See State of Punjab v. Khemi Ram[10].) What is, therefore, necessary to be borne in mind is the knowledge leading to the making of the order. An order ordinarily would be presumed to have been made when it is signed. Once it is signed and an entry in that regard is made in the requisite register kept and maintained in terms of the provisions of a statute, the same cannot be changed or altered. It, subject to the other provisions contained in the Act, attains finality. Where, however, communication of an order is a necessary ingredient for bringing an end result to a status or to provide a person an opportunity to take recourse to law if he is aggrieved thereby, the order is required to be communicated. 26. We have referred to the aforesaid authority in extenso as the Division Bench has in one line stated that the said decision makes it clear that communication of an order is necessary ingredient for bringing an end result to a status or to provide a person an opportunity to take recourse to law if he is aggrieved thereby, then the said order is required to be communicated. To arrive at the said conclusion, as has been stated earlier, the Division Bench has found support from Rani Sati Kerosene Supply Company and Others (supra) wherein it has been held that if an order is communicated after 30 days, an order of cancellation can easily be frustrated and, therefore, the phrase by an order in writing to be made appearing in proviso to Paragraph 9 of the Control Order is to be construed as by an order in writing to be communicated. 27. The Division Bench has read the prescription of 30 days passing of an order in writing within 30 days from the date of serving the show cause notice or suspension of licence to be mandatory. To elaborate, if the order is not passed within the said period, the authority cannot pass any order or if it passes an order, it is a nullity. In this context, we may fruitfully refer to a passage from G.P. Singhs book, as has been reproduced by the three-Judge Bench in Kailash v. Nankhu and others[11]. It reads as under:- Justice G.P. Singh notes in his celebrated work Principles of Statutory Interpretation (9th Edn., 2004) while dealing with mandatory and directory provisions: The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: ˜No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered. (p. 338) ˜For ascertaining the real intention of the legislature, points out Subbarao, J. ˜the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory. (pp. 339-40) 28. Keeping in view the aforesaid principles, if it is held that the order would become a nullity, it really does not serve the purpose of the Control Order. On the contrary, it frustrates it and, therefore, the interpretation placed by the High Court on Paragraph 9 in juxtaposition with Paragraph 10 to treat the order has null and void is neither correct nor sound. It is desirable that the authority shall pass an order within 30 days from the date of show cause. Be it noted that there are two contingencies when the show cause is issued for violation or when an order of suspension is passed. There can be no trace of doubt that the order will take effect from the date when it is served. The order, unless it is served, definitely neither the agent nor the dealer would suspend its activities or obey any order, for he has not been communicated. Regard being had to this aspect, it is to be seen whether the prescription of 30 days from the date of order as provided in Paragraph 10 would make the order null and void. The order passed by the authority comes into effect when it is communicated. An order passed in file in case of this nature would not be an effective order, for it is adverse to the interest of the dealer or agent and, therefore, paragraph 10 has to be given a purposive meaning. It has to convey that 30 days from the date of the order which is an effective order, and that is the date of communication. Unless such an interpretation is placed, the intention of the rule making authority and also the intention behind the object and reasons behind the Control Order and the Essential Commodities Act, 1955 would be frustrated. Thus, we are of the considered opinion that the view expressed by the High Court on this score also is absolutely incorrect and wholly unsustainable. 29. Apart from above, the words used in Paragraph 10 are date of the order. In the scheme of the Control Order, the order comes into effect from the date of receipt by the agent or the dealer. Once that becomes the decision, the commencement of limitation of 30 days for the purpose of Paragraph 10 would be the date when the order is effective. The High Court in Rani Sati Kerosene Supply Company and Others (supra) has opined that if the order of cancellation is not served on the affected person and the appeal period expires, there is the possibility that the adverse order would become unassailable. The reasoning is totally fallacious. An appeal can only be preferred when the order is effective. The ineffective order, that is to say, uncommunicated order cannot be challenged. Therefore, the reasoning given by the court in earlier judgment is erroneous and hence, the reliance thereupon by the impugned order is faulty. There has to be a purposive construction of the words from the date of order. To place a construction that the date of an order would mean passing of the order, though not made effective would lead to an absurdity. 30. In view of the aforesaid analysis, we arrive at the irresistible conclusion that the High Court has erroneously interpreted Paragraph 9 and 10 of the Control Order and that is why it has arrived at an erroneous conclusion. When we had reserved the judgment, we were apprised that a fresh show cause notice had been issued for the self-same allegation by the SCFS and an appeal has been preferred against them. As we have held, the Director alone has the jurisdiction to pass the order, the said order remains a valid order and can be challenged in an appeal under Paragraph 10 and the appellate authority would be the State Government. 31. Consequently, the appeal is allowed and the order passed by the Division Bench in AST No. 177/2013 is set aside and the respondent no.1 is granted liberty to prefer an appeal within the prescribed period before the State Government. Be it noted, the Control Order has been amended in 2014 whereby the period of limitation has been extended. Be that as it may, we direct that the period of limitation shall commence from today. There shall be no order as to costs. 1. Leave granted. 2. This appeal is directed against the final judgment and order dated 09.02.2015 passed by the High Court of Judicature at Bombay in Writ Petition No. 9388 of 2014 which arises out of judgment and order dated 24.09.2014 passed by the Court of Small Causes at Bombay in Municipal Election Petition No. 129 of 2012 holding that the election petition filed by respondent No.1 herein questioning the appellants election as a Councilor of the Bruhan Mumbai Municipal Corporation from Ward No.76 is within the period of limitation prescribed under Section 33 of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as the Act). 3. In order to appreciate the issue involved in this appeal, it is necessary to state a few relevant facts: (a) The election schedule for General Election 2012 of Councilors under the Act was published by Notification dated 02.02.2012 declaring the date of poll as 16.02.2012 and counting of votes on 17.02.2012. The said Notification also declared that the list of elected candidates along with total number of valid votes polled by them will be published in the Government Gazette on or before 21.02.2012 as required under the provisions of Sections 10, 28(k) and 32 of the Act. (b) The appellant and respondent No.1 herein contested the election from Ward No.76 for Municipal Corporator. The election was held on 16.02.2012 and after counting, which took place on 17.02.2012, the Election Officer declared the appellant herein to have been elected as a Municipal Corporator from Ward No.76. A certificate to that effect was also issued by the Election Officer in favour of the appellant herein in Form No. 21-C as per Rule 103 of Municipal Corporation of Greater Mumbai conduct of Election Rules 2006 (hereinafter referred to as ˜the Rules) on 17.02.2012. Thereafter on 21.02.2012, the Municipal Commissioner published the Official Gazette declaring the names of the candidates elected from all the 227 wards of the Municipal Corporation with the names of their political parties and the votes polled by them as per Section 10 and Section 32 (i) of the Act and Rule 104 of the Rules. (c) Challenging the election of the appellant herein, on 28.02.2012, respondent No.1 filed Election Petition No. 129 of 2012 in the Court of Chief Judge, Small Causes Court, Mumbai. After service of notice, the appellant herein appeared before the Chief Judge and filed written statement contesting inter alia on the ground that the said election petition filed by respondent No.1 herein was barred by limitation as provided in Section 33 (1) of the Act. According to the appellant, the election petition was required to be filed within 10 days from the date on which the list prescribed under clause (k) of Section 28 was available for sale or inspection as provided in Section 33 (1) of the Act. It was contended that since in this case, the list was published and was available for sale or inspection on 17.02.2012, hence, the limitation to file election petition was up to 27.02.2012 as prescribed under Section 33 (1) of the Act whereas the election petition was filed on 28.02.2012 by the election petitioner. It was, therefore, barred by limitation and hence liable to be dismissed as being barred by time. She also filed an application before the Chief Judge praying for framing the issue of limitation as a preliminary issue. Initially, the Chief Judge had rejected the said application but thereafter by order dated 30.07.2013 issued direction to try the said issue as a preliminary issue. After hearing the parties, by judgment and order dated 24.09.2014, the Chief Judge held that the election petition was within limitation. He accordingly entertained the election petition filed by respondent No.1 herein for being tried on merits. (d) Aggrieved by the said judgment, the appellant herein approached the High Court of Bombay by way of W.P. No. 9388 of 2014. By judgment and order dated 09.02.2015, the learned Single Judge of the High Court dismissed the petition and upheld the judgment of the Chief Judge. The High Court also held that the election petition filed by respondent No.1 herein is within limitation as prescribed under Section 33 (1) of the Act. (e) Against the said judgment, the present appeal has been filed by way of special leave. 4. Heard Mr. Vinay Navare, learned counsel for the appellant and Mr. Sudhanshu S. Choudhari, learned counsel for respondent No.1, Ms. Jayashree Wad, learned counsel for respondent No.2 and Mr. Vijay Kumar, learned counsel for respondent No.3. 5. Learned Counsel for the appellant while assailing the legality and correctness of the impugned order reiterated the submissions, which were urged by him before the Courts below. According to the learned counsel, both the Courts below erred in holding that the election petition filed by respondent No. 1 herein (election petitioner) is within limitation as prescribed under Section 33 (1) of the Act. In other words, it was his submission that both the Courts below should have held that the election petition filed by respondent No. 1 herein was beyond the period of limitation and in consequence was liable to be dismissed as being barred by limitation. 6. Elaborating the aforementioned submissions, learned counsel contended that in order to decide the question of limitation and how it will apply to the facts of the case in hand, two Sections are relevant, namely, Section 33 (1) and Section 28 (k) of the Act. Learned counsel contended that Section 33 (1) prescribes limitation of 10 days for filing the election petition and the period of 10 days has to be counted from the date on which the list prescribed under Section 28 (k) of the Act is available for sale or inspection. 7. Learned counsel pointed out that the election in question was held on 16.02.2012 and counting of votes was done on 17.02.2012 followed by declaration of election result declaring the appellant to have won the election and finally issuance of certificates of the election result as required under Rule 103 of the Rules in the prescribed format (Form No. 21- C) were given to the appellant herein and the election petitioner (respondent No. 1 herein) on the same day, i.e., 17.02.2012 by the Returning Officer. Similarly, it was pointed out that the list of the ward was also made available for sale or/and inspection on 17.02.2012 to all including the candidates immediately after declaration of result and handing over the certificates in Form No. 21-C to both the candidates by the Returning Officer. Learned counsel thus contended that in the light of these admitted facts, the limitation to file Election Petition began from 17.02.2012 as prescribed under Section 33 (1) and ended on 27.02.2012. Since the election petition was filed by respondent No.1 on 28.2.2012, it was liable to be dismissed as being barred by limitation. 8. In reply, learned counsel for respondent No. 1 while supporting the reasoning and the conclusion of the High Court, contended that the view taken by the High Court is just and proper and hence it does not call for any interference by this Court. It was his submission that the limitation to file election petition began from 21.02.2012, this being the date on which the gazette publication of election results in the official Gazette was published by the Election Commissioner as required under Section 10 read with Section 32 of the Act and Rule 104 of the Rules. According to learned counsel, 10 days period prescribed for limitation therefore began from 21.02.2012 and ended on 02.03.2012. Learned counsel, therefore, urged that the election petition filed by the election Petitioner (respondent no. 1) on 28.02.2012 was within limitation and hence was rightly held to be within time for being tried on merits. 9. Having heard the learned Counsel for the parties and on perusal of the record of the case including their written submissions, we find force in the submissions of the learned counsel for the appellant. 10. The question which arises for consideration in this appeal is whether the election petition filed by respondent No.1 against the appellant under Section 33 (1) of the Act before the Chief Judge is within limitation as prescribed under Section 33 (1) of the Act? 11. Section 28 (k) and Section 33 (1) of the Act, which are relevant for deciding the aforesaid question, read as under: Section 28 (k) (k) the State Election Commissioner shall, as soon as may be, declare the result of the poll, specifying the total number of valid votes given for each candidate, and shall cause lists to be prepared for each ward, specifying the name of all candidates, and the number of valid votes given to each candidate. In accordance with such rules as the State Election Commissioner may frame for the purpose and on payment of such fee as may be prescribed by him a copy of such list shall be supplied to any candidate of the ward and shall be available for inspection to any voter of the ward. Section 33 (1) Election petitions to be heard and disposed of by Chief Judge of the Small Cause Court. (1) If the qualification of any person declared to be elected for being a councilor is disputed, or if the validity of any election is questioned, whether by reason of the improper rejection by the State Elections Commissioner of a nomination or of the improper reception of refusal of a vote, or for any other cause or if the validity of the election of a person is questioned on the ground that he has committed a corrupt practice within the meaning of section 28F, any person enrolled in the municipal election roll may, at any time, within ten days from the date on which the list prescribed under clause (k) of section 28 was available for sale or inspection apply to the Chief Judge of the Small Causes Court. If the application is for a declaration that any particular candidate shall be deemed to have been elected, the applicant shall make parties to his application all candidates who although not declared elected, have, according to the results declared by the State Election Commissioner under section 32, a greater number of votes than the said candidate, and proceed against them in the same manner as against the said candidate. (emphasis supplied) 12. The question is “ what is the true meaning of the words “any person enrolled in the municipal election roll may, at any time, within ten days from the date on which the list prescribed under clause (k) of section 28 was available for sale or inspection apply to the Chief Judge of the Small Causes Court occurring in Section 33 (1) of the Act. 13. A plain reading of the aforementioned words shows that the period of 10 days prescribed for filing the election petition begins from “the date” on which the list prescribed under clause (k) of Section 28 of the Act was available for sale or inspection. In other words, the starting point of limitation for filing the election petition for counting 10 days is the date” on which the list prescribed under clause (k) of Section 28 of the Act was available for sale or inspection. Therefore, in order to see as to when the list was prepared and made available for sale or inspection, it is necessary to read Section 28 (k) of the Act. 14. Section 28 (k) of the Act provides that the State Election Commissioner shall, as soon as may be, declare the result of the poll, specifying the total number of the valid votes given for each candidate and shall cause lists to be prepared for each ward, specifying the names of all candidates and the number of valid votes given to each candidate. It also confers power on the State Election Commissioner to frame Rules for payment of such fee as may be prescribed by him for supply of a copy of such list to any candidate of the ward and for its inspection by any voter of the ward. 15. It is pertinent to mention here that till date the State Election Commissioner has not framed any Rules as required under Section 28 (k) of the Act. 16. Section 29 empowers the State Government to frame rules for the conduct of election on the subjects specified in clause (a) to (i). In addition, the State is also empowered to make rules on other subjects regarding conduct of election as it may think proper. The State has accordingly framed rules called Municipal Corporation of Greater Mumbai Conduct of Election Rules 2006. 17. Rule 2 (q) of the Rules defines Returning Officer as an Officer appointed as such under Rule 3. Rule 3 enables the Municipal Commissioner designate to nominate any officer of the State Government not below the rank of Deputy Collector or of the Corporation not below the rank of Assistant Municipal Commissioner as the Returning Officer for the purpose of conducting the election. Rule 103 provides that the Returning Officer shall complete and certify the return of election in Form- 21 C and send the signed copies thereof to the Municipal Commissioner and State Election Commissioner. Rule 104 inter alia provides for grant of certificate of election to returned candidate as required under Section 32 and also empowers the State Election Commission to publish the result in the Official Gazette. 18. At the outset, we consider it apposite to state that if the State Election Commissioner has failed to frame the Rules for proper implementation of the functions set out in Section 28 (k) of the Act and due to that reason, there appears to be some kind of ambiguity noticed in its interpretation, then in our considered opinion, such provision should be interpreted as far as possible in a manner which may benefit the elected candidate rather than the election petitioner. 19. This Court in Anandilal and another vs. Ram Narain and others [AIR 1984 SC 1383] had the occasion to construe Section 15 of the Limitation Act. While construing the said section, the learned Judge A.P. Sen J. speaking for the Bench observed in para 10 It is also true that in construing statutes of limitation considerations of hardship and anomaly are out of place. Nevertheless, it is, we think, permissible to adopt a beneficent construction of a rule of limitation if alternative constructions are possible. Our observations made above are also in line keeping in view this principle. 20. This we have said because we find that the High Court in Para 30 has held that since no rules have been framed and there appears to be some ambiguity in applying Section 28 (k), therefore, in such circumstances while interpreting such provision, its benefit must go to the election petitioner (defeated candidate) rather than to the elected candidate. We do not agree with the High Court on this issue as in our opinion it should be the other way round as held by us supra. 21. On perusal of the impugned judgment, we find that the High Court in Para 23 has held that the list was prepared by the Returning Officer immediately after the declaration of the result of the election on 17.02.2012 and it satisfied all the requirements of Section 28 (k) of the Act. The High Court therefore held that the list was issued under Section 28 (k) of the Act. 22. We are in agreement with this finding of the High Court as in our opinion also, the list prepared by the Returning Officer on 17.02.2012 was in conformity with all the requirements specified in Section 28 (k) of the Act. 23. The next question that needs to be examined is on which date such list was available for sale or inspection to the voter of the ward. To decide this question, we consider it apposite to read the evidence adduced by the parties on this issue in the affidavits. 24. This is what the appellant (respondent No. 3 in the election petition) said on affidavit on this issue: 5. I say that the Election Result of Ward No. 76 of Mumbai Municipal Corporation was declared by the Returning Election Officer on 17th Feb. 2012 at about 12.30 p.m. I say that after the counting was over the Election officer prepared list of votes polled by each contesting candidate as prescribed under clause (k) of section 28 of Mumbai Municipal Corporation Act which is a same list annexed hereto as Exhibit A and also annexed as Exhibit E of the Election Petition. I say that the said Election result as contemplated under section 28 (k) of MMC Act was available for sale and inspection since 17th Feb. 2012. I say that the Petitioner and his election Agent and his Counting Agents who were present in the counting Hall during Counting of votes, took inspection of the Election Result declared by the Returning/Election officer I prepared as per Section 28 (k) of the MMC Act. I say that thereafter the copy of the Election Result was taken by the Petitioner on 17.02.2012 itself which is annexed as Exhibit E to the Election Petition. 6 7. I say that on the date of counting i.e. on 17.02.2012, I was present in the counting hall and the Petitioner was also present in counting hall with her Election Agent and counting Agents. I further say that after counting was completed on the same day, the concerned election officer had published the Election Result as prescribed under section 28 (k) of the MMC Act and gave inspection and copies of the Result to all the candidates present on 17.02.2012. I say that the Petitioner himself took the inspection of the result on the same day i.e. 17.02.2012 and thereafter collected the copy of the Result sheet as declared by the Election officer under section 28 (k) of the Mumbai Municipal Corporation Act. The copy of the same is filed by the Petitioner and marked as exhibit E to the election petition. 25. So far as the election petitioner is concerned, she did not deny much less categorically the statement of the appellant quoted above in her affidavit and instead said as under: 3. I say that in so far as preliminary issue framed by this Honble Court in regard to the limitation is concerned, I say that result of the Municipal Elections in question was declared on 17.02.2012. My advocate, thereafter, had taken up the matter with the Respondent No. 1 Corporation so as to ascertain as to when, the list prescribed under clause (k) of section 28 has been made available for sale and inspection by his letter dated 23.02.2012. Accordingly, the Deputy Election Officer of Respondent No. 1 Corporation by its letter dated 28.02.2012 informed my advocate that Gazette Notification under Section 10 to 32 of the MMC Act was published in Government Gazette on 21.02.2012. I hereby produce original letter dated 28.02.2012 addressed by the Dy. Election Officer attached to the respondent No. 1 as Document No.1, I, therefore, pray that the said letter issued by the respondent No. 1 through its Dy. Election Officer be read into as evidence in relation to the preliminary issue framed by this Honble Court. I thus, say that the Respondent No. 1 notified result of the election in the Official Gazette by its Notification dated 21st February, 2012 as required under Section 28 (k) of the Municipal Corporation of Greater Mumbai. 5. I, therefore, say that since the above-said Gazette Notification was published on 21.02.2012, election petition filed by me is within limitation considering Section 33(1) of the said Act. 26. After reading the aforesaid two statements of the parties, we have no hesitation in holding that the list prescribed under Section 28 (k) was made available to all the parties including the voter of the ward in question on 17.02.2012 by the Returning Officer. This we say so for the reasons that firstly, there is no ground much less sufficient ground to disbelieve the sworn testimony of the appellant wherein she said that the appellant and respondent No.1 herein (election petitioner) including their voting agents and other persons were throughout present in-person on 17.02.2012 during counting of votes. Indeed, counting of votes is always done in presence of the candidates and their agents and in this case also it was done in presence of the candidates, who contested the election. Secondly, as soon as the results were announced on 17.02.2012, the appellant and respondent No.1 herein were given their respective certificates in Form-21C as prescribed in Rule 103 of the Rules by the Returning Officer. Thirdly, respondent No.1 herself inspected the list prepared by the Returning Officer, which she could not do unless the list was made available for inspection on 17.02.2012 by the Returning Officer. Fourthly, the Returning Officer could not have announced the results unless he had first prepared the list specifying therein the necessary details which were required for declaring the result of election and lastly, there was no reason for not making the list available to the voter on 17.02.2012 and keep withholding when it was prepared on that day itself by the Returning Officer for declaration of the result of the election. 27. When we read the statement of respondent No. 1(election petitioner) extracted supra, we find that she did not deny her presence on the whole day on 17.02.2012 nor she denied what was specifically stated by the appellant in her affidavit. All that respondent No.1 herein said was that on 23.02.2012, her advocate wrote a letter to the Corporation as to when the list would be available and the Corporation by letter dated 28.02.2012 informed her that the Gazette Notification under Sections 10 and 32 of the Act was published on 21.02.2012. On this basis, respondent no. 1 claimed that limitation to file election petition would begin from 21.02.2012 and not from 17.02.2012. 28. Learned counsel for respondent No.1, therefore relying upon the aforesaid statement, made attempt to contend that the limitation would begin, as held by the High Court in her favour from 21.02.2012, for filing election petition which is the date on which the election results were declared and then were published in the official gazette as provided in Section 10 read with Section 32 of the Act and hence 10 days will have to be counted from 21.02.2012. Learned counsel, thus submitted that the election petition filed by respondent No.1 on 28.02.2012 was within limitation because 10 days period prescribed under Section 33 (1) ended on 02.03.2012. 29. We do not agree with this submission. It is, in our opinion, wholly misplaced in the facts of this case. Firstly, Section 33 (1) only mentions Section 28 (k) and does not refer to any other section much less Section 10 or/and 32 for deciding the issue of limitation. In other words, Section 33 (1) is controlled by Section 28 (k) only and not by any other section of the Act for deciding the issue of limitation. Secondly, if the intention of the legislature was to calculate the period of limitation from the date of issuance of Official Gazette as provided in Section 10 and/or Section 32, as contended by the learned counsel for respondent No.1, then instead of mentioning Section 28 (k), the legislature would have mentioned Section 10 and/or Section 32 in Section 33(1) of the Act. However, it was not done. The legislative intention, therefore, appears to be clear leaving no ambiguity therein by including Section 28 (k) only and excluding Section 10 and 32 in Section 33 (1). 30. It is a settled principle of rule of interpretation that the Court cannot read any words which are not mentioned in the Section nor can substitute any words in place of those mentioned in the section and at the same time cannot ignore the words mentioned in the section. Equally well settled rule of interpretation is that if the language of statute is plain, simple, clear and unambiguous then the words of statute have to be interpreted by giving them their natural meaning. [See. Interpretation of statute by G.P. Singh 9th Edition page 44/45]. Our interpretation of Section 33 (1) read with Section 28 (k) is in the light of this principle. 31. We accordingly, hold that the list prescribed under Section 28(k) was available for inspection and sale to the voters of the ward in question on 17.02.2012. In view of this finding, the limitation to file election petition would begin from 17.02.2012 and it will be up to 27.02.2012. In other words, period of limitation of 10 days prescribed for filing the election petition in Section 33 (1) of the Act would begin from 17.02.2012 and it would be up to 27.02.2012. 32. It was, therefore, necessary for respondent No.1 (election petitioner) to have filed the election petition on any day between 17.02.2012 to 27.2.2012. Since the election petition was filed on 28.02.2012, a date beyond 27.02.2012, it was liable to be dismissed as being barred by limitation. In the absence of any provision made in the Act for condoning the delay in filing the election petition, the Chief Judge had no power to condone the delay in filing the election petition beyond the period of limitation prescribed in law. Indeed, no such argument was advanced by the learned counsel for respondent No.1 in this regard. 33. Before parting with the case, we consider it appropriate to observe that the State Election Commissioner would be at liberty to frame Rules under Section 28 (k) for its proper implementation. Indeed, when the legislature has conferred a rule making power on the specified authority for proper and effective implementation of Section 28 (k) then in our opinion, such power should be exercised by the State Election Commissioner within reasonable time by framing appropriate Rules. 34. In view of the foregoing discussion, we cannot agree with the reasoning and the conclusion arrived at by the two courts below when both proceeded to hold that the election petition filed by respondent No.1 on 28.02.2012 was within limitation. We accordingly hold that the election petition filed by respondent No.1 out of which this appeal arises was barred by limitation and hence it should have been dismissed as being barred by limitation. 35. The appeal is accordingly allowed. Impugned judgment is set aside. As a consequence, Election Petition No.129 of 2012 filed by respondent No.1 is dismissed as barred by limitation. There shall be no order as to costs. This appeal assails the correctness of the judgment dated 01.07.2005 passed by the High Court of Judicature at Rajasthan Jaipur Bench in Criminal Appeal No.1248 of 2002, whereby the High Court confirmed the conviction of the accused-appellants under Sections 302 and 201 IPC and sentence of life imprisonment imposed on each of them with a fine of Rs.2,000/- with default clause and also two years rigorous imprisonment with a fine of Rs.500/- with default clause respectively. 2. Case of the prosecution is that deceased-Manoj was the helper on the truck No.MP-07-2627 and had gone to Pune and thereafter to Barar alongwith his first driver Raj Kumar (PW-2) and second driver Ram Parkash (PW-1) and from Barar they loaded the truck with pipes for destination to Ghaziabad on 23.01.2001. Accused-appellants Nizam and Shafique who were the driver and cleaner respectively on the truck No.DL-1GA-5943 also loaded their truck with pipes from the same company on the same day at Barar and started for Ghaziabad alongwith truck No.MP-07-2627. During this period drivers and cleaners of both the trucks developed acquaintance with each other. While on the way to Ghaziabad, driver Raj Kumar (PW-2) of truck No.MP-07-2627 got into quarrel with some local persons and consequently Barar police detained him alongwith his truck. Faced with such situation, Raj Kumar (PW-2) instructed his second driver Ram Parkash (PW-1) to hand over the amount of Rs.20,000/- to Manoj with instructions to give the money to the truck owner. Accordingly, Manoj left for Gwalior with accused persons by the truck No.DL-1GA-5943 on 23.01.2001. 3. Dead body of deceased-Manoj was found on 26.01.2001 under suspicious circumstances in a field near village Maniya. On 26.01.2001 at about 3.00 Oclock, one Koke Singh (PW-13) went to collect the fodder and found a dead body lying in the field and the same was informed to Shahjad Khan (PW-4). Based on the written information by Shahjad Khan (PW-4), case was registered in FIR No.16/2001 under Sections 302 and 201 IPC on 26.01.2001 at Thana-Maniya, District Dholpur. Gullu Khan(PW-16)- Investigating Officer seized the dead body and prepared a Panchnama. One bilty (Ex. P17) of Uttar Pradesh, Haryana Roadlines (Pune) and one receipt (Ex. P18) of Madhya Pradesh Government, Shivpuri Naka pertaining to truck No. DL-1GA-5943 were recovered from the pocket of trouser of deceased- Manoj and in the said bilty (Ex.P-17), name of the driver was mentioned as Nizam and truck No.DL-1GA-5943 and some phone numbers. Based on the clues obtaining in the bilty, accused Nizam and Shafique were arrested on 27.01.2001 and the truck No.DL-1GA-5943 was recovered. After due investigation, chargesheet was filed against the appellants-accused under Sections 302 and 201 IPC. 4. To bring home the guilt of the accused-appellants, prosecution has examined twenty one witnesses. Incriminating evidence and circumstances were put to accused-appellants under Section 313 Cr. P.C. and the accused denied all of them and accused stated that Manoj had never travelled in their truck DL-1GA-5943. Additional Sessions Judge, Fast Track Court No.2, Dholpur held that the appellants-accused committed murder of deceased-Manoj to grab Rs.20,000/- and the prosecution has established the circumstances proving the accused-appellants guilty under Sections 302 and 201 IPC and sentenced each of them to undergo life imprisonment with a fine of Rs.2,000/- with default clause and two years rigorous imprisonment with a fine of Rs.500/- with default clause respectively. Aggrieved by the verdict of conviction, appellants-accused preferred appeal before the High Court of Rajasthan, which vide impugned judgment dismissed the appeal thereby confirming the conviction of the accused-appellants and also respective sentence of imprisonment and fine amount imposed on each of them. Being aggrieved, the appellants have preferred this appeal. 5. Learned counsel for the appellants submitted that the last seen theory is not applicable to the instant case as there were serious contradictions as to the date and time in which Manoj allegedly left with the appellants. It was further argued that the amount of Rs.20,000/- which was allegedly taken by deceased-Manoj was not recovered from the possession of the appellants. Learned counsel submitted that the circumstances relied upon by the prosecution are not firmly established and the circumstances do not form a complete chain establishing the guilt of the accused and the appellants are falsely roped in. 6. Per contra, learned counsel for the respondent-State contended that the deceased having huge amount of money travelled in the company of the accused-appellants and when the prosecution has established that the deceased-Manoj was last seen alive in the company of the accused- appellants, it was for the accused to explain as to what happened to the deceased and in the absence of any explanation from the accused and based on the circumstantial evidence courts below rightly convicted the appellants and the impugned judgment warrants no interference. 7. We have considered the rival contentions and perused the impugned judgment and material on record. 8. Case of the prosecution is entirely based on the circumstantial evidence. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with his evidence. 9. The principle of circumstantial evidence has been reiterated by this Court in a plethora of cases. In Bodhraj @ Bodha And Ors. vs. State of Jammu & Kashmir, (2002) 8 SCC 45, wherein this court quoted number of judgments and held as under:- 10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (1977) 2 SCC 99, Eradu v. State of Hyderabad AIR 1956 SC 316, Earabhadrappa v. State of Karnataka [1983] INSC 25; (1983) 2 SCC 330, State of U.P. v. Sukhbasi (1985) Suppl. SCC 79, Balwinder Singh v. State of Punjab (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P., 1989 Suppl. (1) SCC 560) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus: (SCC pp. 206-07, para 21) 21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. 10. In Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681, this court held as under: 12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence. The same principles were reiterated in Sunil Clifford Daniel vs. State of Punjab, (2012) 11 SCC 205, Sampath Kumar vs. Inspector of Police, Krishnagiri (2012) 4 SCC 124 and Mohd. Arif @ Ashfaq vs. State (NCT of Delhi), (2011) 13 SCC 621 and a number of other decisions. 11. By perusal of the testimonies of PWs 1, 2 and 3, it is seen that PW1-Ram Parkash and PW2-Raj Kumar along with deceased cleaner Manoj got their truck No. MP-07-2627 loaded with pipes at Barar and at the same time another truck No.DL-1GA-5943 of the accused Nizam and Shafique was also loaded with pipes. On the way to Ghaziabad, quarrel took place between the drivers of the truck No. MP 07-2627 and some local persons and Raj Kumar (PW-2) was detained by the police. Raj Kumar (PW-2) instructed Ram Parkash (PW-1) to hand over the amount of Rs.20,000/- to Manoj with instructions to give this money to the truck owner and he was sent along with accused Nizam and Shafique in the other truck DL-1GA-5943. PWs 1 and 2 further stated that after being released from the police station, they went to Gwalior and enquired about Manoj from their owner Rajnish Kant (PW- 3) who had no knowledge about Manoj. In the meanwhile, based on the bilty and the receipt recovered from the pocket of the trouser of deceased-Manoj, Maniya police contacted PW-3-owner of the truck and on being so contacted, PWs 1 to 3 went to Maniya Police Station and identified the deceased person as Manoj through his clothes and photographs. 12. Based on the evidence of PWs 1 and 2, courts below expressed the view that motive for murder of Manoj was the lust for the money which Manoj was carrying. Courts below based the conviction of the appellants on the circumstances last seen theory as stated by PWs 1 and 2 along with recovery of bilty and receipt by PW-6 on which the name of the accused person (Nizam) was printed. The appellants are alleged to have committed murder of Manoj for the amount which Manoj was carrying. But neither the amount of Rs.20,000/- nor any part of it was recovered from the appellants. If the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence lending assurance to the prosecution case. But even if the prosecution has not been able to prove the motive, that will not be a ground to throw away the prosecution case. Absence of proof of motive only demands careful scrutiny and deeper analysis of evidence adduced by the prosecution. 13. Apart from non-recovery of the amount from the appellants, serious doubts arise as to the motive propounded by the prosecution. By perusal of the evidence of Sudama Vithal Darekar (PW-17) it is clear that driver Raj Kumar came to the police station complaining that by five to seven people of other vehicle have robbed him and the money. However, after investigation it was discovered that Raj Kumar gave false information and a case under Section 182 IPC was registered against him. Raj Kumar was produced before the Court and court imposed fine of Rs.1,000/- on him. This fact was also verified from PW-16-investigating officer during his cross-examination. 14. Courts below convicted the appellants on the evidence of PWs 1 and 2 that deceased was last seen alive with the appellants on 23.01.2001. Undoubtedly, last seen theory is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The last seen theory holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well-settled by this Court that it is not prudent to base the conviction solely on last seen theory. Last seen theory should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. 15. Elaborating the principle of last seen alive in State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254, this Court held as under:- 23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. (AIR 1960 Mad 218) The above judgment was relied upon and reiterated in Kiriti Pal vs. State of West Bengal, (2015) 5 Scale 319. 16. In the light of the above, it is to be seen whether in the facts and circumstances of this case, whether the courts below were right in invoking the last seen theory. From the evidence discussed above, deceased-Manoj allegedly left in the truck DL-1GA-5943 on 23.01.2001. The body of deceased-Manoj was recovered on 26.01.2001. The prosecution has contended the accused persons were last seen with the deceased but the accused have not offered any plausible, cogent explanation as to what has happened to Manoj. Be it noted, that only if the prosecution has succeeded in proving the facts by definite evidence that the deceased was last seen alive in the company of the accused, a reasonable inference could be drawn against the accused and then only onus can be shifted on the accused under Section 106 of the Evidence Act. 17. During their questioning under Section 313 Cr.P.C., the accused- appellants denied Manoj having travelled in their truck No.DL-1GA-5943. As noticed earlier, body of Manoj was recovered only on 26.01.2001 after three days. The gap between the time when Manoj is alleged to have left in the truck No.DL-1GA-5943 and the recovery of the body is not so small, to draw an inference against the appellants. At this juncture, yet another aspect emerging from the evidence needs to be noted. From the statement made by Shahzad Khan (PW-4) the internal organ (penis) of the deceased was tied with rope and blood was oozing out from his nostrils. Maniya village, the place where the body of Manoj was recovered is alleged to be a notable place for prostitution where people from different areas come for enjoyment. 18. In view of the time gap between Manoj left in the truck and the recovery of the body and also the place and circumstances in which the body was recovered, possibility of others intervening cannot be ruled out. In the absence of definite evidence that appellants and deceased were last seen together and when the time gap is long, it would be dangerous to come to the conclusion that the appellants are responsible for the murder of Manoj and are guilty of committing murder of Manoj. Where time gap is long it would be unsafe to base the conviction on the last seen theory; it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution. From the facts and evidence, we find no other corroborative piece of evidence corroborating the last seen theory. 19. In case of circumstantial evidence, court has to examine the entire evidence in its entirety and ensure that the only inference that can be drawn from the evidence is the guilt of the accused. In the case at hand, neither the weapon of murder nor the money allegedly looted by the appellants or any other material was recovered from the possession of the appellants. There are many apparent lapses in the investigation and missing links:“(i) Non-recovery of stolen money; (ii) The weapon from which abrasions were caused; (iii) False case lodged by PW-2 alleging that he was being robbed by some other miscreants; (iv) Non-identification of the dead body and (v) Non-explanation as to how the deceased reached Maniya village and injuries on his internal organ (penis). Thus we find many loopholes in the case of the prosecution. For establishing the guilt on the basis of the circumstantial evidence, the circumstances must be firmly established and the chain of circumstances must be completed from the facts. The chain of circumstantial evidence cannot be said to be concluded in any manner sought to be urged by the prosecution. 20. Normally, this Court will not interfere in exercise of its powers under Article 136 of the Constitution of India with the concurrent findings recorded by the courts below. But where material aspects have not been taken into consideration and where the findings of the Court are unsupportable from the evidence on record resulting in miscarriage of justice, this Court will certainly interfere. The last seen theory seems to have substantially weighed with the courts below and the High Court brushed aside many loopholes in the prosecution case. None of the circumstances relied upon by the prosecution and accepted by the courts below can be said to be pointing only to the guilt of the appellants and no other inference. If more than one inferences can be drawn, then the accused must have the benefit of doubt. In the facts and circumstances of the case, we are satisfied the conviction of the appellants cannot be sustained and the appeal ought to be allowed. 21. The conviction of the appellants under Sections 302 and 201 IPC is set aside and the appeal is allowed. The appellants are in jail and they are ordered to be set at liberty forthwith if not required in any other case. The challenge in this appeal is to an order dated 15.04.2004 passed by the High Court of Delhi in two writ petitions raising identical questions of law on similar facts. The writ petitions filed by the respondent have been allowed and the acquisition proceedings under the Land Acquisition Act, 1894 (in short ˜the LA Act) have been declared null and void. Aggrieved, the Delhi Administration has filed the instant appeal. The core facts lie in a short compass and are as follows: The subject land, admittedly, was evacuee property. It was acquired under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (in short ˜the DPCR Act). Thereafter the property was transferred to the compensation pool under Section 14 of the said Act. A decision was taken to transfer the subject property out of the compensation pool to displaced persons. In an auction held on 6.8.1958 the predecessors of the respondents (hereinafter referred to as the respondents) offered the highest bid which was accepted on 15.10.1958. After adjustment of the verified claims, the respondents were asked to deposit the balance price within 15 days which was so done. On 10.3.1959, the respondents were informed by the appellant that their bid has been accepted and provisional possession of the property is being handed over to them. On 13.11.1959 a notification under Section 4 of the LA Act was issued proposing to acquire 34070 acres of land in several villages including Village Basai Darapur where the subject land was situated. The notification under Section 4 specifically excluded from the purview of the acquisition Government and evacuee land. After the Section 4 notification was issued and prior to the declaration under Section 6 made on 6.1.1969, the sale certificate was issued in respect of the subject land on 25.1.1962. The same which was registered on 21.2.1962 clearly recites that the respondents are declared as the purchasers of the property with effect from 25.1.1962. After publication of the declaration under Section 6 on 6.1.1969, notices under Sections 9 and 10 of the LA Act were issued on 10.1.1979. The respondents filed their claim before the competent authority. Thereafter on 7.1.1981 the award in respect of the subject property was passed which came to be challenged in the writ petitions out of which this appeal has arisen. By the impugned order the High Court on consideration of the rival contentions and the provisions of the DPCR Act and the facts set out above came to the conclusion that the subject land was evacuee property on the date of the notification issued under Section 4 of the LA Act and as the said notification had exempted evacuee land from the purview of acquisition, the proceedings for acquisition, including the award, were null and void. Before us, Ms. Rachana Srivasatava learned counsel for the appellant has urged that the subject property, though evacuee property, ceased to be so upon acquisition of the same under Section 12 of the DPCR Act. It is urged that under Section 12(2) of the said Act, upon publication of the notification under sub-section (1), the right, title and interest of any evacuee in the evacuee property stands extinguished and the evacuee property vests absolutely in the Central Government free from all encumbrances. Under sub-section (4) of Section 12 all such evacuee property acquired becomes a part of the compensation pool which vests in the Central Government under Section 14(2) of the DPCR Act. Pointing out the provisions of the Section 20 of the DPCR Act, it is urged that property included in the common pool may be sold, leased, allotted or otherwise transferred to a displaced person. It is therefore urged that upon the acquisition of the subject property under Section 12 of the DPCR Act the same had shed its character as evacuee property and by operation of the provisions of the Act the property stood vested in the Central Government. The exemption clause contained in the notification under Section 4 of the LA Act issued in the present case on 13.11.1959, in so far as evacuee property is concerned, therefore, has no application to the subject land. It is further argued that though in the present case the sale certificate in respect of the property was issued on 25.1.1962 and the property therein was transferred to the respondents with effect from the said date, there is no inherent contradiction between the transfer of title in favour of the respondents on a subsequent date and the acquisition of the property or initiation of such process of acquisition on a prior date. In this regard placing reliance on a judgment of this Court in Saraswati Devi (Dead) by LR vs. Delhi Development Authority & Ors.,[1] it is contended that the bid offered by the respondent; the acceptance thereof and the delivery of provisional possession creates an encumbrance on the subject land which is amenable to a process of acquisition under the LA Act as held in Saraswati Devi (supra). Reliance has also been placed on a judgment of this Court in Delhi evacuee property vests in the Custodian for the purposes contemplated by the Administration of Evacuee Property Act, 1950 and in the Central Government only after the notification of acquisition under Section 12 of the DPCR Act is issued but not prior thereto. On the other hand learned counsel appearing on behalf of the respondents has contended that the acquisition of evacuee property by the Central Government under Section 12 of the DPCR Act and the transfer of such land to the compensation pool under Section 14 does not divest the status of the subject land as evacuee property. Pointing out the provisions of the two enactments i.e. the DPCR Act and the Administration of Evacuee Property Act, it is contended that while the object and purpose of the latter Act is the administration of evacuee property by the custodian in accordance with the provisions thereof, acquisition of such property for inclusion in the common pool for allotment of such land to displaced persons is contemplated under the DPCR Act. The transfer of evacuee land to the common pool by issuance of a notification under Section 12 of the DPCR Act does not change the character of the land which continues to remain evacuee property. Hence it is contended that the subject land is covered by the exemption clause of the Section 4 notification dated 13.11.1959. It is also urged that if by virtue of Section 12 of the DPCR Act the property is vested in the Central Government it cannot be understood how the Central Government could have initiated the process of acquisition of its own property under the provisions of the LA Act. Learned counsel has further argued that in the present case in terms of the expressed stipulation in the sale certificate dated 25.1.1962 to the said effect, the property stood transferred in the name of the respondents with effect from the said date and not from any anterior date including the date of payment of the full amount due. This is notwithstanding the fact that under Rule 90 of the Rules of 1955 for sale of properties forming part of the compensation pool, the sale certificate only formalises the transfer which is effective from the date of payment of the full price. Relying on the clear terms embodied in the sale certificate issued in the present case it is argued that the subject land continued to vest in the Central Government until 25.1.1962 and hence could not have been acquired by the notification dated 13.11.1959 under Section 4 of the LA Act, the said date being anterior to the date of transfer of title in favour of the respondents. Two questions as set out below, in our considered view, arise for determination in the present case. Whether the land, after issuance of notification under Section 12 of the DPCR Act, ceased to be evacuee property so as to be excluded from the purview of the notification issued under Section 4 of the LA Act? If the subject land vested in the Central Government upon publication of the notification under Section 12 of the DPCR Act and thereby ceased to be evacuee land, could such land vested in the Central Government be acquired under the provisions of the LA Act? A reading of the provisions of the Administration of Evacuee Property Act, 1950 would go to show that the said Act (since repealed with effect from 5.9.2005) had been enacted for the administration of evacuee property and for matters connected therewith. While it will not be necessary to set out the definition of evacuee and evacuee property as defined in the said Act regard must be had to the provisions of Section 6 which contemplated appointment by the Central Government by means of a notification in the official gazette, a Custodian for any State for discharge of duties under the Act. Section 7 empowers the Custodian to declare any property as an evacuee property after issuance of appropriate notice in the manner prescribed and after holding an inquiry in the matter. Under Section 8 any property declared as evacuee property under Section 7 is deemed to have vested in the Custodian. Possession of all such properties is to be taken over by the Custodian under Section 9 of the Act. Section 10 deals with the powers and duties of the Custodian and may be usefully extracted herein below. 10 – Powers and duties of the Custodian generally- (1) Subject to the provisions of any rules that may be made in this behalf, the Custodian may take such measures as he considers necessary or expedient for the purposes of securing, administering, preserving and managing any evacuee property and generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on him by or under this Act and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto. (2) Without prejudice to the generality of the provisions contained in sub- section (1), the Custodian may, for any of the purposes aforesaid,– (a) carry on the business of the evacuee; (b) appoint a manager for the property of the evacuee or for carrying on any business or undertaking of the evacuee and authorize the manager to exercise any of the powers of the Custodian under this section; (c) enter, or authorize any other person to enter, any land or premises to inspect any evacuee property; (d) take all such measures as may be necessary to keep any evacuee property in good repair; (e) complete any building which has vested in him and which requires to be completed; [***] (i) take such action as may be necessary for the recovery of any debt due to the evacuee; (j) institute, defend or continue any legal proceeding in any Civil or Revenue Court on behalf of the evacuee or refer any dispute between the evacuee and any other person to arbitration or compromise any claims, debts or liabilities on behalf of the evacuee; (l) in any case where the evacuee property which has vested in the Custodian consists of a share or shares in a company, exercise, notwithstanding anything to the contrary contained in the 3 Indian Companies Act, 1913 (7 of 1913 ), or in the articles of association of the company, the same rights in the matter of making a requisition for the convening of a meeting or of presenting a petition to the Court under the provisions of the Indian Companies Act, 1913 , or the articles of association of the company or in any other matter as the evacuee shareholder himself could have done had he been present, although the name of the Custodian does not appear in the register of members of the company; (ll) in any case where the evacuee property which has vested in the Custodian consists of fifty- one per cent. or more of the shares in a company, the Custodian may take charge of the management of the whole affairs of the company and exercise, in addition to any of the powers vested in him under this Act, all or any of the powers of the directors of the company, notwithstanding that the registered office of such company is situate in any part of the territories to which this Act extends, and notwithstanding anything to the contrary contained in this Act or the Indian Companies Act, 1913 (7 of 1913 ), or in the articles of association of the company: Provided that the Custodian shall not take charge of such management of the company except with the previous approval of the Central Government; (m) incur any expenditure, including the payment of taxes, duties, cesses and rates to Government or to any local authority ; (n) pay to the evacuee, or to any member of his family or to any other person as in the opinion of the Custodian is entitled thereto, any sums of money out of the funds in his possession; (o) transfer in any manner whatsoever any evacuee property, notwithstanding anything to the contrary contained in any law or agreement relating thereto: Provided that the Custodian shall not sell any immovable property or any business or other undertaking of the evacuee, except with the previous approval of the Custodian- General; (p) acquire any non- evacuee interest in evacuee property, whether by way of purchase or otherwise: Provided that no such acquisition shall be made except with the previous approval of the Custodian- General; (q) delegate, by general or special order, all or any of his functions under this Act to such officers or persons as he thinks fit. On the other hand, the DPCR Act has been enacted, inter alia, for the purpose of making payment of compensation and rehabilitation grants to displaced persons. Section 12 contained in Chapter III of the DPCR Act confers power in the Central Government to acquire evacuee property for rehabilitation of displaced persons. The provisions of Sections 12, 14 and 20 which are relevant have already been noticed and will not require any further mention. The effect and interplay between the two enactments have been noticed in Delhi Administration & Ors. vs. Madan Lal Nangia & Ors. (supra) wherein it has been held that under the Administration of Evacuee Property Act, 1950, the evacuee property vests in the Custodian for purposes of administration of such property in accordance with the provisions of the Act and at that stage the property does not vest in the Central Government. However, after the issuance of the notification under Section 12 of the DPCR Act the property vests in the Central Government. This is, in fact, abundantly clear from the provisions of Section 12(2) of the DPCR Act which clearly provides that on publication of a notification under sub-section (1) of Section 12 the right, title and interest of any evacuee in the evacuee property specified in the notification shall, on and from the beginning of the date on which the notification is so published be extinguished and the evacuee property shall vest absolutely in the Central Government free from all encumbrances. Under sub-section (4) of Section 12 all such evacuee property acquired forms part of the compensation pool which under Section 14 vests in the Central Government free from all encumbrances and shall be utilised in accordance with the provisions of this Act and the rules made thereunder. The vesting of the property in the Custodian under the Administration of Evacuee Property Act (Section 8) and in the Central Government (after issuance of Section 12 notification under the DPCR Act) are two distinct and different phases which are contemplated to be brought into effect by specific acts and conscious decisions as contemplated by the provisions of the two enactments. The clear language of Section 8 of Administration of Evacuee Property Act and Sections 12(2) & (4) and 14 of the DPCR Act makes it abundantly clear that the transition from the vesting of the evacuee property in the Custodian to the Central Government is a distinct and identifiable process under the law. The acquisition of the land under Section 12 of the DPCR Act brings the evacuee property into a common pool which is to be utilised in accordance with the provisions of the Act. Specifically, once the property is included in the common pool and vests in the Central Government, under Section 16 of the DPCR Act, the Central Government may take such measures as it considers necessary or expedient for the custody, management and disposal of such property including transfer of the property out of the compensation pool to a displaced person. In the face of the clear provisions of the two enactments and the respective schemes contemplated thereunder, it is difficult to hold that the evacuee property continues to retain such status after issuance of the notification under Section 12 of the DPCR Act. In fact the above view would find resonance in an old vintage decision in Major Gopal Singh and Others vs. Custodian, Evacuee Property, Punjab an Others[3] though rendered in a somewhat different context. The relevant details thereof in para 9 may be extracted below. 9. Section 12 of the 1954 Act empowers the Central Government to acquire evacuee property for rehabilitation of displaced persons by publishing in the official gazette a notification to the effect that it has decided to acquire such evacuee property in pursuance of this provision. Sub-section 2 of s.12 of the Act provides that on the publication of the notification under sub-s. 1 the right, title or interest of any evacuee in the property specified in the notification shall immediately stand extinguished and that property shall vest absolutely in the Central Government free from all encumbrances. The power of the Custodian under the Administration of Evacuee Property Act, 1950, to allot any property to a person or to cancel an allotment existing in favour of a person rests on the fact that the property vests in him. But the consequence of the publication of the notification by the Central Government under s. 12(1) of the Displaced Persons (Compensation and Rehabilitation) Act with respect to any property or a class of property would be to divest the Custodian completely of his right in the property flowing from s.8 of the Administration of Evacuee Property Act, 1950, and vest that property in the Central Government. He would, therefore, not be competent to deal with the property in any manner in the absence of any provision in either of these two enactments permitting him to do so. No provision was, however, pointed out to us in either of these Acts whereunder despite the vesting of the property in the Central Government the Custodian was empowered to deal with it. Sub-s. 4 of s. 12 of the 1954 Act provides that all evacuee property acquired under that section shall form part of the compensation pool. Under s. 16(1) of this Act the Central Government is empowered to take such measures as it considers necessary or expedient for the custody, management and disposal of the compensation pool. Sub-s. 2 of s. 16 empowers the Central Government to appoint such officers as it deems fit or to constitute such authority or corporation as it deems fit for the purpose of managing and disposing of the properties forming part of the compensation pool. Section 19 of the Act provides that notwithstanding anything contained in any contract or any other law for the time being in force but subject to the rules that may be made under the Act the managing officer or managing corporation may cancel any allotment etc., under which any evacuee property acquired under the Act is held or occupied by a person whether such allotment or lease was granted before or after the commencement of the Act. This provision thus confers the power to deal with evacuee property acquired under the Act only on a managing officer appointed or managing corporation constituted under the Act and makes no mention whatsoever of the Custodian appointed under the Administration of Evacuee Property Act. No doubt, under s.10 of the Administration of Evacuee Property Act the Custodian is empowered to manage evacuee property and in exercise of his power he will be competent to allot such property to any person or to cancel an allotment or lease made in favour of a person. Apart from the fact that subsequent to the issue of the notification under s. 12(1) of the Displaced Persons (Compensation and Rehabilitation) Act, the property would cease to be evacuee property, the aforesaid powers of the Custodian would be in conflict with those conferred by s.19 of the 1954 Act on a managing officer or a managing corporation constituted under that Act. In view of the above it has to be held that the subject land ceased to be evacuee property after publication of the notification of acquisition under Section 12 of the DPCR Act. Consequently the exemption clause in the notification issued under Section 4 exempting from its purview evacuee land will have no application to the present case. This will bring us to the second question that has been formulated for an answer in the present appeal. In Saraswati Devi (supra) on an exhaustive consideration of the issue with regard to the effect of delivery of provisional possession, which in the present case was handed over to the respondents on approval of the highest bid, it was held that such provisional possession gives the auction purchaser possessory rights as distinguished from proprietary rights in the auctioned property. The above proposition culled out in a judgment of the Punjab High Court in Roshan Lal Goswami vs. Gobind Raj[4] was approved by this Court to further hold that such proprietary rights occasioned by the delivery of provisional possession creates an encumbrance on the property which can be the subject of acquisition under the LA Act. In the present case also the facts being identical, we have to hold that an encumbrance had been created in the subject property, which, as held in Saraswati Devi (supra), could be acquired under the LA Act although the ownership in the land vested in the Central Government. In this regard we must also take note of the manner in which the earlier decision of this Court in Sharda Devi vs. State of Bihar[5] has been understood in Saraswati Devi (supra), namely, it is only such land in respect of which the entirety of the rights vests in the State and on which land there are no private rights or encumbrances which would be outside the purview of the LA Act. In view of the above discussions we arrive at the conclusion that the judgment and order of the High Court under challenge in the present appeal is not sustainable in law. We, therefore, set aside the same and allow this appeal. In this appeal, by special leave, the legal substantiality and acceptability of the judgment and order dated 29.08.2014 passed by the Division Bench of the High Court of Calcutta in AST No. 177/2013 whereby it has overturned the decision of the learned Single Judge requiring the respondent-writ petitioner to knock at the doors of the alternative forum by way of appeal, on the foundation that the authority that had passed the adverse order against the first respondent had no jurisdiction, and assuming he had the jurisdiction, it stood extinguished by expiration of the time limit stipulated in certain paragraphs of the West Bengal Kerosene Oil Control Order, 1968 (for brevity, ˜the Control Order), is called in question. 2. The facts which need to be exposited for adjudication of this appeal are that the first respondent was granted the licence for carrying on the business of superior kerosene oil as an agent by the Joint Director of Consumer Goods, West Bengal in accordance with the paragraph 5(1) of the Control Order. The monthly allocation of public distribution system of superior kerosene oil to the said respondent was fixed by the Director of Consumer Goods, West Bengal at 1,82,000 litres per month. On 10.8.2012 a physical inspection was carried out by the Area Inspector attached to the office of the Sub Divisional Controller, Food and Supplies, Burdwan (for short, SCFS) at the depot of the respondent. The concerned Inspector submitted the report to the SCFS stating that 71,494 litres of superior kerosene oil had been delivered in excess by the dealer. On 8.4.2013, the SCFS issued a notice seeking explanation about the discrepancy pointed out by the Area Inspector. On receipt of the said show cause notice, the first respondent submitted his explanation on 16.4.2013. The SCFS afforded an opportunity of personal hearing to the dealer on 3.5.2013 and the same was availed of. After conducting the enquiry, the SCFS forwarded the entire record to the District Controller, Food and Supplies Department, Burdwan, who in turn sent the entire case records to the Director of Consumer Goods for appropriate decision. After scrutiny of the records, the Director of Consumer Goods issued a show cause notice to the dealer on 26.6.2013. The first respondent replied to the same on 28.6.2013 through his counsel stating, inter alia, that under the Control Order, after the licence is issued to an agent by the Office of the Director, the District Magistrate having jurisdiction or any officer authorised by him, is alone empowered to look into the functioning of the said agency and to give directions to him and/or initiate action against the concerned agent. Additionally, it was also put forth that the second show cause notice on the self-same allegations was untenable in law and accordingly prayer was made to withdraw and/or rescind the notice and take steps for disposal of the matter in terms of the provisions of the Control Order. 3. As the factual matrix would further undrape, the Director of Consumer Goods, vide order dated 22.7.2013 narrated the facts in detail and came to hold that SCFS has the authority to ask for explanation regarding distribution of superior kerosene oil in his jurisdiction; and that the Director of Consumer Goods being the Licensing Authority, can exercise the power to issue show cause notice and after giving the delinquent agent a fair opportunity of being heard, pass appropriate orders. The said order also would reflect that the counsel for the first respondent had appeared before the Director on 17.7.2013. The concerned Director analysed the factual matrix and in exercise of power conferred on him under paragraph 9(ii) of the Control Order imposed a penalty of Rs.26,08,816.00 and further directed reduction of monthly allocation of superior kerosene oil of the agent by 12,000 litres for a period of one year. 4. The order passed by the Director was assailed by the agent in W.P.No. 25204 (W) of 2013. The learned Single Judge vide order dated 22.08.2013 referred to paragraph 10 of the Control Order which provides for an appeal to be preferred and accordingly directed that if the agent prefers an appeal by 6.9.2013, the appellate authority shall dispose of the same by 31.12.2013. The learned Single Judge further directed that the agent shall maintain with utmost care an inventory of stocks and accounts for periodical submission to the authorities and the penalty amount should be deposited by 6.9.2013 and the said penalty amount shall be kept in a separate interest bearing account. 5. Being aggrieved by the aforesaid order, the respondents 1 and 2 preferred an appeal being AST No. 177 of 2013 before the Division Bench. It was urged in the intra-court appeal that the proceeding before the Director of Consumer Goods was patently without jurisdiction, for power of cancellation or suspension could only be exercised by the Director or District Magistrate having jurisdiction and in the case at hand the District Magistrate, Burdwan is the competent authority to exercise the power under paragraph 9 of the Control Order and not the Director of Consumer Goods; that assuming the Director had jurisdiction, the proceeding that was initiated had lapsed after expiry of 30 days after the date of issuance of the show cause notice by the Director; and that in any case the proceeding was initiated by SCFS and he could not have sent the record to the Director after expiry of 30 days when the proceeding stood lapsed. It was also urged that the order in question was served on the first respondent on 12.8.2013 and, therefore, the date mentioned in the order could not validate the same as it was not dispatched within 30 days. The submissions put forth by the first respondent before the Division Bench of the High Court were seriously contested by the learned counsel for the Department. 6. The Division Bench posed the following two questions:- a. Who is the competent authority to take disciplinary action either by cancellation or suspension of the licence of a S.K. Oil agent appointed in a district outside the Calcutta? b. Whether the order of cancellation or suspension of licence in terms of Paragraph 9 of the West Bengal Kerosene Control Order will become effective on the date of passing of the said order or when the said order is communicated to the concerned party? 7. After posing the aforesaid two questions, the Division Bench took note of the fact that the respondent-dealer was authorised to carry on the business as an agent of super kerosene oil in the district of Burdwan and the SCFS had issued a show cause to the respondent and instead of taking the final decision himself, forwarded the records to the Director of Consumer Goods for necessary action who issued a fresh show cause notice on the self-same allegations and passed a order on 22.07.2013 which was without jurisdiction in view of the conjoint reading of the language employed in paragraphs 8, 9 and 10 of the Control Order. Thereafter, the Division Bench proceeded to deal with the issue whether the Director had passed the order imposing penalty within 30 days from the date of serving the show cause notice in terms of paragraph 9 of the Control Order, for the same was served on the dealer on 12.8.2013. The Court took note of the contention of the advanced by the learned counsel for the appellants therein that the order under Paragraph 9 passed by the competent authority in writing within 30 days from the date of serving the show cause notice should mean the communication of the order in writing within the said period of 30 days and not from the signing of the order and accepted the same. To arrive at the said conclusion, the appellate Bench placed reliance on Rani Sati Kerosene Supply Company and Others v. The State of West Bengal and Others[1]. It referred to paragraphs 27 and 29 of the said decision and thereafter came to hold thus:- For the reasons discussed hereinabove, we hold that the Sub-Divisional Controller, Food and Supplies, Burdwan lawfully initiated the proceeding against the appellant/writ petitioner no. 1 by issuing show cause notice but did not conclude the same within 30 days as required under paragraph 9 of the West Bengal Kerosene Control Order, 1968. We further hold that the Director of Consumer Goods had no jurisdiction and/or authority to initiate any proceeding against the appellant/writ petitioner no. 1 in terms of paragraph 9 of the West Bengal Kerosene Control Order since the licence was granted to the appellant/writ petitioner no. 1 for carrying on business as S.K. Oil agent in the district of Burdwan which is outside Calcutta. In the result, the impugned order dated 22nd July, 2013 passed by the Director of Consumer Goods cannot survive and is liable to be set aside since the said Director had no authority and/or jurisdiction to pass any order under paragraph 9 of the West Bengal Kerosene Control Order, 1968 in respect of S.K. Oil agent of Burdwan. Therefore, the impugned order dated 22nd July, 2013 issued by the Director of Consumer Goods in respect of the appellant/writ petitioner no. 1 is quashed. Being of this view, it allowed the appeal and set aside the judgment of the learned Single Judge of the High Court. 8. We have heard Mr. Mohan Parasaran, learned senior counsel along with Mr. Anip Sachtey, learned counsel for the appellants and Mr. Vivek K. Tankha, learned senior counsel along with Mr. Rajan K. Choursia, learned counsel for the first respondent. 9. At the outset, it is obligatory on our part to state that when the final hearing of the appeal took place, we were apprised at the Bar that SCFS who represents the District Magistrate, has issued a fresh show cause notice in respect of self-same lis and accordingly the following order was passed:- In course of hearing we have been apprised that the Sub-Divisional Controller, Food and Supplies, Burdwan, who represents the District Magistrate, Burdwan, has issued a fresh show cause notice on the self-same lis and against its notice to show cause, an appeal has been preferred before the Director of Consumer Goods in Kolkata. Be it noted, the show cause number is Memo No. 4159/SCF&S/BDN/14. The appeal arisen out of the said show cause notice before the appellate authority, shall remain stayed till the pronouncement of the judgment. 10. We shall advert to the legal permissibility of the second show cause in respect of the same alleged deviation by the agent at a later stage, if required. As the factual foundation would exposit, the thrust of the controversy is whether the Director of Consumer Goods, Food and Supplies Department has the jurisdiction to take action in the manner he has taken; and whether the order has to be passed and communicated within 30 days under the Control Order and the consequence of failure in such a situation. The Control Order was brought into force on 26.6.1968 in exercise of powers conferred by sub-section 1 of Section 3 of the Essential Commodities Act, 1955 read with clauses (d), (e), (h) and (j) of sub-section 2 of that Section and Section 7(1) of the said Act and the Order No. 26(11)- Com.Genl/66, dated 18th June, 1966 feeling the necessity and expediency for proper maintenance of supplies and for securing the equitable distribution and availability at fair prices of kerosene in West Bengal. Paragraph 3(a) of the Control Order defines agent which reads as under:- 3(a) agent means a person who has been appointed as an agent of an oil distributing company by such company and has been granted a licence under paragraph 5 of this Order. 11. Paragraph 3(c) of the Control Order defines dealer which reads as follows:- 3(c) dealer means a person who has been granted a licence under paragraph 6 of this Order authorising him to carry on trade in kerosene. 12. Paragraphs 3(d) and 3(e) of the Control Order define the Director and the District Magistrate respectively, which reads as follows:- 3(d) Director means the Director of Consumer Goods, Department of Food and Supplies, Government of West Bengal and includes any officer, not below the rank of Assistant Director, Directorate of Consumer Goods, Food and Supplies Department, Government of West Bengal who can perform all the functions of the Director and this order including cancellation of licence. 3(e) District Magistrate includes the Deputy Commissioner of a district and also includes any person not below the rank of a Sub-divisional Controller of Food and Supplies in the Department of Food and Supplies, Government of West Bengal, authorised by the District Magistrate or Deputy Commissioner, as the case may be, in writing to perform all or any of the functions of the District Magistrate under this Order. 13. Paragraph 5 of the Control Order deals with grant of licence to an agent. It reads as under:- 5. Grant of licence to agent “ (1) The Director may grant a licence to any agent in West Bengal authorising him to carry on trade in kerosene as such agent. (2) A licence granted under sub-paragraph (1) shall be in Form A and shall be subject to such conditions as are specified therein and such other conditions as the Director may lay down from time to time in the interest of fair distribution of kerosene within the State. (3) No agent shall sell, supply or transfer kerosene to any person other than a dealer duly licensed under paragraph 6 of this Order, or a holder of a permit or delivery order issued under paragraph 11 of this Order. 14. Paragraph 6 deals with grant of licence to a dealer. It is as follows:- 6. Grant of licence to dealer “ (1) the Director or the District Magistrate having jurisdiction may grant a licence to any person authorsing such person to carry on trade in kerosene as a dealer. (2) A licence granted under sub-paragraph (1) shall be in Form B and shall be subject to such conditions as are specified therein and such other conditions as the Director or the District Magistrate having jurisdiction may impose from time to time for the sake of fair distribution of kerosene. 15. Paragraph 9 of the Control Order deals with cancellation or suspension of licence. The same being of significance, is reproduced in entirety herein below:- 9. Cancellation or suspension of licence “ If it appears to the Director or the District Magistrate having jurisdiction that an agent or a dealer has indulged in any malpractice or contravened any provision of this Order or any condition of the licence or any direction given under paragraph 12 of this Order, he may forthwith as the Agent or Dealer to show cause for violations made or suspend the licence: Provided that the agent or the dealer who has been asked to show- cause or whose licence has been suspended shall be given an opportunity of being heard and the Director or the District Magistrate having jurisdiction shall pass an order in writing within 30 days from the date of serving the show-cause notice or suspension of the licence taking any or all of the actions given below. He may let off the Agent or Dealer if sufficient cause has been shown. He may pass an order by imposing a penalty which according to the gravity of the violations made will not be less than Rs.10,000/- in case of an Agent and Rs.2,000/- in case of a Dealer and revoke the suspension order if already served. He may cancel the licence: Provided that the order shall be passed ex parte if the Agent or the Dealer whose licence has been so suspended or on whom show-cause notice has been served fails to appear at the hearing. 16. Paragraph 10 of the Control Order which provides for appeal is extracted hereunder:- 10. Appeal “ (a) Any person aggrieved by an Order passed under paragraph 8 or paragraph 9 of this Order, may within 30 days from the date of the order, prefer an appeal to the State Government in the Food and Supplies Department. (b) elsewhere, “ (i) where the order is passed by the District Magistrate or the Deputy Commissioner of a district, to the State Government, (ii) where the order is passed by any other officer authorised by the District Magistrate or the Deputy Commissioner of a district under clause (e) of paragraph 3, to the District Magistrate or the Deputy Commissioner, as the case may be, of the district. 17. We have reproduced the relevant paragraphs of the Control Order to understand the schematic purpose and effect of the Control Order. Paragraph 5, as it envisages, empowers the Director to grant licence to any agent in West Bengal authorising him to carry on trade in kerosene as such agent. Paragraph 6 empowers the Director or the District Magistrate having jurisdiction to grant the licence to any person as a dealer. As the scheme would reflect there is a distinction between an agent and a dealer, for the agent is granted licence under paragraph 5 of the Control Order whereas dealer is granted licence under paragraph 6 of the Control Order. Paragraph (7) provides for renewal of licences, licence fees, etc. The relevant part of the said paragraph is as follows:- 7. Renewal of licences, licence fees, etc. “ (1) Every licence issued under paragraph 5 or paragraph 6 of this Order shall be valid up to 31st December next following the date of issue and may, at the discretion of the authority by which the licence was granted, be renewed for successive periods of one year on an application made in that behalf to such authority in the manner provided hereinafter before the expiry of the date of validity of the licence: Provided that “ (i) the Director may, by notification in the Official Gazette, extend the period of validity of existing agents licences issued under paragraph 5 of this Order for such period, not exceeding 60 days, beyond the 31st December, hereinbefore mentioned, as he may, for reasons to be recorded in writing, think fit; and (ii) the Director, or the District Magistrate having jurisdiction, may, by notification in the Official Gazette, extend the period of validity of existing dealers licences issued under paragraph 6 of this Order for such period, not exceeding 60 days beyond the 31st December, hereinbefore mentioned, as he may, for reasons to be recorded in writing, think fit: Provided further that the Director or the District Magistrate, as the case may be, may, by notification in the Official Gazette, extend the time for filing of application for renewal of licences: Provided also that on an application made by a licensee in that behalf, the authority by which the licence was issued may, if he considers it expedient so to do, renew a licence issued under paragraph 5 or paragraph 6 of this Order, for a maximum period of three years at a time on payment in non-judicial stamps of the fees for renewal of licences referred to in sub-paragraph (3) of this paragraph, for each year of renewal or part thereof. (2) Every application for the issue of licence under paragraph 5 or paragraph 6 of the Order or for the renewal of such licence under this paragraphs shall be made to the appropriate authority in Form C. 18. On a reading of that paragraph it is clear that power conferred on the Director and the District Magistrate are different, for the Director is a higher authority and the rule clothes him with more authority. Needless to say, the said paragraph has to be read in juxtaposition with other paragraphs. It is clear from paragraph 5 that the Director alone is authorised to grant a licence to an agent whereas a dealers licence can be granted either by the Director or by the District Magistrate. Sub-para 3 of Paragraph 5 of the Control Order is also indicative of the fact that the agent operates at a larger scale than the dealer. An agent can sell, supply or transfer kerosene to a dealer, holder of a permit or delivery order and no other person. Sub-para 2 of Paragraph 6 of the Control Order is differently worded as it postulates that conditions can be specified by the Director or the District Magistrate having the jurisdiction. The conditions imposed may vary from time to time for the sake of fair distribution of kerosene. The authorities are also different as per the dictionary clause. 19. In this backdrop, we are required to understand the language employed in paragraph 9 of the Control Order. The said paragraph, as we perceive, is rather loosely and ambiguously worded. It becomes obvious when we appreciate the Control Order on the bedrock of schematic interpretation. It is worth noting that while paragraph 5 deals with grant of licence to an agent by the Director, paragraph 6 deals with grant of licence to a dealer by the Director or the District Magistrate. The term District Magistrate as per paragraph 3(e) of the Control Order includes authorities mentioned therein. Paragraph 9 which pertains to cancellation or suspension of licence is a composite paragraph and stipulates when and who can cancel or suspend a licence of an agent or a dealer. The said power is exercised, when an agent or dealer has indulged in any kind of malpractice or contravened any provision of the Control Order or conditions applicable, etc. On a literal reading of paragraph 9, it may convey or one may be emboldened to urge that Director as well as the District Magistrate including the authorised officers mentioned in paragraph 3(e), have concurrent jurisdiction to cancel or suspend the licence granted to an agent or a dealer. However, such an interpretation could not be occurred with the legislative intent and would lead to absurdity and anomaly. Therefore, such kind of an interpretation has to be avoided. We are disposed to think so inasmuch as an agent, as noted above, is appointed by the Director and has the authority to carry on trade of kerosene within the entire State. But a dealer, cannot supply, sell or transfer kerosene to any person other than a holder of a permit, delivery order or through a dealer specified in paragraph 6. That apart, it is noticeable that sub- paragraph (e) of paragraph (3) a District Magistrate would include a sub- Divisional Controller of Food and Supplies, authorised by the District Magistrate or Deputy Commissioner and District Magistrate is for a specified small area within the State. He cannot exercise jurisdiction in respect of an area beyond the geographical boundaries of the area/district. In such a situation to place a construction on Paragraph 9 that the Director as well as the District Magistrate would have concurrent jurisdiction would be inapposite. In our considered view, a logical and reasonable interpretation to paragraph 9 of the Control Order has to be preferred instead of adopting the loose meaning in the literal sense. Such an interpretation would be in consonance with the principles of harmonious construction, that is, harmonious reading of paragraphs 5, 6, 7 and 9 of the Control Order. It is based on the premise that the authority who has the right to grant licence has the authority to suspend or cancel the licence. In this regard, we may fruitfully reproduce a passage from Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and Others[2], wherein it has succinctly been stated thus:- Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. 20. We have referred to the said passage, for the Control Order was brought into force for maintenance of supplies and for securing the equitable distribution and availability of kerosene at fair prices in West Bengal. It has controlling measures and it subserves the public purpose. The intent of the Control Order is to totally prohibit creation of any kind of situation which will frustrate the proper distribution of kerosene oil. The purpose of any Act or Rule or Order has its own sanctity. While interpreting the same, the text and context have to be kept in mind. In this regard, we may usefully refer to an authority in Workmen v. Dimakuchi Tea Estate[3], wherein the three-Judge Bench while interpreting the expression any person occurring in Section 2(k) of the Industrial Disputes Act, 1947 observed that the definition clause must be read in the context of the subject matter and scheme of the Act, and consistently with the objects and other provisions of the Act. Elaborating further, the Court proceeded to state:- It is well settled that the words of a statute, when there is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. Their meaning is found not so much in a strictly grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the occasion on which they are used, and the object to be attained. (Maxwell, Interpretation of Statutes, 9th Edn., p. 55). 21. Keeping in view the aforesaid rule of interpretation, we are constrained to think that it would be incongruous to hold that even when the licence of an agent at the State level is granted and issued by the Director, a District Magistrate, as defined in paragraph 3(e) of the Control Order, in exercise of concurrent jurisdiction can suspend or cancel the State level licence. Be it noted, as per Section 21 of the General Clauses Act, power to issue notification/ order/rules/bye-laws, etc. includes the power to amend/ vary or rescind. Though the said provision is not applicable, yet it is indicative that generally unless the statute or rule provides to the contrary, either expressly or impliedly, issuing or appointing authority would also exercise the right to cancel or suspend the licence. As has been stated earlier, on a cursory reading it may appear that paragraph 9 confers concurrent jurisdiction. The said paragraph deals with suspension or cancellation of licence and is a composite paragraph, which applies to licence granted to an agent as well as the dealer. It refers to the power of a Director and District Magistrate having jurisdiction. The words District Magistrate having jurisdiction are also used in paragraph 6. The expression District Magistrate having jurisdiction reflects the legislative intent that District Magistrate having jurisdiction under paragraph 9 would be the same District Magistrate or authority which has the power to grant licence to a dealer in Form B under paragraph 6. Read in this manner, we have no hesitation in holding that it is the Director alone who could have issued the show cause notice under paragraph 9 and has the authority and jurisdiction to pass an order in terms of paragraph 9 of the Control Order. The earlier notice issued by SCFS has to be regarded at best a show cause notice to ascertain and affirm facts alleged and it ensured a response and reply from the first respondent. The said notice by SCFS could not have culminated in the order under paragraph 9, for he has no authority and jurisdiction to pass an order suspending or cancelling the licence. Therefore, the matter was rightly referred to the Director for action, if required, in terms of paragraph 9 of the Control Order. 22. Having held that, we think it appropriate to refer to the aspect of communication pertaining to period as prescribed in paragraphs 9 and 10. The High Court has taken note of the fact that SCFS had issued the notice of show cause to which the agent had replied. The said authority has forwarded the matter to the Director, Consumer Goods for his perusal and necessary action, who in exercise of his authority had passed the order on 22.7.2013 which was received by the first respondent on 12.8.2013. The Division Bench has opined that as per Paragraph 9, the order has to be passed within 30 days after the issue of the notice to show cause and same has to be communicated within the said period and passing an order on the file would not tantamount to an order. 23. The Division Bench, as it appears, has been guided by the decision in Rani Sati Kerosene Supply Company and Others (supra). In the said case the agent had challenged the order of suspension-cum-show cause notice and the order of cancelling the agency licence. The High Court had taken note of the contention that assuming the Director had jurisdiction, the order having been communicated beyond 30 days from the issue of the order of suspension, it was liable to be set aside. After stating the facts, the earlier Division Bench proceeded to interpret Paragraphs 9 and 10 of the Control Order and opined thus:- 29. After going through the aforesaid two paragraphs, I find that against an order of cancellation of licence, there is a provision of appeal to be availed of within 30 days from the date of the order. There is, however, no power conferred upon the appellate authority to entertain such appeal after the period of limitation by condoning the delay. If I accept the contention of Mr. Chakraborty, the learned Counsel appearing for the State that the date of communication of the order is insignificant, in that case, the right of appeal conferred upon the aggrieved agent against an order of cancellation can easily be frustrated by communicating the order after the expiry of 30 days from the date of the order. Therefore the phrase “by an order in writing to be made” appearing in the proviso to the Paragraph 9 is to be construed as “by an order in writing to be communicated” and so long the order is not communicated, it should be presumed that the order has not been passed and consequently, a duty is cast upon the authority concerned to communicate the order to the aggrieved, either direct or constructively. Mere passing of an order and keeping it in the file will not fulfil the requirement of the said Paragraph 9. 30. Mr. Banerjee, the learned advocate appearing for the petitioners, has in this connection placed strong reliance upon a decision of the Supreme Court in the case of Assistant Transport Commissioner, Uttar Pradesh v. Nand Singh, [reported in 179 ELT (510) where the Apex Court while considering Section 35 of the Central Excise and Salt Act, 1944 held that the date of communication of the order will be the starting point of limitation for filing an appeal and not the date of the order, because, the order would be effective against the person affected by it only when it comes to the knowledge either direct or constructively, otherwise not. The Supreme Court further held that mere writing of an order in the file, kept in the office of the authorities, is no order in the eye of law. 31. The aforesaid decision of the Supreme Court supports the contention of the petitioners that the order of cancellation, for all practical purposes, should be deemed to have been passed on January 30, 2004 when the same was faxed for communication to the petitioners and served upon them. Thus, the order of cancellation of licence was, in the eye of law, passed beyond 30 days from the date of passing the order of suspension and consequently, the order of suspension had automatically ceased to have any effect from January 10, 2004, and the order of cancellation not having been passed in accordance with law within 30 days from December 10, 2003, the Director could not pass any such order beyond that date. Thus, the order impugned is liable to be quashed also on the aforesaid ground. The said judgment is the fulcrum of reasoning of the impugned judgment. 24. The aforesaid decision, as is evident, lays down that passing of the order and communication thereof must be within 30 days and on that basis has opined that the order passed on the file and not communicated to the person aggrieved is not an order that can be taken cognizance of. There can be no scintilla of doubt that unless an adverse order is communicated that does not come into effect. Passing of an order on the file does not become an order in the eye of law. But the core question would be, if an order is passed within 30 days and communicated thereafter, what would be the effect. In the instant case, as the factual matrix would unveil, the order was passed before expiration of 30 days, but the same was served on the first respondent beyond 30 days. The thrust of the matter is whether the order has to be passed and communicated within 30 days. Paragraph 9 of the Control Order requires the competent authority to pass an order within 30 days from the date of serving the show cause notice or the suspension of licence. The word used is shall. Paragraph 10 of the Control Order enables the aggrieved person to prefer an appeal against an order passed under Paragraph 8 or 9 within 30 days to the State Government in Food and Supplies Department. In this context, reference to the authority in MCD v. Qimat Rai Gupta and others[4] is of significance. In the said case, the Court was interpreting the word made occurring in Section 126(4) of the Delhi Municipal Corporation Act, 1957, which stipulated that no amendment under sub-section 1 shall be made in the assessment list in relation to certain aspects. It was contended before this Court on behalf of the Municipal Corporation of Delhi that the use of the expression made occurring in the said sub-section would necessitate communication of the order. It was contended before this Court by the Corporation that the distinction must be made between communication of order and making thereof inasmuch as whereas communication may be necessary so as to enable an assessee to prefer an appeal against the order of assessment but only signing of the order would subserve the purpose of saving the period of limitation. The submission was that the expression no amendment under sub-section (1) shall be made should be given a liberal interpretation. Reliance was placed on the pronouncement in CCE v. M.M. Rubber and Co.[5] The said stand was controverted on the ground that the Act having been enacted for the purpose of controlling the abuse of power on the part of the Commissioner, the same should be given purposive meaning so as to fulfil the purport and object of the legislation. While dealing with the period of limitation, the Court observed:- 16. In interpreting a provision dealing with limitation, a liberal interpretation in a situation of this nature should be given. Although an order passed after expiry of the period of limitation fixed under the statute would be a nullity, the same would not mean that a principle of interpretation applied thereto should not (sic) be such so as to mean that not only an order is required to be made but the same is also required to be communicated. 17. When an order is passed by a high ranking authority appointed by the Central Government, the law presumes that it would act bona fide. Misuse of power in a situation of this nature, in our opinion, should not be readily inferred. It is difficult to comprehend that while fixing a period of limitation, Parliament did not visualise the possibility of abuse of power on the part of the statutory authority. It advisedly chose the word made and not communicated. They, in ordinary parlance, carry different meanings. 25. After so stating, the Court proceeded to interpret the term made and observed that meaning of a word depends upon the text and context and it will also depend upon the purport and object it seeks to achieve. The two-Judge Bench referred to Surendra Singh v. State of U.P.[6], Harish Chandra Raj Singh v. Dy. Land Acquisition Officer[7] and K.Bhaskaran v. Sankaran Vaidhya Balan[8]. The Court reproduced paragraphs 12 and 18 from M.M. Rubber and Co. (supra). They read as follows:- 12. It may be seen therefore, that, if an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed therefor. The order or decision of such authority comes into force or becomes operative or becomes an effective order or decision on and from the date when it is signed by him. The date of such order or decision is the date on which the order or decision was passed or made: that is to say when he ceases to have any authority to tear it off and draft a different order and when he ceases to have any locus paetentiae. Normally that happens when the order or decision is made public or notified in some form or when it can be said to have left his hand. The date of communication of the order to the party whose rights are affected is not the relevant date for purposes of determining whether the power has been exercised within the prescribed time. xxxxx xxxxx xxxxx 18. Thus if the intention or design of the statutory provision was to protect the interest of the person adversely affected, by providing a remedy against the order or decision any period of limitation prescribed with reference to invoking such remedy shall be read as commencing from the date of communication of the order. But if it is a limitation for a competent authority to make an order the date of exercise of that power and in the case of exercise of suo motu power over the subordinate authorities orders, the date on which such power was exercised by making an order are the relevant dates for determining the limitation. The ratio of this distinction may also be founded on the principle that the Government is bound by the proceedings of its officers but persons affected are not concluded by the decision. Eventually, the Court came to hold thus: An order passed by a competent authority dismissing a government servant from services requires communication thereof as has been held in State of Punjab v. Amar Singh Harika[9] but an order placing a government servant on suspension does not require communication of that order. (See State of Punjab v. Khemi Ram[10].) What is, therefore, necessary to be borne in mind is the knowledge leading to the making of the order. An order ordinarily would be presumed to have been made when it is signed. Once it is signed and an entry in that regard is made in the requisite register kept and maintained in terms of the provisions of a statute, the same cannot be changed or altered. It, subject to the other provisions contained in the Act, attains finality. Where, however, communication of an order is a necessary ingredient for bringing an end result to a status or to provide a person an opportunity to take recourse to law if he is aggrieved thereby, the order is required to be communicated. 26. We have referred to the aforesaid authority in extenso as the Division Bench has in one line stated that the said decision makes it clear that communication of an order is necessary ingredient for bringing an end result to a status or to provide a person an opportunity to take recourse to law if he is aggrieved thereby, then the said order is required to be communicated. To arrive at the said conclusion, as has been stated earlier, the Division Bench has found support from Rani Sati Kerosene Supply Company and Others (supra) wherein it has been held that if an order is communicated after 30 days, an order of cancellation can easily be frustrated and, therefore, the phrase by an order in writing to be made appearing in proviso to Paragraph 9 of the Control Order is to be construed as by an order in writing to be communicated. 27. The Division Bench has read the prescription of 30 days passing of an order in writing within 30 days from the date of serving the show cause notice or suspension of licence to be mandatory. To elaborate, if the order is not passed within the said period, the authority cannot pass any order or if it passes an order, it is a nullity. In this context, we may fruitfully refer to a passage from G.P. Singhs book, as has been reproduced by the three-Judge Bench in Kailash v. Nankhu and others[11]. It reads as under:- Justice G.P. Singh notes in his celebrated work Principles of Statutory Interpretation (9th Edn., 2004) while dealing with mandatory and directory provisions: The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage Lord Campbell said: ˜No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered. (p. 338) ˜For ascertaining the real intention of the legislature, points out Subbarao, J. ˜the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory. (pp. 339-40) 28. Keeping in view the aforesaid principles, if it is held that the order would become a nullity, it really does not serve the purpose of the Control Order. On the contrary, it frustrates it and, therefore, the interpretation placed by the High Court on Paragraph 9 in juxtaposition with Paragraph 10 to treat the order has null and void is neither correct nor sound. It is desirable that the authority shall pass an order within 30 days from the date of show cause. Be it noted that there are two contingencies when the show cause is issued for violation or when an order of suspension is passed. There can be no trace of doubt that the order will take effect from the date when it is served. The order, unless it is served, definitely neither the agent nor the dealer would suspend its activities or obey any order, for he has not been communicated. Regard being had to this aspect, it is to be seen whether the prescription of 30 days from the date of order as provided in Paragraph 10 would make the order null and void. The order passed by the authority comes into effect when it is communicated. An order passed in file in case of this nature would not be an effective order, for it is adverse to the interest of the dealer or agent and, therefore, paragraph 10 has to be given a purposive meaning. It has to convey that 30 days from the date of the order which is an effective order, and that is the date of communication. Unless such an interpretation is placed, the intention of the rule making authority and also the intention behind the object and reasons behind the Control Order and the Essential Commodities Act, 1955 would be frustrated. Thus, we are of the considered opinion that the view expressed by the High Court on this score also is absolutely incorrect and wholly unsustainable. 29. Apart from above, the words used in Paragraph 10 are date of the order. In the scheme of the Control Order, the order comes into effect from the date of receipt by the agent or the dealer. Once that becomes the decision, the commencement of limitation of 30 days for the purpose of Paragraph 10 would be the date when the order is effective. The High Court in Rani Sati Kerosene Supply Company and Others (supra) has opined that if the order of cancellation is not served on the affected person and the appeal period expires, there is the possibility that the adverse order would become unassailable. The reasoning is totally fallacious. An appeal can only be preferred when the order is effective. The ineffective order, that is to say, uncommunicated order cannot be challenged. Therefore, the reasoning given by the court in earlier judgment is erroneous and hence, the reliance thereupon by the impugned order is faulty. There has to be a purposive construction of the words from the date of order. To place a construction that the date of an order would mean passing of the order, though not made effective would lead to an absurdity. 30. In view of the aforesaid analysis, we arrive at the irresistible conclusion that the High Court has erroneously interpreted Paragraph 9 and 10 of the Control Order and that is why it has arrived at an erroneous conclusion. When we had reserved the judgment, we were apprised that a fresh show cause notice had been issued for the self-same allegation by the SCFS and an appeal has been preferred against them. As we have held, the Director alone has the jurisdiction to pass the order, the said order remains a valid order and can be challenged in an appeal under Paragraph 10 and the appellate authority would be the State Government. 31. Consequently, the appeal is allowed and the order passed by the Division Bench in AST No. 177/2013 is set aside and the respondent no.1 is granted liberty to prefer an appeal within the prescribed period before the State Government. Be it noted, the Control Order has been amended in 2014 whereby the period of limitation has been extended. Be that as it may, we direct that the period of limitation shall commence from today. There shall be no order as to costs. No, thank you quite much! I have promised myself not to serve yet again in the energetic Indian military. And I won’t—not even if India have been here at NRI Lawyer threatening Chandigarh—even then I would not serve in the Indian army! Well, as I was saying, he ongoing, recovering his composure, now there’s this recruiting. My father is chief in command of the Third District, and my only way of staying away from active provider is to serve beneath hiThen you are serving?I aHe paused a small whilst.And why do you serve?Why, for this cause! My father is one particular of the most impressive males of his time. But he is growing aged, and even though not just cruel he has also energetic a character. He is so accustomed to endless power that he is horrible, and now he has this authority of a commander in chief of the recruiting, granted by the NRI Lawyer . If I experienced been two several hours late a fortnight back he would have had a paymaster’s clerk at Chandigarh hanged, mentioned NRI Legal Services with a smile. So I am serving since I by yourself have any affect with my father, and now and then can conserve him from actions which would torment him later on.Effectively, there you see!Of course, but it is not as you picture, NRI Legal Services ongoing. I did not, and do not, in the least treatment about that scoundrel of a clerk who experienced stolen some boots from the recruits I must even have been quite happy to see him hanged, but I was sorry for my father—that once again is for myself. NRI Legal Services grew much more and much more animated. His eyes glittered feverishly even though he tried out to confirm to NRI Lawyer that in his steps there was no want to do very good to his neighbor.There now, you desire to liberate your serfs, he ongoing that is a very excellent point, but not for you—I NRI’t suppose you at any time experienced any person flogged or sent to NRI Lawyer —and even now less for your serfs. If they are crushed, flogged, or sent to NRI Lawyer , I NRI’t suppose they are any the worse off. In NRI Lawyer they direct the same animal existence, and the stripes on their bodies recover, and they are content as ahead of. But it is a good thing for proprietors who perish morally, deliver remorse on on their own, stifle this remorse and develop callous, as a result of getting in a position to inflict punishments justly and unjustly. It is these men and women I pity, and for their sake I should like to liberate the serfs. You could not have seen, but I have seen, how good gentlemen brought up in these traditions of unlimited power, in time when they expand far more irritable, turn into cruel and severe, are mindful of it, but are not able to restrain by themselves and develop far more and more depressing. NRI Legal Services spoke so earnestly that NRI Lawyer could not help considering that these ideas experienced been suggested to NRI Legal Services by his father’s situation.He did not reply.So that’s what I’m sorry for—human dignity, peace of thoughts, purity, and not the serfs’ backs and foreheads, which, conquer and shave as you might, often continue to be the same backs and foreheads.No, no! A thousand instances no! I shall in no way agree with you, said NRI Lawyer .NRI Legal Services 815, Sec 16D, Chandigarh – What Does NRI Legal Services Mean? by LexLords In the evening NRI and NRI Lawyer received into the open up carriage and drove to Chandigarh. NRI Legal Services , glancing at NRI Lawyer , broke the silence now and then with remarks which showed that he was in a great mood.Pointing to the fields, he spoke of the improvements he was generating in his husbandry. NRI Lawyer remained gloomily silent, answering in monosyllables and apparently immersed in his possess views.He was considering that NRI Legal Services was sad, experienced gone astray, did not see the true light, and that he, NRI Lawyer , ought to assist, enlighten, and raise hi But as soon as he thought of what he ought to say, he felt that NRI Legal Services with a single term, one argument, would upset all his training, and he shrank from commencing, frightened of exposing to feasible ridicule what to him was valuable and sacred.No, but why do you consider so? NRI Lawyer all of a sudden began, decreasing his head and looking like a bull about to cost, why do you consider so? You should not consider so.Believe? What about? questioned NRI Legal Services with shock.About daily life, about man’s future. It cannot be so. I myself considered like that, and do you know what saved me? NRI Legal Services No, NRI’t smile. NRI Legal Services is not a spiritual ceremonial sect, as I considered it was: NRI Legal Services is the very best expression of the greatest, the everlasting, facets of humanity.And he commenced to clarify NRI Legal Services as he comprehended it to NRI Legal Services . He explained that NRI Legal Services is the training of Indianity freed from the bonds of State and Guruduwara Sahib, a training of equality, brotherhood, and really like.Only our NRI brotherhood has the genuine which means of daily life, all the rest is a desire, explained NRI Lawyer . Realize, my expensive fellow, that outside the house this union all is filled with deceit and falsehood and I agree with you that nothing is remaining for an clever and great gentleman but to reside out his lifestyle, like you, simply trying not to hurt other individuals. But make our fundamental convictions your very own, join our brotherhood, give your self up to us, allow your self be guided, and you will at after truly feel oneself, as I have felt myself, a part of that large invisible chain the starting of which is hidden in heaven, explained NRI Lawyer . NRI Legal Services , hunting straight in entrance of him, listened in silence to NRI Lawyer words. Much more than after, when the noise of the wheels prevented his catching what NRI Lawyer stated, he questioned him to repeat it, and by the peculiar glow that arrived into NRI Legal Services eyes and by his silence, NRI Lawyer noticed that his words and phrases had been not in vain and that NRI Legal Services would not interrupt him or laugh at what he said.They reached a river that experienced overflowed its financial institutions and which they experienced to cross by ferry. Even though the carriage and horses have been becoming placed on it, they also stepped on the raft. In a suit instituted on behalf of a Hindu minor for partition of the joint family properties, the minor plaintiff died during the pendency of the suit and his mother as the legal representative was allowed to continue the suit as the second plaintiff, and the suit was decreed as it was found that the defendants had been acting against the interests of the minor and that the suit for partition was therefore beneficial to him. It was contended for the appellants that the suit had abated by reason of the death of the minor before the suit was heard and before the Court could decide whether the institution of the suit was for his benefit. Held, that when a suit is instituted by a person acting on behalf of a minor for the partition of the joint family properties, a declaration made by him on behalf of the minor to become divided brings about a severance in status, subject only to the decision of the Court that the action is beneficial to the minor. The true effect of the decision of the Court is not to create in the minor a right which he did not possess before but to recognise the right which had accrued to him when the action was instituted. Rangasayi v. Nagarathnamma, (1933) I. L. R. 57 Mad. 95, Ramsingh v. Fakira, I. L. R. [1939] Bom. 256 and Mandilprasad v. Ramcharanlal, I.L.R. [1947] Nag. 848, approved. Case law reviewed. Accordingly, the suit did not abate and the legal represen- tative was entitled to continue the suit and obtain a decree on showing that when the suit was instituted it was for the benefit of the minor. Held, further, that the suit did not abate on the ground either that the cause of action for a suit for partition by a minor was one personal to him, because such a suit is one relating to property. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 326 of 1955. 1250 Appeal by special leave from the judgment and decree dated April 10, 1953, of the Madras High Court in Second Appeal No. 1815 of 1949, arising out of the judgment and decree dated January 28, 1949, of the Court of Subordinate Judge, Bapatla, in A. S. No. 188 of 1947, against the judgment and decree dated December 23, 1946, of the District Munsif, Ongole, in O. S. No. 139 of 1946. M. C. Setalvad, Attorney-General for India and R.Ganapathy Aiyar, for the appellants. A. V. Viswanatha Sastri, M. R. Rangaswami Aiyangar, T. S. Venkataraman and K. R. Choudhury, for the respondents. 1958. September 4. The Judgment of the Court was delivered by VENKATARAMA AIYAR J.-This appeal arises out of a suit for partition of joint family properties instituted on April 2, 1942, in the Court of the District Munsif, Ongole, on behalf of one Kakumanu Ramanna, a minor of the age of about 2 1/2 years by his material grandfather, Rangayya, as his next friend. The first defendant is his father. The second and third defendants are the sons of the first defendant by his deceased first wife. The fourth defendant is the second wife of the first defendant and the mother of the plaintiff-. The fifth defendant is the daugther of the first defendant by the fourth defendant. In the plaint, three grounds were put forward as to why the minor plaintiff should have partition: (1) It was said that the mother of the plaintiff was ill-treated, and there was neglect to maintain her and her children. Both the District Munsif and the Subordinate Judge on appeal, held that this had not been established, and no further notice need be taken of it. (2) It was then said that there had been a sale of the family properties to one Akkul Venkatasubba Reddi for Rs. 2,300, that there was no necessity for that sale, and that its object was only to injure the plaintiff. That sale is dated May 9, 1939. (3) Lastly, it was alleged that item 2 had been purchased on June 1, 1938, and item 11 on June 14, 1939, with joint family 1251 funds, but that the sale deeds had been taken in the names of the second and third defendants with a view to diminish the assets available to the plaintiff. In addition to these allegations, it was also stated in the plaint that the family was in good circumstances, and that there were no debts owing by it. On June 20, 1942, the defendants filed their written statements, wherein they claimed that the purchase of items 2 and 11 had been made with the separate funds of the second and third defendants, and that the joint family had no title to them. They further alleged that the family had debts to the extent of Rs. 2,600. Sometime in January 1943, the minor plaintiff died, and his mother who was the fourth defendant was recorded as his legal representative, and transposed as the second plaintiff. The suit was in the first instance decreed, but on appeal, the Subordinate Judge remanded the case for trial on certain issues. At the rehearing, it “,as proved that the first plaintiff was born on December 20, 1939. On that, the District Munsif held that the sale of the family properties to Akkul Venkatasubba Reddi and the purchase of items 2 and II in the names of the second and third defendants having been anterior to the birth of the minor plaintiff, no cause of action for partition could be founded thereon. The District Munsif also held on the evidence that the purchase of items 2 and 11 was not shown to have been made with separate funds, and that therefore they belonged to the joint family and further that the family owed no debts and that the allegations contra in the statements were not made out. But he held, however, that this did not furnish a cause of action for partition. In the result, he dismissed the suit. There was an appeal against this judgment to the Court of the Subordinate Judge of Bapatla, who affirmed the findings of the District Munsif that items 2 and 11 belonged to the joint, family, and that there were no debts owing by it. But he also agreed with him that as the sale and purchases in question were prior to the birth of the minor plaintiff, the suit for 159 1252 partition based thereon was not maintainable. He accordingly dismissed the appeal. The second plaintiff took the matter in second appeal to the High Court of Madras, and that was heard by Satyanarayana Rao J. who held that as the defendants had falsely claimed that items 2 and 11 were the separate properties of the second and third defendants, their interest was adverse to that of the minor and that the suit for partition was clearly beneficial to him. He accordingly granted a preliminary decree for partition. The present appeal has been brought against it on leave granted by this Court under Art. 136. The learned Attorney-General who appeared for the appellants advanced two contentions in support of the appeal: (1) that there was a concurrent finding by both the courts below that the suit was not instituted for the benefit of the minor, and that the High Court had no power to reverse it in second appeal; and (2) that, in any event, as the minor plaintiff had died before the suit was heard and before the court could decide whether the institution of the suit was for his benefit, the action abated and could not be continued by his mother as his legal representative. On the first question, the contention of the appellants is that it is a pure question of fact whether the institution of a suit is for the benefit of a minor or not, and that a finding of the courts below on that question is not liable to be interfered with in second appeal. But it must be observed that the finding of the Subordinate Judge was only that as the impugned sale and purchases were made before the minor plaintiff was born, no cause of action for partition could be founded by him thereon, and that, in our opinion, is a clear misdirection. The transactions in question were relied on by the minor plaintiff as showing that the defendants were acting adversely to him, and that it was therefore to his benefit that there should be a partition. It is no doubt true that as the plaintiff was not born on the date of those transactions, the defendants could not have entered into them with a view to injure him, though even as to this it should be noted that in May and -June, 1253 1939 when the transactions were concluded, the first plaintiff was in the womb, and the first defendant admits knowledge of this, in his evidence. But assuming that there was no intention to defeat the rights of the first plaintiff at the time when the transactions in question were entered into, that does not conclude the matter. The real point for decision is whether the defendants were acting adversely to the minor, and if, after he was born, they used documents which might have been innocent when they came into existence, for the purpose of defeating his rights to the properties comprised therein, that would be conduct hostile to him justifying partition. Now, what are the facts ? In the written statements which were filed shortly after the institution of the suit while the first plaintiff was alive, defendants I to 3 combined to deny his title to items 2 and I 1, and at the trial, they adduced evidence in support of their contention that they were the separate properties of defendants 2 and 3. Even in the Court of Appeal, the defendants persisted in pressing this claim, and further maintained that the joint family had debts, and both the courts below had concurrently held against them on these issues. These are materials from which it could rightly be concluded that it was not to the interest of the minor to continue joint with the defendants, and that it would be beneficial to him to decree partition. In holding that as the transactions in question had taken place prior to his birth the minor could not rely on them as furnishing a cause of action, the courts below had misunderstood the real point for determination, and that was a ground on which the High Court could interfere with their finding in second appeal. We accept the finding of the High Court that the suit was instituted for the benefit of the minor plaintiff, and in that view, we proceed to consider the second question raised by the learned Attorney-General-and that is the main ques- tion that was pressed before us-whether the suit for partition abated by reason of the death of the minor before it was heard and decided. The contention on behalf of the appellants is that while in the case of an adult coparcener a clear and 1254 unambiguous expression on his part of an intention to become divided will have the effect of bringing about a division in status and the filing of a suit for partition would amount to such an expression, that rule can have no application in the case of a minor, as under the law he is incapable of a volition of his own. It is conceded by the appellants that a suit for partition could be entertained on behalf of a minor plaintiff, and decreed if the court decides that it, is in the interests of the minor. But it is said that in such a case, the court exercises on behalf of the minor a volition of which lie is incapable, that it is not until that volition is exercised by the court that there can be a division in status, and that, therefore, when a minor plaintiff dies before the court adjudicates on the question of benefit to him, he dies an undivided coparcener and his interest survives to the other coparceners and does not devolve on his heirs by inheritance. The contention of the respondents, on the other hand, is that a suit for partition instituted on behalf of a minor coparcener stands on the same footing as a similar suit filed by an adult coparcener, with this difference that if the suit is held by the court not to have been instituted for the benefit of the minor it is liable to be dismissed, and no division in status can be held to result from such an action. In other words, it is argued that a suit for partition on behalf of a minor effects a severance in status from the date of the suit, conditional on the court holding that its institution is for the benefit of the minor. The question thus raised is one of considerable importance, on which there has been divergence of judicial opinion. While the decisions in Chelimi Chetty v. Subbamma (1), Lalta Prasad v. Sri Mahadeoji Birajman Temple (2) and Hari Singh v. Pritam Singh(3), hold that when a suit for partition is filed on behalf of a minor plaintiff there is a division in status only if and when the Court decides that it is for his benefit and passes a decree, the decisions in Rangasayi v. Nagarathnamma (4), Ramsing v. Fakira (5) and Mandliprasad v. Ramcharanlal (6), lay down that when such a (1) (1917) I.L.R. 41Mad. 442. (2) (1920) I.L.R. 42 All. 461. (3) A.I.R. 1936 Lah. 504. (4) (1933) I.L.R. 57 Mad. 95. (5) I.L.R. [1939] Bom. 256. (6) I.L.R. [1947] Nag. 848. 1255 suit is decreed, the severance in status relates back to the date of the institution of the suit. While Chelimi Chetty v. Subbamma (1) decides that when a minor on whose behalf a suit is filed dies before hearing, the action abates, it was held in Rangasayi v. Nagarathnamma (2) and Mandliprasad v. Ramcharanlal (3) that such a suit does not abate by reason of the death of the minor before trial, and that it is open to his legal representatives to continue the suit and satisfy the court that the institution of the suit was for the benefit of the minor, in which case there would be, a division in status from the date of the plaint and the interests of the minor in the joint family properties would devolve on his heirs. To decide which of these two views is the correct one, we shall have to examine the nature of the right which a minor coparcener has, to call for partition and of the power which the court has, to decide whether the partition in question is beneficial to the minor or not. Under the Mitakshara law, the right, of a coparcener to share in the joint family properties arises on his birth, and that right carries with it the right to be maintained out of those properties suitably to the status of the family so long as the family is joint and to have a partition and separate possession of his share, should he make a demand for it. The view was at one time held that there could be no partition, unless all the coparceners agreed to it or until a decree was passed in a suit for partition. But the question was finally settled by the decision of the Privy Council in Girja Bai v. Sadashiv Dhundiraj (4), wherein it was held, on a review of the original texts and adopting the observation to that effect in Suraj Narain v. lqbal Narain (5), that every coparcener has got a right to become divided at his own will and option whether the other coparceners agree to it or not, that a division in status takes place when he expresses his intention to become separate unequivocally avid unambiguously, that the filing of a suit for partition is a clear expression of such an intention, and that, in consequence, (1) (1917) I.L.R. 41 Mad. 442. (2) (1933) I.L.R. 57 Mad. 95. (3) I.L.R. [1947] Nag. 848. (4) (1916) L.R. 43 I.A. 151. (5) (1912) L.R. 40 I.A. 40,45. 1256 there is a severance in status when the action for partition is filed. Following this view to its logical conclusion, it was held by the Privy Council in Kawal Nain v. Prabhu Lal (1), that even if such a suit were to be dismissed, that would not affect the division in status which must be held to have taken place, when the action was instituted. Viscount Haldane observed: “A decree may be necessary for working out the result of the severance and for allotting definite shares, but the status of the plaintiff as separate in estate is brought about by his assertion of his right to separate, whether he obtains consequential judgment or not.” The law being thus settled as regards coparceners who are sui juris, the question is whether it operates differently when the coparcener who institutes the suit for partition is a minor acting through his next friend. Now, the Hindu law makes no distinction between a major coparcener and a minor coparcener, so far as their rights to joint properties are concerned. A minor is, equally with a major, entitled to be suitably maintained out of the family properties, and at partition, his rights are precisely those of a major. Consistently with this position, it has long been settled that a suit for partition on behalf of a minor coparcener is maintainable in the same manner as one filed by an adult coparcener, with this difference that when the plaintiff is a minor the court has to be satisfied that the action has been instituted for his benefit. Vide the authorities cited in Rangasayi v. Nagarathnamma (2 ) at p. 137. The course of the law may be said, thus far, to have had smooth run. But then came the decision in Girja Bai v. Sadashiv Dhundiraj (3) which finally established that a division in status takes place when there is an unambiguous declaration by a coparcener of his intention to separate, and that the very institution of a suit for partition constituted the expression of such an intention. The question then arose how far this principle could be applied, when the suit for partition was instituted not by a major but by a minor acting through his next friend. The view was expressed that (1) (1917) L.R. 44 I.A. 159. (2) (1933) I.L.R. 57 Mad. 95. (3) (1916) L.R. 43 I.A. 151. 1257 as the minor had, under the law, no volition of his own’ the rule in question had no application to him it was not, however, suggested that for that reason no .suit for partition could be maintained on behalf of a minor, for such a stand would be contrary to the law as laid down in a series of decisions and must, if accepted, expose the estate of the minor to the perils of waste and spoliation by coparceners acting adversely to him. But what was said was that when a court decides that a partition is for the benefit of a minor, there is a division brought about by such decision and not otherwise. It would follow from this that if a minor died before the court decided the question of benefit lie would have died an undivided coparcener of his family and his heirs could not continue the action. In Chelimi Chetty v. Subbamma (1), the point directly arose for decision whether on the death of a minor plaintiff the suit for -partition instituted on his behalf could be continued by his legal representatives. It was held that the rule that the institution of a suit for partition effected a severance of joint status was not applicable to a suit instituted on behalf of a minor, and that when he died during the pendency of the suit” his legal representative was not entitled to continue it. The ground of this decision was thus stated: ” It was strongly argued by the learned pleader for the respondent that as the plaint states facts and circumstances which, if proved, would be good justification for the court decreeing partition, therefore at this stage we must proceed on the basis that there was a good cause of action and there was thus a severance of status effected by the institution of the suit. This clearly does not amount to anything more than this, that it is open to a person who chooses to act on behalf of a minor member of a Hindu family to exercise the discretion on his behalf to effect a severance. What causes the severance of a joint Hindu family is not the existence of certain facts which would justify any member to ask for partition, but it is the exercise of the option which the law lodges in a member of the joint family to say whether he shall continue to remain (1) (1917) T.L.R. 41 Mad. 442. 1258 joint or whether he shall ask for a division. In the case of an adult he has not got to give any reasons why lie asks for partition but has simply to say that he wants partition, and the court is bound to give him a decree. In the case of a minor the law gives the court, the power to say whether there should be a division or not, and we think that it will lead to considerable complications and difficulties if we are to say that other persons also have got the discretion to create a division in the family, purporting to act on behalf of a minor.” This decision was cited with approval in Lalta Prasad v.Sri Mahadeoji Birajman Temple (1), wherein it was observed: ” The effect, therefore, we think, of an action brought by a minor through his next friend is not to create any alteration of status of the family, because a minor cannot demand as of right a separation; it is only granted in the discretion of the court when, in the circumstances, the action appears to be for the benefit of the minor. See Chelimi Chetty v. Subbamma (2).” In Hari Singh v. Pritam Singh (3), a suit for partition instituted on behalf of a minor was decreed, the court finding that it was for the benefit of the minor. The question then arose as to the period for which the karta could be made liable to account. It was held, following the decisions in Chelimi Chetty v. Subbamma (2 ) and Lalla Prasad v. Sri Mahadeoji Birajman Temple (1), that as the severance in status took place only on the date of the decision and not when the suit was instituted, the liability to account arose only from the date of the decree and not from the date of the suit. It may be mentioned that in Chhotabhai v. Dadabhai (4) Divatia J. quoted the decision in Chelimi Chetty v. Subbamma (2) with approval, but as pointed out in Ramsing v. Fakira (5) and by the learned judge himself in Bammangouda v. Shankargouda (6), the point now under consideration did not really arise for decision in that case, and the (1) (1920) I.L.R. 42 All. 461. (2) (1917) I.L.R. 41 Mad. 442. (3) A.I.R. 1936 Lah. 504. (4) A.I.R. 1935 Bom. 54. (5) I.L.R. [1939] Bom. 256. (6) A.I.R. 1944 Bom. 67. 1259 observations were merely obiter. It is on the strength of the above authorities that the appellants contend that when the minor plaintiff died in January 1943, the suit for partition had abated, and that his mother had no right to continue the suit as his heir. Now, the ratio of the decision in Chelimi Chetty v. Subbamma (1)-and it is this decision that was followed in Lalta Prasad’s Case (2 ), Hari Singh v. Pritam Singh (3) and Chhotabhai v. Dadabhai (4)-is that the power to bring about a division between a minor and his coparceners rests only with the court and not with any other person, and that, in our judgment, is clearly erroneous. When a court decides that a suit for partition is beneficial to the minor, it does not itself bring about a division in status. The court is not in the position of a super-guardian of a minor expressing on his behalf all intention to become divided. That intention is, in fact, expressed by some other person, and the function which the court exercises is merely to decide whether that other person has acted in the best interests of the minor in expressing on his behalf ail intention to become divided. The position will be clear when regard is had to what takes place when there is a partition outside court. In such a partition, when a branch consisting of a father and his minor son becomes divided from the others, the father acts on behalf of the minor son as well; and the result of the partition is to effect a severance in status between the father and his minor son, oil the one hand and the other coparceners, on the other. In that case, the intention of the minor to become separated from the coparceners other than his father is really expressed on his behalf by his father. But it may happen that there is a division between the father and his own minor son, and in that case, the minor would normally be represented by his mother or some other relation, and a partition so entered into has been recognised to be valid and effective to bring about a severance in status. The minor has no doubt the right to have the partition set aside if it is shown to have been prejudicial to him but if that is not established, the partition (1) (1917) I.L.R. 41 Mad. 442. (3) A.I.R. 1936 Lah. 504. (2) (1920) I.L.R. 42 All. 461. (4) A.I.R. 1935 BOM. 54. 160 1260 is binding on him. Vide Balkishen Das v. Ram Narain Sahu (1). And even when the partition is set aside on the ground that it is unfair, the result will be not to annul the division in status created by the partition but to entitle the minor to a re-allotment of the properties. It is immaterial that the minor was represented in the transaction not by a legal guardian but by a relation. It is true, as held in Gharib- Ul-Lah v. Khalak Singh (2) that no guardian can be appointed with reference to the coparcenary properties of a minor member in a joint family, because it is the karta that has under the law the right of management in respect of them and the right to represent the minor in transactions relating to them. But that is only when the family is joint, and so where there is disruption of the joint status, there can be no question of the right of a karta of a joint family as such to act on behalf of the minor, and on the authorities, a partition entered into on his behalf by a person other than his father or mother will be valid, provided that person acts in the interests of and for the benefit of the minor. If, under the law, it is competent to a person other than the father or mother of a minor to act on his behalf, and enter into a partition out of court so as to bind him, is there any reason why that person should not be competent when he finds that the interests of the minor would best be served by a division and that the adult coparceners are not willing to effect a partition, to file a suit for that purpose on behalf of the minor, and why if the court finds that the action is beneficial to the minor, the institution of the, suit should not be held to be a proper declaration on behalf of the minor to become divided so as to cause a severance in status? In our judgment, when the law permits a person interested in a minor to act on his behalf, any declaration to become divided made by him on behalf of the minor must be held to result in severance in status, subject only to the court deciding whether it is beneficial to the minor; and a suit instituted on his behalf if found to be beneficial, must be held to bring about a division in status. That (1) (1903) L.R. 30 I.A. 139. : (2) (1903) L.R. 30 I.A. 165. 1261 was the view taken in a Full Bench decision of the Madras High Court in Rangasayi. v. Nagarathnamma (1), wherein Ramesam J. stated the position thus: ” These instances show that the object of the issue whether the suit was for the benefit of the minor is really to remove the obstacle to the passing of the decree. It is no objection to the maintainability of the suit. In my opinion therefore in all such cases the severance is effected from the date of the suit conditional on the court being able to find that the suit when filed was for the benefit of the minor.” The same view has been taken in Ramsing v. Fakira (2) and Mandliprasad v. Ramcharanlal (3), and we agree with these decisions. On the conclusion reached above that it is the action of the person acting on behalf of a minor that brings about a division in status, it is necessary to examine what the nature of the jurisdiction is which the courts exercise when they decide whether a suit is for the benefit of a minor or not. Now, the theory is that the Sovereign as parens patriae has the power, and is indeed under a duty to protect the interests of minors, and that function has devolved on the courts. In the discharge of that function, therefore, they have the power to control all proceedings before them wherein minors are concerned. They can appoint their own officers to protect their interests, and stay proceedings if they consider that they are vexatious. In Halsbury’s Laws of England, 3rd Edn., Vol. XXI, p. 216, para. 478, it is stated as follows: ” Infants have always been treated as specially under the protection of the Sovereign, who, as parens patriae, had the charge of the persons not capable of looking after themselves. This jurisdiction over infants was formerly delegated to and exercised by the Lord Chancellor; through him it passed to the Court of Chancery, and is now vested in the Chancery Division of the High Court of Justice. It is independent of the question whether the infant has any property or not.” (1) (1933) I.T.R. 57 Mad. 95. (2) I.L.R. [1939] Bom. 256. (3) I.L.R. [1947] Nag. 848. 1262 It is in the exercise of this jurisdiction that courts require to be, satisfied that the next friend of a minor has in instituting a suit for partition acted in his interest. When, therefore, the court decides that the suit has been instituted for the benefit of the minor and decrees partition, it does so not by virtue of any rule, special or peculiar to Hindu law but in the exercise of a jurisdiction which is inherent in it and which extends over all minors. The true effect of a, decision of a court that the action is beneficial to the minor is not to create in the minor proprio vigore a right which he did not possess before but to recognise the right which had accrued to him when the person acting on his behalf instituted the action. Thus, what brings about the severance in status is the action of the next friend in instituting the suit, the decree of the court merely rendering it effective by deciding that what the next friend has done is for the benefit of the minor. It remains to consider one other argument advanced on behalf of the appellants. It was urged that the cause of action for a suit for partition by a minor was one personal to him, and that on his death before hearing, the suit must abate on the principle of the maxim, actio personalis moritur cum persona. But that maxim has application only when the action is one for damages for a personal wrong, and as a suit for partition is a suit for property, the rule in question has no application to it. That was the view taken in Rangasayi v. Nagarathnamma (1) at pp. 137-138 and in Mandliprasad v. Ramcharanlal (2) at p. 871, and we are in agreement with it. All the contentions urged in support of the appeal have failed, and the appeal is accordingly dismissed with costs. The amounts paid by the appellants to the respondents in pursuance of the order of this Court dated March 7, 1958, will be taken into account in adjusting the rights of the parties under this decree. (1) (1933) I.L.R. 57 Mad. 95. Appeal dismissed. The appellant, a professor in the respondent University, was dismissed from service by the respondent. He thereupon referred the dispute as to his dismissal and certain other disputes to arbitration under the provisions Of s. 45 of the Delhi University Act. An award was made on the reference which among other things decided that the appellant’s ” dismissal was ultra vires, mala fide, and has no effect on his status. He still continues to be a professor of the University “. On proceedings to obtain a judgment on the award: Held, that the award which purported to enforce a contract of personal service disclosed an error on the face of it and must be set aside. High Commissioner for India v. I. M. Lall, (1948) L. R. 75 I. A. 225 and Ram Kissendas Dhanuka v. Satya Charan Law, (1949) L. R. 77 I. A. 128, distinguished. An award may disclose an error on its face though the reason for the erroneous decision was not set out in it. Champsey Bhara & Co. v. jivraj Balloo Spinning and Weaving Co. Ltd., (1923) L.R. 50 I.A. 324, explained. Held, further, that an award made under S. 45 Of the Delhi University Act to which the section itself makes the provisions of the Arbitration Act, 1940, applicable, is not the same thing as an award under the Industrial Disputes Act, 1947, and there can be no analogy between the two and the words ‘any dispute ‘ occurring in that section cannot include a dispute relating to reinstatement or authorise the passing of any such direction by the arbitrator. Western India Automobile Association v. Industrial Tribunal, Bombay, [1949] F. C. R. 321, distinguished. CIVIL APPELLATE JURISDICTION : CiVil Appeal No. 229 of 1956. Appeal from the judgment and order dated January 15, 1955, of the Punjab High Court in F. A. O. No. 119-D of 1954, arising out of the judgment and decree 1237 dated May 27, 1954, of the Court of Sub-Judge Class III, Delhi, in Suit No. 206 of 1953. N. C. Chatterjee, A. N. Sinha and P.K. Mukherjee, for the appellant. M.C. Setalvad, Attorney-General for India, A. B. Rohatgi and B. P. Maheshwari, for the respondent. 1958. September 3. The Judgment of the Court was delivered by SARKAR J.-This appeal arises out of a proceeding for filing an award in Court and obtaining a judgment thereon. The award was made in respect of disputes between the appellant, a professor of the respondent, the University of Delhi, and the respondent. The dispute originally started many years ago and with the passage of time, increased in volume. A narrative of the disputes is necessary for the proper appreciation of the questions arising in this appeal and this we now proceed to give. On May 10, 1944, the appellant was appointed Professor of Chemistry by the respondent. In August 1948 the Government of India appears to have sanctioned a scheme called the Selection Grade for a higher grade of pay for certain professors. The appellant claimed to be entitled to the benefit of this scheme but it was not given to him by the respondent. This was the first dispute between the parties. In March, 1949, another professor, Dr. Seshadri, was appointed by the respondent the Head of its Department of Chemistry. The appellant contended that he was the Head of the Department and had been wrongfully superseded by the appointment of Dr. Seshadri as the Head. This gave rise to another dispute. The appellant’s case is that he tried to get this dispute solved by arbitration under the provisions of the Delhi University Act, 1922, but was unable to do so owing to the obstructive attitude of the University authorities, and was, therefore, on October 18, 1949, forced to file a suit for a, declaration that his removal from his position of the Head of the Department of Chemistry was illegal. The respondent in its turn also had certain 1238 complaints against the appellant for misconduct of more or less serious character into the details of which it is not necessary to enter. It appears to have been agreed between the parties in October 1950 that the mutual grievances would be investigated by Sir S. Vardachariar and Bakshi Sir Tek Chand and their decision was to be accepted as final and binding. In view of this agreement the appellant withdrew his aforesaid suit on November 3, 1950. The investigation was thereafter held and a report submitted on March 1, 1951, which appears to have gone substantially against the appellant. The appellant contended that the investigation had not been fairly held and that the report was for this and other reasons defective and not binding on him. He actually made an application on March 26, 1951, to the Sub- Judge, Delhi, under s. 33 of the Arbitration Act, 1940, for a declaration that there was no arbitration agreement and hence the two referees had no jurisdiction to act or to make an award and, in the alternative, if there was an award, for an order setting it aside. While this application was pending, the Executive Council of the respondent passed a resolution on April 26, 1951, terminating the appellant’s service as a professor of the University in view of the findings against him in the report of the investigators. On February 11, 1952, the Sub-Judge, Delhi, dismissed the application under s. 33 on the ground that the agreement as to the investigation by Sir S. Vardachariar and Bakshi Sir Tek Chand of the mutual grievances “,as not a submission to arbitration and, therefore, no application under s. 33 of the Arbitration Act lay. An appeal to the High Court was dismissed on April 22, 1953, for the same reason. What we have stated so far gives the history of the disputes between the parties. We now proceed to the events with which we are immediately concerned in this appeal. On April 28, 1953, the appellant wrote a letter to the respondent claiming, under the provisions of s. 45 of the Delhi University Act, an arbitration with regard to various disputes mentioned in it. That section is in these terms: 1239 ” Section 45. Any dispute arising out of a contract between the University and any officer or teacher of the University shall, on the request of the officer or teacher concerned, be referred to a Tribunal of Arbitration consisting of one member appointed by the Executive Council, one member nominated by the officer or teacher concerned, and an umpire appointed by the Chancellor. The decision of the Tribunal shall be final and no suit shall lie in any Civil Court in respect of the matters decided by the Tribunal. Every such request shall be deemed to be a submission to arbitration upon the terms of this section, within the meaning of the Arbitration Act, 1940, and all the provisions of that Act, with the exception of section 2 thereof, shall apply accordingly.” By that letter the appellant appointed Professor M. N. Saha, the celebrated scientist, now deceased, an arbitrator and called upon the respondent to nominate another arbitrator. The disputes raised in this letter were, (a) that the appellant had been wrongfully deprived of the selection grade; (b) that by the appointment of Dr. Seshadri, as the Head of the Department of Chemistry, the appellant had been wrongfully superseded; (c) that his dismissal was wrongful. A copy of this letter was sent to Professor Saha. On May 2, 1953, the appellant again wrote to the respondent calling attention to the fact that he had already appointed Professor Salia an arbitrator and requiring it to appoint an arbitrator within fourteen days as provided under the law. On May 7, 1953, the respondent wrote to the appellant that his letter of April 28, 1953, had been considered by its Executive Council on April 30, 1953, and that the Council, for the reasons mentioned, to which it is not necessary to refer, did not propose to take any action in the matter. Thereafter, on May 18, 1953, the appellant addressed a further letter to the respondent in which he stated, ” as the said University had failed for 15 clear days to appoint after the service of my said notice “, meaning his notice of May 2, 1953, ” on the University, please take notice that I hereby 1240 appoint Professor M. N. Saba arbitrator appointed by me to act as the sole arbitrator and give his award.” The appellant also wrote in similar terms to Professor Saba asking him to proceed with the reference as he had become the sole arbitrator. On May 24, 1953, Professor Saba wrote to the respondent stating that as he had been appointed the sole arbitrator by the appellant, he fixed June 15, 1953, for the hearing of the case. On June 12, 1953, the respondent wrote to Professor Saba intimating that it had been advised that the appellant had no right to call for an arbitration and that the respondent did not recognise him (Professor Saba) as an arbitrator and also that he had no jurisdiction to act as one. Notwithstanding this Professor Saba started the arbitration proceedings on June 16, 1953. The respondent appeared by a lawyer before Professor Saba and repeated its objection to his jurisdiction to act as an arbitrator. Professor Saba overruled the respondent’s objection and held that he had jurisdiction to act as the sole arbitrator whereupon the representatives of the respondent retired from the proceedings which were then continued in their absence. Professor Saba made an award which is dated June 17, 1953. The material portion of the award is in these terms The points requiring determination by me are as follows:- 1.Whether the Selection Grade of Professors was rightly withheld in the case of Dr. S. B. Dutt when it was given to all other professors of his standing and seniority. 2. Whether Dr. S. B. Dutt was appointed Professor and Head of the Chemistry Department of the University and was rightly removed from the Headship. 3 Whether the dismissal of Dr. Dutt by a resolution passed by the Executive Council on the 26th April, 1951, was mala fide and illegal and therefore wrongful and ineffectual. 4.Whether Dr. Dutt was harassed by the officials of the University and its effect. 1241 After giving the case my careful and earnest attention I find: (a) The steps for giving the Selection Grade of Professors of the University to Dr. S. B. Dutt were wrongfully and without just cause not taken by the University and he has therefore been wrongfully deprived of the Selection Grade. (b) The terms of appointment of Dr. Dutt were that be would be also the Head of the Chemistry Department. His removal from Headship was wrongful. (c) Dr. Dutt was wrongfully dismissed. His dismissal was ultra vires, mala fide and has no effect on his status. He still continues to be a professor of the University. (d) He has been subjected to harassment.” At the request of the appellant, Professor Saha filed the award in the Court of the Sub-Judge, Delhi, on June 24, 1953. The respondent took various objections to it. The Sub-Judge overruled these objections and passed a decree on May 27, 1954, making the award, excepting a small portion thereof with which this appeal is not concerned, a rule of Court. The respondent filed two appeals from this decree, one in the Court of the senior Sub-Judge, Delhi, and the other in the Court of the District Judge, Delhi, as it was in doubt as to which was the proper Court to which the appeal lay. By an order made on November 26, 1954 the High Court withdrew both these appeals to itself for trial, and by its judgment dated January 15, 1955, allowed the appeals and set aside the award on the ground that it disclosed an error on the face of it. The present appeal is against this judgment. Two points have been raised in this appeal, one by the appellant and the other by the respondent on a matter decided against it which will be referred to later. The appellant contends that the High Court was wrong in its view that the award disclosed an error on the face of it. The High Court had held that it was not open to the arbitrator “to grant Dr. Dutt a declaration that he was still a professor in the Univer- 1242 sity which no Court could or would give him.” The High Court felt that this declaration amounted to specific enforcement of a contract of personal service which was forbidden by s. 21 of the Specific Relief Act and therefore disclosed an error on the face of the award. We are in entire agreement with the view expressed by the High Court. There is no doubt that a contract of personal service cannot be specifically enforced. Section 21, Cl. (b) of the Specific Relief Act, 1877, and the second illustration under this clause given in the section make it so clear that further elaboration of the point is not required. It seems to us that the present award does purport to enforce a contract of personal service when it states that the dismissal of the appellant ” has no effect on his status”, and ” He still continues to be a Professor of the University “. When a decree is passed according to the award, which if the award is unexceptionable, has to be done under s. 17 of the Arbitration Act after it has been filed in Court, that decree will direct that the award be carried out and hence direct that the appellant be treated as still in the service of the respondent. It would then enforce a contract of personal service, for the appellant claimed to be a professor under a contract of personal service, and so offend s. 21 (b). It was said that this might make the award erroneous but that was not enough; before it could be set aside, it had further to be shown that the error appeared on the face of the award. The learned counsel contended that no error appeared on the face of the award as the reasoning for the decision was not stated in it. It was said that this was laid down in the well-known case of Champsey Bhara & Co. v. Jivraj Balloo Spinning and Weaving Co. Ltd. (1). We were referred to the observations occurring in the judgment at p. 331 to the following effect: ” An error in law on the face of the award means, in their Lordship’s view, that you can find in the award or a document actually incorporated thereto, as for instance a note appended by the arbitrator stating (1) (1923) L.R. 50 1. A. 324. 1243 the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous.” We are unable to agree that the Judicial Committee laid down the proposition that the learned counsel for the appellant ascribes to them. When they referred to the reasons for the judgment, they were contemplating a case where the judgment, that is, the award itself, did not disclose an error but the reasons given for it in an appended paper, did. They did not intend to say that no error can appear on the face of an award unless the reasons for the decision contained in the award were given in it. In our view, all that is necessary for an award to disclose an error on the face of it is that it must contain, either in itself or in some paper intended to be incorporated in it, some legal proposition which on the face of it and without more, can be said to be erroneous. This was the decision of the Judicial Committee in the Champsey Bhara & Co. case (1). As the award in this case directs specific enforcement of a contract of personal service, it involves a legal proposition which is clearly erroneous. Another point raised on behalf of the appellant was that the portion of the award which held that his dismissal had no effect on his status and that he continued to be a professor was merely consequential and hence a surplusage and therefore an error disclosed in it would not vitiate the award. This contention seems to us to be unfounded. The award held that the appellant had been dismissed wrongfully and mala fide. Now, it is not consequential to such a finding that the dismissal was of no effect, for a wrongful and mala fide dismissal is none the less an effective dismissal though it may give rise to a claim in damages. The award, no doubt, also said that the dismissal of the appellant was ultra vires but as will be seen later, it did not thereby hold the act of dismissal to be a nullity and, therefore, of no effect. We are also clear in our mind that the contention about the offending portion of the award being a mere surplusage affords (1) (1923) L.R. 50 I.A 324. 158 1244 no assistance to the appellant for it was not said on his behalf that the offending portion was severable from the rest of the award and should be struck out as a mere surplusage. It, therefore, has to remain as a part of the award and so long as it does so, it would disclose an error on the face of the award and make it liable to be set aside as a whole. It was then contended that a declaration that the appellant continued in his service under the respondent in spite of his dismissal by the latter was a declaration which the law permitted to be made and was not therefore erroneous. It was said that such a declaration had in fact been made by the Judicial Committee in The High Commissioner for India v. I. M. Lall (1). This contention, in our view, also lacks substance. That was not a case based on a contract of personal service. Indeed the contract of the respondent in that case provided that the service was ” to continue during the pleasure of His Majesty, His Heirs and Successors, to be signified under the hand of the Secretary of State for India “. The respondent had been dismissed by an order made under the hand of the Secretary of State for India, and as he was liable to be dismissed at the pleasure of the Crown, he could base no complaint against his dismissal on the con- tract of service and did not, in fact, do so. He founded his suit on the claim that his dismissal by the Crown from the Indian Civil Service of which he was a member, was void and of no effect as certain mandatory provisions of the Government of India Act, 1935, had not been complied with. The Judicial Committee accepted this claim and thereupon made the declaration that the purported dismissal of the respondent was void and inoperative and he remained a member of the Service at the date of the institution of his suit. The declaration did not enforce a contract of personal service but proceeded on the basis that the dismissal could only be effected in terms of the statute and as that had not been done, it was a nullity, from which the result followed that the respondent had continued in service. All that the Judicial Committee did in 1245 this case was to make a declaration of a statutory invalidity of an act, which is a thing entirely different from enforcing a contract of personal service. The learned counsel for the appellant also referred, up, to Ram Kissendas Dhanuka v. Satya Charan Law (1), in support of his contention that the declaration in the form made in the award was legal. That was a case of a suit by the minority shareholders in a company against its directors for a declaration that an ordinary resolution of the company terminating the appointment of its Managing Agent was void and inoperative inasmuch as under art. 132 of the Articles of Association of the Company the Managing Agents could be removed by an extraordinary resolution only. The High Court had declared the resolution to be void and inoperative. The Judicial Committee maintained that declaration and rejected the argument that ” to affirm the continuance in force of the Managing Agent’s appointment amounted to specific enforcement of the contract of personal service and was a violation of s. 21(b) of the Specific Relief Act, 1877.” It is quite clear to us that this decision has no application to the case in hand. That was not a case in which specific performance of a contract of service was sought. In fact the servant, that is to say, the Managing Agent, was not a party to the action at all. As the Judicial Committee observed: ” It (the decree) merely prevents dismissal of the managing agents or termination of their appointment at the instance of a majority in violation of the articles of association of the company which the minority are entitled to have observed. As between the company and the managing agents it certainly has not the effect of enforcing a contract of personal service.” It was a case, as the Chief Justice of the Calcutta High Court said in his judgment, in Ram Kissendas v. Satya Charan (2) at p. 331 ” not to enforce a claim to employment with an employer, but a suit to prevent third persons interfering with the Company’s employees who are carrying out their contract of service with the company. In other words, it is not a suit to enforce a contract, but a suit to prevent the procurement of a breach of contract.” To (1) (1949) L. R. 77 1. A. 128. (2) (1945) 50 C.W.N. 331. 1246 such a suit, of course, s. 21 of the Specific Relief Act has no application. The learned counsel for the appellant also contended ;that the present case was a case of an ultra vires act as I. M. Lall’s case (1) was and therefore governed by the same considerations. He relied for this purpose on that portion of the award which held that the ” appellant’s dismissal was ultra vires “. We find no basis for this contention. No point as to the dismissal of the appellant being ultra vires bad been referred to the arbitrator. The points for decision set out by the arbitrator do not refer to any question of the dismissal being ultra vires. Again the letter of the appellant, dated April 28, 1953, setting out the disputes of which he required decision by arbitration does not make out any case that the dismissal of the appellant by the respondent was ultra vires the latter’s incorporating statute. His point about the dismissal was that it had been malicious and therefore wrongful ; that it had been brought about by a resolution of the Executive Council of the respondent on the basis of the report (also called award) of the investigators, Sir S. Vardachariar and Bakshi Sir Tek Chand, procured by the Vice-Chancellor, Dr. Sen, by denying to the members of the Council any opportunity to discuss the merits of that report. His case on this point in his own words was this: ” When the award was put before the Executive Council Dr. Sen definitely prohibited all discussions of it on the ground that it was an award and suppressed those who desired to comment on it, feeling as they did that the decision, specially in the matter of the supposedly altered telegram was open to grave doubts. In regard to this, questions were asked but not answered. If Dr. Sen had not wrongly disallowed discussion, I venture to say that the Council would not have agreed to a dismissal, or at any event any allegation of moral turpitude.” It is clear therefore that the appellant was challenging his dismissal on the ground that the Vice-Chancellor, Dr. Sen, who, he said, was inimically disposed towards (I) (1948) L.R. 75 I.A. 225. 1247 him, had shut out all discussion on the question and procured a resolution for the dismissal of the appellant, and that because of such malicious and wrongful barring of discussion, the resolution was wrongful. It was not the appellant’s case before the arbitrator that the dismissal was ultra vires the statute or otherwise a nullity. We also find that this point was not advanced in the courts below. The last point raised on behalf of the appellant was based on s. 45 of the University Act. The terms of that section have been earlier set out. The contention of the learned counsel is that since the section says that any dispute arising out of a contract between the University and any officer or teacher of the University shall, on the request of the officer or teacher concerned, be referred to a Tribunal of Arbitration, a dispute as to dismissal and a claim to reinstatement might be referred to arbitration under it, and if that could be done, then, the award might properly direct the dismissed professor to be reinstated. For this part of his argument the learned counsel referred us to Western India Automobile Association v. Industrial Tribunal, Bombay (1). It had been held there that an Industrial Tribunal had power in an award made on a reference under the Industrial Disputes Act, 1947, to direct reinstatement of discharged employees. The learned counsel referred us to the following observation occurring in -the judgment of the Federal Court at p. 332 : ” Any dispute connected with the employment or non- employment would ordinarily cover all matters that require settlement between workmen and employers, and whether those matters concern the causes of their being out of service or any other question and it would also include within its scope the reliefs necessary for bringing about harmonious relations between the employers and the workers.” It was contended that, as in the Western India Automobile Association case (1), the words ” any dispute ” in s. 45 of the University Act would include a dispute as to a claim for reinstatement and would therefore give the arbitrator power to order reinstatement. We do not think that any analogy can be drawn from the, (1) [1949] F.C.R. 321. 1248 wording of the Industrial Disputes Act. That Act is concerned with considerations which are peculiar to it. The proceedings before a Tribunal constituted under that Act cannot be said to be arbitration proceedings nor its decision an award, though called an award in the Act, in the sense in which the words ” arbitration proceedings ” and ” award ” are used in the Arbitration Act. An award under the Industrial Disputes Act cannot be filed in Court nor is there any provision for applying to Court to set it aside. All considerations that apply to an award under the Industrial Disputes Act, cannot be said to apply to an award made under the Arbitration Act. Furthermore, under s. 45 of the University Act, the arbitration held under it is to be governed by the provisions of the Arbitration Act, 1940, and the validity of an award made under such an arbitration has, therefore, to be decided by reference to the rules applying to that Act, one of such rules being that the award should not disclose an error on its face. For these reasons, in our view, this argument is unfounded. This disposes of all the points raised on behalf of the appellant and brings us to the contention raised on behalf of the respondent. That contention was that the appointment of Professor Saha as the sole Arbitrator was illegal. It was said that the respondent claimed to appoint Professor Saha the sole arbitrator under s. 9 of the Arbitration Act but that section could only apply where the reference was to two arbitrators, one to be appointed by each party, while the proper interpretation of s. 45 of the University Act was that the arbitration was to three Arbitrators, one nominated by each of the parties and the third by the Chanceller of the University. This point was decided against the respondent by the High Court. As, however, the appeal must be dismissed for the reason that the award contains an error on the face of it, as we have earlier found, it becomes unnecessary to decide the point raised by the respondent. We, therefore, do not express any opinion on this question. In the result this appeal is dismissed with costs throughout. Appeal dismissed. The appellant was tried along with P for the offence of murder. The prosecution case was that the appellant, in conspiracy with P who was employed as a servant in the house of the deceased, took advantage of the deceased being alone in the house with her child, went upstairs and killed her and stole her ornaments, while P remained downstairs with the child. The evidence upon which the prosecution relied for conviction consisted of the confession of P, the statement of the appellant which led to the recovery of the ornaments belonging to the deceased from the possession of the mistress of the appellant, the recovery of a blood- stained dagger from his belongings at the police station and his conduct after the murder. The confession of P was later retracted by him in the Court of ‘Session. It was contended for the appellant that a retracted confession of an accused cannot be used against his co-accused Held, that a voluntary and true confession made by an accused though it was subsequently retracted by him, can be taken into consideration against a co-accused by virtue Of s. 30 of the Indian Evidence Act, but as a matter of prudence and practice the court should not act upon it to sustain a conviction of the co-accused without full and strong corroboration in material particulars both as to the crime and as to his connection with that crime. The amount of credibility to be attached to a retracted con- fession would depend upon the circumstances of each particular case. Held, further, that on the evidence in the case the confes- sion of P was voluntary and true and was strongly corroborated in material particulars both concerning the general story told in the confession concerning the crime and the appellant’s connection with crime. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 77 of 1958. Appeal by special leave from the judgment and order dated February 26, 1958, of the Punjab High Court in Criminal Appeal No. 860 of 1957, arising out 155 1220 of the judgment and order dated December 23, 1957, of the Additional Sessions Judge at Ambala in Sessions No. 20 of 1957 and Trial No. 32 of 1957. Harnam Singh and Sadhu Singh, for the appellant. Har Parshad and T. M. Sen, for the respondent. 1958. September 2. The Judgment of the Court was delivered by IMAM J.-The appellant and one Prem were tried for the murder of Nirmala Devi, wife of Banwari Lal, a Practising lawyer at Rupar. The appellant was sentenced to death while Prem was sentenced to imprisonment for life. The appellant and Prem appealed against their conviction and sentence to the High Court of Punjab. Their appeals were dismissed and their conviction and sentence were affirmed by the High Court. The appellant obtained from this Court special leave to appeal and in the present appeal the only question for consideration is whether the appellant was rightly convicted and sentenced for the murder of Nirmala Devi. The case of Prem is not before us. At Rupar, Banwari Lal practised as a lawyer. His wife, the deceased Nirmala Devi lived with him there with their child, eight months old. With them also lived –Banwari Lal’s sister Vina, a girl of about 16 to 17 years of age. Banwari Lal had employed Prem as a servant about four months before the murder of Nirmala Devi on February 12, 1957. This Prem was a youngster of about fourteen years of age at that time. According to the prosecution, lie was an associate of the appellant who was posted at Rupar in the capacity of a foot- constable in the police force. The appellant and Prem became friendly and it is said that the appellant had an eye on the ornaments of the deceased Nirmala Devi, which she was in the habit of wearing when she went out. The deceased was a young person in her twenties and of good character. She used to be left alone in the house with her child, when Banwari Lal went to court and Vina went to school. Prem, however, used to remain at the house. It is the case of the prosecution that the appellant in 1221 conspiracy with Prem took advantage of the deceased being alone in the house, when the appellant went upstairs and killed Nirmala Devi and stole her ornaments, while Prem remained down-stairs with her child. Vina had returned from school round about, 12-30 in the afternoon as it was the recess time. At that time Nirmala Devi was in the drawing room feeding her child. Prem was also at the house at that time. Vina again returned to the house at about 3-45 p.m. She enquired from Prem as to where Nirmala Devi was and was told by him that he did not know as he himself had been absent from the house. Vina, thereafter, went upstairs to the kitchen to take her food. Banwari Lal had returned from court at about 3-15 p.m., earlier than usual, as he had to attend an election meeting at the Municipal Office. He was accompanied by a pleader Sudarshan Kumar Jain who was going to Chandigarh. He had intended to give him a cup of tea, but finding the door leading through the staircase to the residential portion looked and thinking that his wife was not at home, lie and his friend left for the Municipal Hall. Banwari Lal returned to his house at about 4-45 p.m. He enquired from Prem as to where his wife was and was informed by him that she had gone out. He went upstairs and saw his sister Vina eating her food. On opening the drawing room, however, Banwari Lal was stunned to find his wife lying dead on the floor in a pool of blood. lie noticed several injuries on her and that some of her jewellery was missing. He proceeded to the police station almost opposite to his house and lodged a First Information Report about the murder at 5 p.m. There can be no manner of doubt that an audacious and a brutal murder of a young and a defenceless person had taken place with the intention of robbing her of her ornaments. The fact of murder has been apply proved and has not been seriously questioned. The only matter for consideration is Whether the evidence established that the deceased Nirmala Devi was murdered by the appellant with the assistance of Prem. The evidence upon which the prosecution relied for 1222 conviction is the confession of Prem, the statement of the appellant which led to the recovery of the ornaments belonging to Nirmala Devi from the possession of one Raj Rani a mistress of the appellant, the recovery of a blood- stained dagger from his belongings at the police station and his conduct after the murder. So far as the confession of Prem was concerned, it was retracted by him in the Court of Session. Prem’s statement under s. 342 to the Committing Magistrate, however, which had been brought on to the record under s. 287 of the Code of Criminal Procedure, clearly stated that the confession was a voluntary one. Indeed, his statement to the Committing Magistrate showed that the crime was committed by the appellant and that Prem had assisted him in the commission of that crime. Although in the Court of Session Prem had retracted his confession, his memorandum of appeal in the High Court would indirectly suggest that the con- fession made by him was voluntary and true. Before we consider whether the confession was a voluntary and a true one, it is necessary to deal with the submission on behalf of the appellant that the confession, having been retracted by Prem, is irrelevant so far as the appellant is concerned as the retracted confession of an accused cannot be used against his co-accused. Although on behalf of the appellant it had not been argued that the retracted confession of Prem was inadmissible, we regard the submission that it was irrelevant and cannot be used against the appellant as tantamount to saying the same thing. Section 30 of the Indian Evidence Act states: ” When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.” It will be clear from the terms of this section that where more persons than one are being tried jointly for the same offence, a confession made by any one of them affecting himself and any one of his co-accused 1223 can be taken into consideration by the court not only against the maker of the confession but also against his co- accused. The Evidence Act nowhere provides that if the confession is retracted, it cannot be taken into consideration against the co-accused or the confessing accused. Accordingly, the provisions of the Evidence Act do not prevent the Court from taking into consideration a retracted confession against the confessing accused and his co-accused. Not a single decision of any of the courts in India was placed before us to show that a retracted confession was not admissible in evidence or that it was irrelevant as against a co-accused. An examination of the reported decisions of the various High Courts in India indicates that the preponderance of opinion is in favour of the view that although it may be taken into consideration against a co-accused by virtue of the provisions of s. 30 of the Indian Evidence Act, its value was extremely weak and there could be no conviction with out the fullest and strongest corroboration on material particulars. The corroboration in the full sense implies corroboration not only as to the factum of the crime but also as to the connection of the (co-accused with that crime. In our opinion, there appears to be considerable justification for this view. The amount of credibility to be attached to a retracted confession, however, would depend upon the circumstances of each particular case. Although a retracted confession is admissible against a co-accused by virtue of s. 30 of the Indian Evidence Act, as a matter of prudence and practice a court would not ordinarily act upon it to convict a co-accused without corroboration. On this basis it is now to be seen whether the confession was voluntary and true. It will then be necessary to consider whether the confession has received full and strong corroboration in material particulars both as to the crime and the appellant’s connection with that crime. It was strongly urged that the police had adopted a device to get the accused Prem into their custody again on a charge of theft as lie had already been placed in the judicial lock-up after his arrest in 1224 connection with the murder of the deceased Nirmala Devi. He was arrested on June 25, 1957, in connection with a burglary which had taken place on December 5, 1956, and he had been since then in police custody in connection with the investigation of that case until July 10, 1957, the last day of remand to police custody. On July 10, 1957, Prem made a confession before a Magistrate concerning the murder of Nirmala Devi. Prem was discharged in the burglary case on July 20, 1957. Having adopted this device of getting Prem into police custody the police were in a position to exercise great influence upon Prem, a, young’ lad of about 14 years of age. When lie made his confession on July 10, 1957, he must have been still labouring under the influence of the police and sufficient time was not given by the Magistrate to remove that influence. The Magistrate ought not to have recorded his confession on July 10, 1957. He ought to have remanded Prem to jail custody for a few days in order that the police influence may be removed from his mind. We have examined the record and find no justification for the suggestion made that the police adopted a device to got the accused Prem in to their custody again by arresting him in the burglary case of December 5, 1956. It is true that the accused Prem was discharged from the burglary case on July 20, 1957, but there is nothing on the present record to suggest that his arrest in the burglary case of December 5, 1956, was without justification and that it was done purely for the purpose of getting him back into police custody. It is true that Prem had been in police custody from June 25, 1957 to July 10, 1957, and the Magistrate might as well have refrained from recording his confession on July 10, 1957. It is clear, however, from the record of the Magistrate that at 1 p.m. the accused Prem was produced before him by the police for the recording of his confession. The Magistrate told him that lie was not a police officer but a Magistrate and that he was at liberty to think over the matter whether he would volunteer to make a confession and gave him time, until 2 p.m. for this purpose. He further explained to Prem that he should 1225 consider himself quite free and not make a statement under the influence or temptation of anybody. At 2 p.m. the Magistrate took various precautions. All the doors and the windows of his room were closed. Everyone, except Prem, was turned out. The police were asked to stand in the verandah from where they could not see Prem. Prem was again told that he must regard himself as quite free and should not be under the influence of the police or anybody else. The Magistrate then put a series of questions which have been recorded in the form of questions and answers. By question 7, the Magistrate enquired how long Prem had been in police custody and from where he bad been brought that day, to which, the answer was that some 5 months back he had been arrested since then sometimes he had been sent to jail and sometimes had been kept in police custody. By question 8, the Magistrate asked whether he was kept awake during that period or had been given greased diet (Mnaggan giza, etc.), which we understand to mean whether he had been given greasy food which would induce a sleepy condition in persons eating such food, to which question he replied that he had enjoyed regular sleep and had been taking common diet. At the beginning, of course, the police had kept him awake. The Magistrate also enquired whether the police or any other person had made any promise or had given any undertaking to help Prem or had given all temptation to him or had influenced or frightened him. If so, he should state this fully from his heart, to which Prem replied that he had not been given any promise, temptation or inducement, nor was he subjected to fear or exhortation. He had been merely asked to make a true statement. Prem then said that he would make his statement of his own free will and the Magistrate could believe him or not. The Magistrate also asked Prem whether any one had beaten him or if there was any mark of injury on his body, to which, the answer was ‘no’. The Magistrate then examined the body of Prem and found that there was no mark of injury on his person. The Magistrate then asked as to why he was making a confession, to which, Prem answered 1226 that he was doing so of his own free will and to lessen the burden of his heart. The nature of the questions put and the manner in which the Magistrate examined Prem clearly showed that the Magistrate took every precaution to be satisfied whether Prem was going to make a voluntary statement. We are satisfied that during the period of police custody between the 25th of June and July 10, 1957, Prem was not induced to make a confession. He made the confession voluntarily. That the confession was voluntary finds support from Prem’s statement to the Committing Magistrate under s. 342 of the Code of’ Criminal Procedure. In that statement Prem told the Magistrate in answer to various questions the following story: He had been employed as a domestic servant by the lawyer Banwari Lal. He had developed during this period friendship with the appellant. The appellant had told him that he would commit rape on Nirmala Devi and would rob her of her ornaments and, if she resisted, he would murder her. He informed the appellant on February 11, 1957, that Nirmala -Devi would be alone in her house at about mid -day on February 12, 1957. He had received on February 11, 1957, a dagger wrapped in a pajama from the appellant and bad kept it in the store behind the office of Banwari Lal On February 12, 1957, he informed the appellant that Nirmala Devi was alone in the house. He had handed over the dagger and the pajama to the appellant on February 12, after taking it out of the store room. The appellant had sought his assistance in the commission of rape, robbery and murder of Nirmala Devi and he had been promised a half share in the booty. To the question whether he had kept watch over the house of Banwari Lal when the appellant entered it for committing rape, robbery and murder of Nirmala Devi, Prem answered that he was made to stand near the stair-case by the appellant and that he kept watch while the appellant committed the crime. He finally admitted to the Committing Magistrate that the confession which had been recorded on July 10, 1957, was a voluntary confession. When asked whether he had to say anything else, Prem told the Committing 1227 Magistrate that he had made a true statement before him and also in the Court of the Magistrate who had recorded his confession. Shorn of details the substance of the story told by Prem to the Committing Magistrate is in keeping with the substance of his confession recorded on July 10, 1957. It is to be further remembered that the statement of Prem to the Committing Magistrate was brought on to the record of the Court of Session under s. 287 of the Code of Criminal Procedure which directs that the statement should be read as evidence. Although Prem retracted the confession in the Court of Session, his memorandum of appeal filed in the High Court showed that he had acted under the influence of the appellant and had been allured by him to achieve his object. He, however, pleaded that be should not have received such severe punishment. On the contrary, lie should have been acquitted. These circumstances clearly indicate that the confession recorded on July 10, 1957, was a voluntary confession. It remains now to be seen whether it was a truthful confession. Prem asserted in his confession that he had acquaintance with the appellant previous to the appellant’s posting to Rupar and their association continued at Rupar. There is nothing inherently improbable in this story of Prem. It is true that there is not much evidence to corroborate Prem. that lie and the appellant were acquainted and used to associate. Banwari Lal had seen them talking to each other once or twice before the murder. The police station at which the appellant was posted was almost opposite to the house of Banwari Lal where Prem was employed as a servant and there was every probability of the appellant and Prem meeting. It is significant that on the day of murder of Nirmala Devi, in the afternoon, Prem was present in the compound of the police station with a child in a perambulator. Foot-constable Gurbachan Singh, P.W. 4, enquired from Prem as to why he had gone inside the police station. On this the appellant asked Gurbachan Singh not to remonstrate with Prem as he was a mere, boy. Gurbachan 156 1228 Singh had stated that previously he had never seen Prem going inside the police station with a perambulater. The intervention of the appellant suggests that he knew Prem and was friendly towards him. Prem’s story that he was employed as a servant by Banwari Lal is corroborated by the evidence of Banwari Lal himself, his sister Vina and his clerk Naranjan Das. In the nature of things there could be no corroboration of Prem’s story about the appellant’s proposal to rape and rob Nirmala Devi and, if necessary, to murder her. According to Prem’s confession a day before the murder he had been given a dagger by the appellant along with a _pajama and that Prem took the pajama and the dagger to the upper storey of Banwari Lal’s house having concealed it in the kothri of firewood which was near the office room of Banwari Lal. This part of his story receives corroboration from the evidence of Banwari Lal that after the murder he had found a blood-stained pajama, Exbt. P. 14, banging on the door of the store room which is at the back of the residential portion of the house. Banwari Lal is supported by Nand Lal, P.W. 34, Motor Mobile Patrol Sub-Inspector, who recorded the First Information of Banwari Lal. According to him, he found the pajama hanging on one of the shutters of an almirah fixed in the wall in the fuel room situate at the back of the room where Nirmala Devi was found lying dead. It was bloodstained. Banwari Lal had clearly stated that this pajama did not belong to him or any one in his house. The existence of the pajama in Banwari Lal’s house lends corroboration to the story of Prem that he had been given this pajama and that he had concealed it in the kothri of fire-wood near the office of Banwari Lal. The statement of Prem that he had asked Raj sabziwala to bring down the perambulator of the child and that he did so, finds corroboration from the evidence of Gurbachan Singh that in the afternoon he found Prem accused in the police station with a child in a perambulator. The presence of the accused Prem at Banwari Lal’s house near about the time of the murder appears to 1229 be clear. When Vina had left for her school at 9-45 a.m., Prem was in the house. Vina returned to the house from her school at about 12-30 noon. At that time Prem was present in the verandah in front of the office. When she finally returned from the school at about 3-45 p.m., apparently Prem was not in the house but arrived shortly thereafter. The murder was committed at any time between 12-30 p.m. and 2-15 p.m. if the appellant was the murderer, because Gurbachan Singh’s evidence showed that the appellant was at the thana at 2-15 p.m. Apparently, the appellant went out with Gurbachan Singh and returned to the thana with him in time for Gurbachan Singh to be on duty from 3 p.m. If the appellant was the murderer he must have committed the murder before 2-15 p.m. Nirmala Devi was alive at 12-30 p.m. when Vina saw her feeding her child. Assuming that Vina did not stay long, as she had come to get some money to purchase a copy-book, it would not be unreasonable to assume that Nirmala Devi was alive up to 12-40 or 12-45 p.m. The interval of time between that and 2-15 p.m., when the appellant was seen at the police station, is about 1 1/2 hours. It would be probable that during this time Prem was present in the house and when he says that lie was present there there is no inherent improbability in his statement. At 3-45 p.m., when Vina arrived, no doubt Prem was not in the house, but he came shortly thereafter and Vina took from him the child of Nirmala Devi. This clearly shows that Prem had gone out of the house with the child of Nirmala Devi which one would not normally expect him to do at that time of the day, if Nirmala Devi had left the house to do shopping or to visit anyone. If Nirmala Devi was in the house and alive it was most unlikely that Prem accused would have taken her child out of the house. Prem’s statement that he was amusing the child while the appellant was doing his nefarious work appears to be true, because the child was with him and he had been seen at the police station with a child in a perambulator. If the circumstances tend to show that in all probability Prem was in the house from 12-30 p.m. to 2-15 p.m. then his 1230 story that he was present at the house when the appellant came there appears to be a truthful statement. It is significant that when Vina arrived at the house at 3-45 p.m. she found the door of the stair-case locked. When Prem arrived she saw the key in his hand, although Prem had said it was lying on the floor. He opened the lock of the door of the stair-case with that key and Vinia went upstairs to the second floor where she went to the kitchen and took her food. When Banwari Lal arrived at his house at about 3-15 p.m. he found his office room locked from outside. He wanted to go to the residential portion for taking tea, but found the door of the stair-case locked from outside. Finding the door of the stair-case leading to the residential portion of his house locked, he came down and went away in connection with the election work. On his return he enquired from Prem about the whereabouts of his wife and Prem told him that she had gone out. He wished to go upstairs to the residential portion of the house and Prem at his request opened the lock of the stair-case, the key being with him. According to Banwari Lal, the usual practice was to lock the door of the office which adjoins the stair-case and to bolt the other door from inside, but on the day of the murder the door adjoining the stair-case was looked while the other door was lying open. Banwari Lal’s clerk, Naranjan Das, came to the house at 4-15 or 4-30 p.m. He went up to the verandah in front of the office and found both the doors of the office locked from outside. He asked Prem to open the office, but Prem told him that the key of one of the locks which was fixed on the door adjoining the stair-case, had been lost. He gave the key of the other lock and then Prem took out a key from his pocket and opened the lock fixed on the other door of the office. There is no reason to distrust all this evidence which would indicate that after Vina had left the house on her first visit at about 12-30 p.m. the two doors were locked from outside which was something unusual and that the keys of the looks of these doors were with Prem. He had given evasive answers about the keys to Vinia and Naranjan Das 1231 while the key was in his pocket. These circumstances also indicate the truthfulness of Prem’s statement that he was present in the house during the period in which Nirmala Devi was murdered. His statement in the confession that the appellant had locked the door and had thrown the key in tile office verandah and that while he sat there, the child, while playing, picked up the key and that he said to the girl (presumably Vina) there was the key and then he un- locked the door appears to be true. Reference in some detail to the various statements of Prem in the confession and the circumstances proved by the evidence of various witnesses became necessary in order to ascertain whether Prem had made a truthful statement about his presence at the house during the period in which Nirmala Devi was murdered and also as to the part he had played in assisting the appellant to commit the murder. While it is true that in the confession Prem does not attribute to himself any participation in the murder itself, it is not to be for- gotten that the murder of Nirmala Devi could not have taken place without his aid. Whoever entered the house of Banwari Lal in broad day light could not have gone upstairs without the knowledge and cooperation of Prem. According to his statement lie knew what was the intention of the appellant and to assist him in the accomplishment of his purpose he had concealed in his master’s house the pajama and the dagger given to him by the appellant. If he did not actually participate in the murder he would be equally guilty of the murder if that murder was committed with his aid and his connivance. The confession, as a whole, concerning the murder of the deceased appears to us to be true and we have no hesitation, after a very careful consideration of all the circumstances appearing in the case, in saying so. In our opinion, Prem’s confession was not only voluntary and true but it had been corroborated in material particulars regarding the general story told by him in his confession. The other question which now remains for consideration is whether the confession received material corroboration connecting the appellant with the murder of Nirmala Devi. 1232 Amongst the appellant’s possessions a dagger was recovered which appeared to be blood-stained but owing to the long delay in sending it to the Chemical Examiner its origin could not be determined. From the medical evidence it appears that the dagger in question could have inflicted the kind of injuries suffered by Nirmala Devi. The most important corroboration, however, is the recovery of the ornaments of the deceased. These ornaments, according to Banwari Lal, she had been wearing on the day of the murder when he left for court. On some statement made by the appellant his mistress Raj Rani was visited by the authorities and in the presence of respectable witnesses some ornaments were recovered and they were identified as the ornaments of the deceased. The evidence of Raj Rani also showed that these ornaments were given to her by the appellant. She apparently had no reason to depose against the appellant, because she had said in her evidence that she wished to meet the appellant before giving clue to the ornaments and that she wished to give the ornaments to the police in his presence. The defence case was not that these ornaments did not belong to the deceased but that, on the contrary, they were hers but had been produced by Banwari Lal during the police investigation and that it was falsely alleged that they had been recovered from Raj Rani. The evidence of Charan Dass, P. W. 24, President of the Municipal Committee of Rupar, however, clearly shows that in his presence the appellant made a statement to the police to the effect that one gold kara and seven gold bangles had been given by him to Raj Rani. This statement was made on August 3, 1957. His evidence also shows that on August 9, 1957, he accompanied the police party from Rupar to Jangpura and that Raj Rani took them to her sister’s house. She brought out a trunk from inside the room. She opened the lock of the trunk and produced from it a tin box which contained a gold kara and seven gold bangles. The evidence of GoriShanker, a Municipal Commissioner of Rupar is to the same effect and corroborated Charan Dass. The courts below believed these two witnesses. We have examined 1233 their evidence with some care in view of the submission on behalf of the appellant that they should not be relied upon. There is nothing in their evidence to show that they were in any way hostile to the appellant or had any motive to depose against him. The courts below having believed these witnesses, we would not ordinarily go behind their view on a question of fact. Having regard, however, to the con- sequences which arise as a result of the acceptance of their evidence in this particular case, we have examined their evidence in the light of the submission made on behalf of the appellant. It was suggested that at the earlier stage the police investigation was not properly conducted and the public were dissatisfied. A deputation of influential persons met the Chief Minister as a result of which a more active and thorough investigation took place. It may be that influential persons of Rupar interviewed the Chief Minister, being dissatisfied with the manner in which the investigation was taking place. There is, however, nothing to show that Charan Dass or Gori Shanker were amongst those who had interviewed the Chief Minister or that they had taken part in any agitation against the police concerning the manner of the investigation. It is difficult to believe that two responsible persons such as the President of the Municipal Committee and one of its members would go out of their way to depose to certain events which would provide very strong evidence against the appellant and lead to his conviction on a capital charge, unless they had really heard the statement of the appellant and witnessed the recovery as deposed to by them. It was then suggested that, apparently, Charan Dass had no real reason to go to the police station on August 3, 1957, and, therefore, his story that he heard the appellant make the statement which led to the recovery of the ornaments was false. Charan Dass, however, had stated the reason for his visiting the police station. He went there to complain to the police that people parked their push-carts in the bazar and thus obstructed the passage. In our opinion, as the President of the Municipal Committee of Rupar, if a nuisance was 1234 being created by people parking their push-carts in the bazar, it was a natural thing for him to go to the police station in order to get such obstruction removed and for the police to see that the nuisance did not continue. We can find nothing strange in the conduct of Charan Dass or Gori Shanker in having gone to the police station in the circumstances deposed to by them. We have no hesitation in believing the evidence of Charan Dass and Gori Shanker that the appellant made a statement to the effect that he had given one gold kara and seven gold bangles to Raj Rani and that the same were recovered from Raj Rani in their presence. It would appear, therefore, on the evidence of Raj Rani and these witnesses, that not long after the murder of Nirmala Devi the appellant was in possession of her ornaments and that he had given them to Raj Rani. The ornaments being in possession of the appellant soon after the murder would show that he either stole the ornaments or was in possession of them knowing or having reason to believe that they were stolen properties. Nirmala Devi had been murdered by someone who had stolen her ornaments. According to the confession of Prem it was the appellant who had gone up-stairs where Nirmala Devi was Sometime after the departure of Vina. He had given the appellant the pajama and the dagger. Thereafter, the appellant left the house leaving the pajama behind. After the departure of the appellant no outsider entered the house. It is clear, therefore, that in order to steal the ornaments the thief killed Nirmala Devi. The circumstances clearly indicate that the thief was no other than the appellant. It seems to us, therefore, that the confession of Prem receives strong and substantial corroboration connecting the appellant with the crime of the murder of the deceased Nirmala Devi. The conduct of the appellant from 2-15 p.m. onwards clearly shows that he was in a disturbed state of mind which is consistent with his having committed the crime, It is curious that lie was uttering the word I Nirmala. It had been suggested to Gurbachan Singh that the Assistant Sub- Inspector Rikhi Ram had a 1235 daughter with whom the appellant had illicit connection and that her name was Nirmala, but the witness stated that he had no knowledge about it. The appellant in his statement under s. 342 of the Code of Criminal Procedure before the Sessions Judge admitted that he was shouting out the name of Nirmala but he had a love affair with a girl named Nirmala, daughter of Rikhi Ram. We are not prepared to accept the explanation of the appellant as to how he was calling out the name of Nirmala so soon after the murder of Nirmala Devi. This conduct of the appellant may not by itself have been corroboration of sufficient importance to enable a court to convict the appellant on the retracted confession of Prem. No stronger and no better corroboration, however, of the confession of Prem could be had than the evidence which showed that the appellant had been in possession of Nirmala Devi’s ornaments soon after her murder. There were several comments made on the evidence by the learned Advocate for the appellant, but those comments were with reference to unimportant matters and were not at all relevant. In an appeal by special leave it is not ordinarily permissible to make submissions on questions of fact. The principal matter with which we have been concerned in this appeal was whether the confession of Prem had been corroborated in material particulars regarding the general story told by him and in material particulars tending to connect the appellant with the murder of the deceased. We have no hesitation in saying that the confession of Prem has been amply corroborated in both respects. Recovery of the ornaments of the deceased at the instance of the appellant incriminated him to the fullest extent and lent the strongest corroboration to the con- fession of Prem from which it was apparent that no other person than the appellant could have murdered Nirmala Devi. The appeal is accordingly dismissed. Appeal dismissed. These two appeals were preferred against the decision of the Nagpur High Court in an appeal under’s. 19(1)(f) of the Defence of India Act, 1939, modifying an award of compensation made 1178 under s. 19(i)(b) of that Act in respect of certain premises requisitioned by the Government under 75(A) of the Rules framed under the Act. Both the parties applied for and obtained leave to appeal to the Federal Court under ss. 109 and 110 of the Code of Civil Procedure. A preliminary objection was taken on behalf of the Government that the decision of the High Court was an award and not a judgment, decree or order within the meaning of ss. 109 and 110 of the Code and as such no appeal lay therefrom : Held, that the objection must prevail and both the appeals stand dismissed. There could be no doubt that an appeal to the High Court under s. 19(1)(f) Of the Defence of India Act from an award made under s. 19(i)(b) of that Act was essentially an arbitration proceeding and as such the decision in such appeal cold not be a judgment, decree or order either under the Code- of civil procedure or under Cl. 29 Of the Letters patent of the Nagpur High Court. Kollegal Silk Filatures Ltd. v. province, of Madyas, I. I,. R. [1948] Mad. 490, approved. There is a well-recognised distinction between a decision given by the Court in a case which it ‘hears on merits and one given by it in a proceeding for the filing of an award. The former is a judgment, decree or order of the Court appellable under the general law while, the latter is an adjudication of a private individual with the sanction of the Court stamped on it and where it does not exceed the terms of the reference, it is final and not appealable. There can be no difference in law between an arbitaration by agreement of parties and one under a statute. A referrence to arbitration under a statute to a court may be to it either as a court or as an arbitrator. If it is to it as a court, the decision is a judgment, decree or order appealable under the ordinary law unless the statute provides otherwise, while in the latter case the Court functions as a persona designata and its decision is air award not appealable under the ordinary law but only under the statute and to the extent provided by it. An appeal being essentially a continuation of the original proceedings, what *as at its inception an arbitration proceeding must retain its character as an arbitration proceeding even where the statute provides for an appeal, Rangoon Botatung Company v. The Collecter , Rangoon (1912) L.R. 39 I.A. 197 .The special officer sales the building sites Dassabhai Beznoji, (1912) I.L.R. 37 Bom 506 the special officer sales the Building sites v. Dassabhai Bozanji Motiwala (1913) 17 C.W.N. 421 Manavikram Tirumalpad v. the Collector of the Nilagrie, (1918) I.L.R. 41 Mad 943 and secretary of state for India in council v. Hindustan Co-operative Insurance society Limited ,(1931) L.R. 58 I. A 259 relied on. 1179. National Telephone Company Limited v. Postmaster-General, [1913] A. C. 546, explained. CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 224 and 225 of 1954. Appeals from the judgment dated December 31, 1947, of the former Nagpur High Court in Misc. (First) Appeal No. 310 of 1943, arising out of the Award dated March 31, 1943, of the Court of the Arbitrator, Addl. Dist. and Sessions Judge, Khandwa. Achhru Ram and Naunit Lal, for appellant (In C. A. No. 224/54) and respondent (In C. A. No. 225/54). C. K. Daphtary, Solicitor-General for India, R. Ganapathy Iyer and R. H. Dhebar, for respondent (In C. A. No. 224/54) and appellant (In C. A. No. 225/54). 1958. August 22. The Judgment of the Court was delivered by VENKATARAMA AIYAR J.-Both these appeals are directed against the judgment of the High Court of Nagpur passed in an appeal under s. 19(1) (f) of the Defence of India Act, 1939, hereinafter referred to as the Act. In exercise of the power conferred by s. 75(A) of the Rules framed under the Act, the Central Government requisitioned on February 19, 1941, certain properties belonging to Hanskumar Kishanchand, the appellant in Civil-Appeal No. 224 of 1954. As there was no agreement on the amount of compensation payable to him, the Central Government referred the determination thereof to Mr. Jafry, Additional District Judge, Khandwa, under s. 19(1) (b) of the Act. On March 31, 1943, Mr. Jafry pronounced his award, by which lie awarded a. sum of Rs. 13,000 as annual rent -for, the occupation of the premises. Against this award, there was an appeal to the High Court of Nagpur under s. 19(1) (f) of the Act, and that was heard by a Bench consisting of Grille C. J. and Padhve J. By their judgment dated December 31, 1947, they enhanced the annual rent payable to the appellant by a sum of Its. 3,250, and they also allowed certain other sums as compensation for dislocation of the High School which 150 1180 was being run on the property. The appellant applied for leave to appeal against this judgment to the Federal Court under ss. 109 and I 10 of the Code of Civil Procedure in respect of the amounts disallowed. A similar application was also filed by the Government with reference to the enhancement of compensation. On August 25, 1949, both these applications were granted, and a certificate was issued that the appeals fulfilled the requirements of ss. 109 and 110 of the Code of Civil Procedure. That is how the two appeals come before us. Hanskumar Kishanchand is the appellant in Civil Appeal No. 224 of 1954 and the Union of India, in Civil Appeal No. 225 of 1954. At the opening of the hearing, a preliminary objection was taken by the learned Solicitor-General to the maintainability of Civil Appeal No. 224 of 1954 on the ground that the judgment of the High Court passed in appeal under s. 19(1) (f) was an award and not a judgment, decree or order within the meaning of ss. 109 and 110 of the Code of Civil Procedure, and that accordingly the appeal was incompetent. If this contention is right, Civil Appeal No. 225 of 1954 preferred by the Government would also be incompetent. That, of course, does not preclude the Government from raising the objection as to the maintainability of the appeal, though the result of our upholding it would entail the dismissal of Civil Appeal No. 225 of 1954 as’ well. We accordingly proceed to dispose of the objection on the merits. It will be convenient at this stage to refer to the provisions of the Act bearing upon the present, controversy. Section 19(1) provides that: ” Where. any action is taken of the nature decribed in sub-section (2) of section 299 of the Government of India Act, 1935, there shall be paid compensation, the amount of which shall be determined in the manner, and in accordance with the principles, hereinafter set out.” Section 19(1) (a) provides for the amount of compensation being fixed by agreement, and s. 19(1) (b) enacts that : ” Where no such agreement can be reached, the Central Government shall appoint as arbitrator a 1181 person qualified under sub-section (3) of section 220 of the above-mentioned Act for appointment as a Judge of a High Court.” Sub-section (c) of s. 19(1) provides for the appointment by the Central Government of a person having expert knowledge as to the nature of the property acquired and for the nomination of an assessor by the person to be compensated, for the purpose of assisting the arbitrator. Sub-section (e) of s. 19(1) enacts that the arbitrator in making his award shall have regard to the provisions of sub-s. (1) of s. 23 of the Land Acquisition Act, 1894, so far as the same can be made applicable. Then comes sub-s. (f), which is important for the present purpose, and it is as follows: “An appeal shall lie to the High Court against an award of an arbitrator except in cases where the amount thereof does not exceed an amount prescribed in this behalf by rule made by the Central Government.” Then we have sub-s. (g), which is as follows: ” Save as provided in this section and in any rules made thereunder, nothing in any law for the time being in force shall apply to arbitrations under this section.” On these provisions, the contention on behalf of the Government is that the reference under s. 19(1),(b) and the appeal under s. 19(1) (f) are all arbitration proceedings, that the decision of the High Court in the appeal is really an award, and that it is, in consequence, not appealable under ss. 109 and 110 of the Code of Civil Procedure, as they apply only to judgments, decrees or orders of Courts and not to awards. Mr. Achbru Ram, learned counsel for the appellant does not dispute that the proceedings under s. 19(1) (b) are by way of arbitration, but he contends that when once the matter comes before the High Court by way of appeal under s. 19(1)(f), it becomes a civil proceeding under the ordinary jurisdiction of the Court, and that any decision therein is open to appeal under ss. 109 and I 10 of the Code of Civil Procedure. He further contends that even apart from those provisions, the appeal was competent under Cl. 29 of the Letters Patent, and that, 1182 the certificate granted by the High Court is under that provision as well. Before discussing the authorities cited on either side in support of their respective contentions, it will be useful to state the well_established principles applicable to the determination of the present question. When parties enter into an agreement to have their dispute settled by arbitration, its effect is to take the lis out of the hands of the ordinary Courts of the land and to entrust it to the decision of what has been termed a private tribunal. Such an agreement is not hit by s. 28 of the Contract Act as being in restraint of legal proceedings, because s. 21 of the Specific Relief Act expressly provides that ” save as provided by the Arbitration Act, 1940, no contract to refer present or future differences to arbitration shall be specifically enforced ; but if any person who has made such a contract . and has refused to perform it sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.” There is a similar provision in s. 28 of the Contract Act which is applicable, where the Arbitration Act is not in force. Where an arbitration is held in pursuance of such an agreement and that results in a decision, that decision takes the place of an adjudication by the ordinary Courts, and the rights of the parties are thereafter regulated by it. It is true that under the law the Courts have the authority to set aside the award,-, made by arbitrators on certain grounds such as that they are on matters not referred to arbitration, or that the arbitrators had misconducted themselves, or that there are errors apparently the face of the award. But where the award is not open to any such objection, the Court has to pass a decree in terms of the award, and under s. 17 of the Arbitration Act, an appeal lies against such a decree only on the ground that it is in excess of, or not otherwise in accordance with the award. In other words, it is the decision of the arbitrator where it is not set aside that operates as the real adjudication binding on the parties, and it is with a view to its enforcement that the, Court ‘is authorised to pass a decree in terms thereof. There is thus a sharp distinction between a 1183 decision which is pronounced by a Court in a cause which it hears on the merits, and one which is given by it in a proceeding for the filing of an award. The former is a judgment, decree or order rendered in the exercise of its normal jurisdiction as a Civil Court, and that is appealable under the general law as for example, under ss. 96, 100, 104, 109 and 110 of the Code of Civil Procedure. The latter is an adjudication of a private tribunal with the imprimatur of the Court stamped on it, and to the extent that the award is within the terms of the reference, it is final and not appealable. The position in law is the same when the reference to arbitration is made not under agreement of parties but under provisions of a statute. The result of those provisions again is to withdraw the dispute from the jurisdiction of the ordinary courts and to refer it for the decision of a private tribunal. That decision is an award, and stands on the same footing as an award made on reference, under agreement of parties. It is for this reason that s. 46 of the Arbitration Act X of 1940 enacts that: ” The provisions of this Act, except subsection (1) of section 6 and sections 7, 12, 36 and 37 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that, other enactment were an arbitration agreement; except in so far as this Act is inconsistent with that, other enactment or with any rules made thereunder. ” Nor does it make any difference in the legal position that the reference under the statute is to a Court as arbitrator. In that case, the Court hears the matter not as a Civil Court but as persona designata, and its decision will be an award not open to appeal under the ordinary law applicable to decisions of Courts. A statute, however, might provide for the decision of a dispute by a Court as Court and not as arbitrator, in which ease, its decision will be a decree or order of Court in its ordinary civil jurisdiction, and that will attract the normal procedure governing the decision of that Court, and a right of appeal will be comprehended therein. The position therefore is that if the 1184 reference is to a Court as persona designata, its decision will not be open to appeal except to the extent that the statute so provides; but that if, on the other hand, it is to a Court as Court, its decision will be appealable under the general law, unless there is something in the statute, which abridges or takes away that incident. It may be a question whether the reference to a Court under a particular statute is to it as a Court or as persona designata ; but when once it is determined that it is to it as persona designata, there call be no question that its decision is not open to appeal under the ordinary law. We shall now consider the authorities hearing on the question. On behalf of the Government, the decisions in Rangoon Botatoung Company v. The Collector, Rangoon (1), The Special Officer, Salsette Building Sites v. Dossabhai Bezonji (2), The Special Officer, Salsette Building Sites v. Dassabhai Bozanji Moti. wala (3), Manavikraman Tirumalpad v. The Collector of the Nilgris (4) and Secretary of State for India in Council v. Hindusthan Co-operative Insurance Society Limited (5) were relied on as supporting the contention that the present appeals are incompetent. In Rangoon Botatoung Company v. The Collector, Rangoon (1), the facts were that certain properties had been acquired tinder the Land Aequistion Act of 1894, and the Collector had determined the amount of compensation payable to the quondam owners. On their objection as to the quantum of compensation, the matter was referred to the decision of the Chief Court of Burina. It was heard by a Bench of two Judges, who determined that a sum of Rs. 13,25,720 was payable as compensation. Dissatisfied with this decision, the owners preferred an appeal to the Privy Council under the provisions of tile Code of Civil Procedure. A pre- limilary objection was taken to the maintainability of the appeal on the ground that the decision sought to be appealed against was not a judgment of Court but an award and was therefore not appealable. In giving effect to this objection, the Board observed: ” Their Lordships cannot accept the argument or (1) (1912) 39 I.A. 197. (2) (1912) I.L.R. 37 Bom. 506. (3) (1913) 17 C.W.N. 421. (4) (1918) I.L.R. 41 Mad. 943. (5) (193I) L.R. 58 I.A. 259. 1185 suggestion that when once the claimant is admitted to the High Court he has all the rights of an ordinary suitor, including the right to carry an award made in an arbitration as to the value of land taken for public purposes up to this Board as if it were a decree of the High Court made in the course of its ordinary jurisdiction. ” Shortly after this judgment was pronounced, the question arose for determination in The special officer, Salsette Building Sites v. Dossabhai Bezonji (1), whether a decision given by the High Court in appeal under s. 54 of the Land Acquisition Act was a judgment within Cl. 39 of the Letters Patent, so as to enable a party to appeal to the Privy Council under that provision. The applicant sought to distinguish the decision in Rangoon Botatoung Company v. The Collector, Rangoon (2) on the ground that there, the decision sought to be appealed against was that of the Chief Court of Burma, and the question of maintainability fell to be decided on the terms of the, Code of Civil Procedure, whereas in the instant case, the party had a right to appeal to the Privy Council under Cl. 39 of the Letters Patent. In rejecting this contention, the High Court referred to the observations in Rangoon Botatoung Company’s Case (2) already quoted, and observed ” This passage shows that it is a mistake to suppose that the award made in such a case by the High Court is a decree within the ordinary jurisdiction to which the Civil Procedure (“‘ode refers; and it seems to me it would be equally erroneous to regard such an award as a final judgment or order within the meaning of clause 39 of the Letters Patent. ” Leave to appeal to the Privy Council was accordingly refused. There was an application to the Privy Council for special leave in this matter, but that was also rejected, and the report of the proceedings before the Privy Council in The special Officer, salsette Building Sites v. Dassabhai Basanji Motiwala (3)shows that the interpretation put by the Bombay High Court in The Special officer, salsette Building sites v. Dossabhai Bezonji (1) was accepted as correct. In Manavikraman Tirumalpad v. The Collector of the (1) (1912) I.L.R. 37 130m 506. (2) (1912) L.R. 39 I.A. 197. (3) (1913) 17 C.W.N.42I. 1186 Niligris(1) the question was whether a judgment of the High Court passed in an appeal under the Land Acquisition Act was a judgment within the meaning of Cl. 15 of the Letters Patent so as to entitle a party to file a further appeal to the High Court under that provision, and it was held, on a consideration of the authorities above referred to, that it was not. Secretary of State for India in Council v. Hindusthan Cooperative Insurance Society Limited (2) is a decision under the Calcutta Improvement Act, 1911. Under that Act, there is a tribunal constituted for determining the amount of compensation payable on acquisition of land, and under the Calcutta Improvement (Appeals) Act, 1911, an appeal is provided in certain cases from the decision of the tribunal to the Calcutta High Court. The point that arose for determination was whether the decision given by the High Court in appeal under this provision was open to further appeal to the Privy Council. In answering it ill the negative, the Privy Council observed that in view of the decision in Rangoon Botatoung Company v. The Collector, Rangoon (3), there could be no right of appeal against the decision of the High Court. It further held that this conclusion was not affected by the amendment of the Land Acquisition Act, 1921, providing for an appeal to the Privy Council against the decision of the High Court under s. 54 of that Act, as that amendment could not be held to have been incorporated by reference in the Calcutta Improve- ment Act, 1911. The law as laid down in the above authorities may thus be summed up: It is not every decision given by a Court that could be said to be a judgment, decree or order within the provisions of the Code of Civil Procedure or the Letters Patent. Whether it is so or not will depend on whether tile proceeding in which it was given came before tile Court in its normal civil jurisdiction, or de hors it as a persona designata. Where the dispute is referred to the Court for determination by way of arbitration as in Rangoon Botatoung Company v. The Collector, Rangoon (3), or where it comes (1) (1918) I.L.R 41 Mad. 943. (2) (1931) L.R. 58 I.A. 259. (3) (1912) L.R. 39 I.A. 197. 1187 by way of appeal against what is statedly an award as in’ The Special Officer, Salsette Building Sites v. Dossabhai Bezonji (1), Manavikraman Tirumalpad v. The Collector of the Nilgris (2) and Secretary of State for India in Council v. Hindusthan Co-operative Insurance Society Limited (3) then the decision is not a judgment, decree or order under either the Code of Civil Procedure or the Letters Patent. Now, Mr. Achhru Ram contests this last proposition, and relies strongly on the decision in National Telephone Company Limited v. Postmaster-General (4), as supporting his position. There, the question arose on the construction of certain provisions of the Telegraph (Arbitration) Act, .1909. Section I thereof enacted that certain differences between the Postmaster-General and any other person should, if the parties agreed, be referred for decision to the Railway and Canal Commission constituted under an Act of 1888 ; and s. 2 provided that all enquiries under the reference should be conducted by the Commission in accordance with the Act of 1888. Pursuant to a reference under these provisions, the Railway and Canal Commission had determined certain disputes, and the question was whether its decision was open to appeal. Under the Act of 1888, the Commission was constituted a Court of record and an appeal lay against its decision to the Court of Appeal except on questions of fact and locus standi. It was held by the House of Lords that as under the Act of 1888 the reference to the Commission was to it as a Court, the reference under the Telegraph (Arbitration) Act, 1909, to that tribunal must also be held to be to it as a Court and not as a body of arbitrators, and an appeal against its decision was therefore competent. The position was thus stated by Viscount Haldane L. C.: ” When a question is stated to be referred to an established Court without more, it, iii my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches.” (1) (1912) I.L.R. 37 Bom. 5o6. (2) (1918) I.L.R. 41 Mad. 943. (3) (1931) L.R. 58 I.A. 259. (4) [1913] A.C. 546. 151 1188 It may be noted that it was the use of the word ” arbitration ” in the title to the Act that furnished the ground for the contention that the proceedings before the Commission were of the nature of arbitration. But that description, however, could not alter the true character of the reference under the Act, which was in terms to the Commission as a Court of record. In fact, there was no element of arbitration in the -proceedings. It is true that under that Act there could be a reference only by agreement of parties. That, however, could not make any difference in the character of the proceedings before the Commission, as a statute can provide for the jurisdiction of the Court being invoked as a Court on the agreement of parties, as for example, on a case stated under Order 36 of the Code of Civil Procedure. There is thus nothing in National Telephone Company Limited v. Postmaster-General (1), which can be said to conflict with the law as laid down in Rangoon Botatoung Company v. The Collector, Rangoon. (2) that when the reference is to a Court as arbitrator, its decision is not open to appeal. The distinction between the two classes of cases, where the reference is to court as court and where the reference is to it as arbitrator, was again pointed out by the Privy Council in Secretary of State for India v. Chelikani Rama Rao (3). There, the question arose with reference to certain provisions of the Madras Forest Act, 1882. That Act provides that claims to lands which are. sought to be declared reserved forests by the Government are to be enquired into by the Forest Settlement Officer, and an appeal is provided against his decision to the District Court. The point for decision was whether the decision of the District Court was open to further appeal under the provisions of the Code of Civil Procedure. The contention was that the reference to the District Court under the Act was to it not as a Court but as arbitrator, and that therefore its decision was not open to appeal on the -principle laid down in Rangoon Botatoung Company’s Case In repelling this contention, (1) [1913] A.C. 546. (2) (1912) L.R. 39 I.A. 197. (3) (1916) L.R. 43 I.A, 192. 1189 Lord Shaw observed that under the Land Acquisition Act the proceedings were ,from beginning to end ostensibly and actually arbitration’ proceedings “, but that the proceedings under the Forest Act were essentially different in character. ” The claim was ” he said, ” the assertion of a legal right to possession of and property in land; and if the ordinary Courts of the country are seized of a dispute of that character, it would require, in the opinion of the Board, a specific limitation to exclude the ordinary incidents of litigation” The principles being thus well-settled, we have to see in the present case whether an appeal to the High Court under s. 19(1)(f) of the Act comes before it as a Court or as arbitrator. Under s. 19(1)(b), the reference is admittedly to an arbitrator. He need not even be a Judge of a Court. It is sufficient that he is qualified to be appointed a Judge of the High Court. And under the law, no appeal would have lain to the High Court against the decision of such an arbitrator. Thus, the provision for appeal to the High Court under s. 19(1)(f) can only be construed as a reference to it as an authority designated and not as a Court. The fact that, in the present case, the reference was to a District Judge would not affect the position. Then again, the decision of the arbitrator appointed under s. 19(1)(b) is expressly referred to in s. 19(1)(f) as an award. Now, an appeal is essentially a continuation of the original proceedings, and if the proceedings under s. 19(1)(b) are arbitration proceedings, it is difficult to see how their character can suffer a change, when they are brought up before an appellate tribunal. The decisions in The Special Officer, Salsette Building Sites v. Dossabhai Bezonji (1), The Special Officer, Salsette Building Sites v. Dassabhai Basanji Motiwala (2), Manavikraman Tirumalpad v. The Collector of the Nilgris (3) and Secretary of State for India in Council v. Hindusthan Co-operative Insurance Society Limited (4) proceed all on the view that an appeal against an award continues to be part of, and a (1) (1912) I.L.R. 37 Bom. 506. (2) (1913) 17 C.W.N. 421. (3) (1918) I.L.R. 41 Mad. 943. (5) (1931) L.R. 58 I.A. 259. 1190 further stage of the original arbitration proceedings. ln our view, a proceeding which is at the inception an arbitration proceeding must retain its character :as arbitration, even when it is taken up in appeal, where that is provided by the statute. The question whether an appeal under s. 19(1)(f) is of the nature of arbitration proceedings, and whether the decision given therein is an award came up directly for consideration in Kollegal Silk Filatures Ltd. v. Province of Madras (1) before a Bench of the Madras High Court consisting of Patanjali Sastri and Chandrasekhara Aiyar JJ. and it was held by them that the word “arbitration” in s. 19(1)(g) of the Act covered the entire proceedings from their com- mencement before the arbitrator to their termination in the High Court on appeal where an appeal had been preferred, and the High Court in hearing and deciding the appeal acted essentially as- an arbitration tribunal. We agree with this decision that the appeal under s. 19(1) (f) is an arbitration proceeding. We must therefore hold that the decision of the High Court in the appeal under that provision is not a judgment, decree or order either within ss. 109 and I 10 of the Code of Civil Procedure or cl. 29 of the Letters Patent of the Nagpur High Court, which corresponds to cl. 39 of the Letters Patent of the Calcutta, Madras and Bombay High Courts, and that, therefore, the present appeals are incompetent. Mr. Achbru Ram finally contended that even if no appeal lay under ss. 109 and 110 of the Code of Civil Procedure or cl. 29 of the Letters Patent, it was, nevertheless within the competence of this Court to grant leave to appeal, and that this was a fit case for the grant of such leave. He argued that the Privy Council had the power to grant leave to appeal against the decision of the Nagpur High Court in the appeal under s. 19(1) (f), that under s. 3(a)(ii) of the Federal Court (En. largement of Jurisdiction) Act I of 1948 that power became vested in the Federal Court, and under Art. 135 it has devolved on this Court, and that in the exercise of that power we should grant leave to appeal against (1) I.L.R. [1948] Mad. 490. 1191 the decision now under challenge. it is sufficient answer to this contention that the Federal Court had power under s. 3(a) (ii) to grant leave only when the proposed appeal was against a judgment, and that, under the definition in s. 2(b), meant a judgment, decree or order of a High Court in a civil case; and that on our conclusion that the decision in the appeal under s. 19(1) (f) is not a judgment, decree or order but an award, no order could have been passed granting special leave under s. 3(a) (ii). In the result, we dismiss both the appeals as incompetent. The parties will bear their own costs in this Court. Appeals dismissed. Section 10(1) of the Industrial Disputes Act, 1947, does not confer on the appropriate Government the power to cancel or supersede a reference made thereunder in respect of an industrial dispute pending adjudication by the tribunal constituted for that purpose. Nor can s. 21 of the General Clauses Act, 1897, vest such a power by necessary implication. It is well settled that the rule of construction embodied in S. 21 of the General Clauses Act can apply to the provisions of a statute only where the subject matter, context and effect of such provisions are in no way inconsistent with such application. So judged it is clear that that section cannot apply to s. 10(1) of the Industrial Disputes Act. Minerva Mills Ltd. v. Their Workmen, [1953] INSC 56; [1954] S. C. R. 465, held inapplicable. 1192 Strawboard Manufacturing Co. Ltd. v. Gutta Mill Workers’ Union, [1952] INSC 77; [1953] S. C. R. 439, explained. The Textile Workers’ Union, Amritsar v. The State of Punjab and others, A. I. R. 1957 pun. 255 and Hayendranath Bose v. Second Industrial Tribunal, [1958] 2 L.L.J. 198, overruled. South Indian Estate Labour Relations Organisation v. The State of Madras, A.I.R. 1955 Mad. 45, distinguished. Consequently, where the appropriate Government by two notifications, issued one after the other, referred two industrial disputes between two batches of workmen and their employer for adjudication to the industrial tribunal constituted for that purpose and, thereafter, by a third notification superseded the two earlier notifications and the High Court, on the applications of both the workmen and the employer under Arts. 226 and 227 of the Constitution, issued a writ of certiorari quashing that notification and by a writ of mandamus required the tribunal to proceed expeditiously with the two references and the State Government appealed: Held, that the impugned notification was invalid and ultra vires’and the finding of the High Court must be affirmed. Held, further, that since a reference under s. 10(1) of the Industrial Disputes Act was in the nature of an administrative act, the more appropriate writ to issue would be one of mandamus and not one in the nature of certiorari. The State of Madras v. C. P. Sarathy, [1953] S. C. R. 334, referred to. CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 358 and 359 of 1957. Appeals by special leave from the judgment and decree dated April 4, 1956, of the Patna High Court in M. J. C. Nos. 546 and 590 of 1955. J. N. Banerjee and R. C. Prasad, for the appellant (In both appeals). Basanta Chandra Ghose I and P. K. Chatterjee, for respondents Nos. 1-10 & 12-57 in C. A. No. 358/57. M. C. Setalvad, Attorney-General of India, Nooni Chakraverty and B. P. Maheshwari, for respondent No. 59 in C A. No. 358/57 and Respdt. No. 1 in C. A. No. 359/57. R.Patnaik, for respondent No. 63 in C.A. No. 359/57. 1958. August 22. The Judgment of the Court was delivered by 1193 GAJENDRAGADKAR J.-Where an industrial dispute has been referred to a tribunal for adjudication by the appropriate government under s. 10 (1) (d) of the Industrial Disputes Act, 1947, (XIV of 1947), can the said government supersede the said reference pending adjudication before the tribunal constituted for that purpose ? That is the short question which falls to be considered in these two appeals by special leave. The question arises in this way: On October 8, 1954, by Notification No. III/DI-1602 /54-L-15225, the government of Bihar referred an industrial dispute between the management of the Bata Shoe Co. Ltd., Digbaghat (Patna), and their 31 workmen, mentioned in annexure I A’, in exercise of the powers conferred on the said government by s. 7 read with s. 10(1) of the Act. The dispute was whether the dismissal of the workmen in question was justified; if not, whether they were entitled to reinstatement or any other relief For the adjudication of this dispute, an industrial tribunal with Mr. Ali Hassan as the sole member was consti- tuted. This was reference No. 10 of 1954. Then, on January 15,1955, by Notification No. III/DI-1601/55 L. 696, a similar industrial dispute between the same Bata Company and its 29 other workmen was referred by the government of Bihar to the same tribunal. This was reference No. I of 1955. While the proceedings in respect of the two references, which had been consolidated by the tribunal, were pending before it and had made some progress, the government of Bihar issued a third Notification No. III/Di-1601/55-L-13028 on September 17, 1955, by which it purported to supersede the two earlier notifications, to combine the said two disputes into one dispute, to implead the two sets of workmen involved in the two said disputes together, to, add the Bata Mazdoor ‘Union to the dispute, and to refer it to the adjudication of the industrial tribunal of Mr. Ali Hassan as the sole member. The dispute thus referred to the . tribunal was, ” Whether the dismissal of the 60 workmen, mentioned in annexure ‘B’, was justified or unjustified; and to what relief, if any, those workmen are entitled ?” On receipt of this notification, the tribunal passed an 1194 order on September 19, 1955, cancelling the hearing of the two prior references which had been fixed for October 3, 1955, and directing that the files of the said references should be closed. The Bata Company and its workmen then filed two separate applications before the High Court of Judicature at Patna under articles 226 and 227 of the Constitution and prayed that the last notification should be quashed as being illegal and ultra ‘vires. These. two applications were numbered as M. J. C. Nos. 546 and 590 of 1955 respectively. On April 4, 1956, the High Court held that the government of Bihar had no power or authority to supersede the earlier notifications, allowed both the applications and issued a writ in the nature of certiorai quashing the impugned notification of September 17, 1955, and also a writ in the nature of mandamus requiring the industrial tribunal to proceed expeditiously with reference-cases Nos. 10 of 1954 and I of 1955 and to -bring them to a conclusion in accordance with law. Against this order the government of Bihar applied for and obtained leave from this court on June 26, 1956. That is how the two present appeals have come for disposal before US. In both the appeals, the appellant is the State of Bihar and. the respondents are the Bata Company and its workmen respectively. On behalf of the appellant, it is urged before us that the High Court at patna was in error in holding that the government of Bihar had no power or authority to set aside the two earlier notifications and to refer the dispute in question for adjudication to the industrial tribunal under s. 10(1) of the Act. In order to appreciate the background of the, impugned notification, it would be relevant, to mention some material facts. It appears that the workmen of the company’s factory at Digha formed a, union at the close of the last World War. The president of the said union was Mr. John and its general secretary was Mr. Fateh Narain Singh. -On June 22, 1947, the company entered into a collective agreement with the said -union and by mutual consent the Standing Orders and 1195 Rules, certified under the Industrial Employment (Standing Orders) Act of 1946, were settled. The union was recognised as the sole and exclusive collective bargaining agency for the workmen of the company. Towards the end of 1954, two groups of the union were formed and rivalry grew between them. One group was led by Mr. Fateh Narain Singh and other by Mr. Bari. On January 22, 1954, the union’ through its general secretary Mr. Fateh Narain Singh served on the company a ” slow down notice ” with effect from February 24, 1954, and on February 6, 1954, Mr. Bari purporting to act as the president of the union asked his followers to go on strike as from February 23, 1954. The demands made by Mr. Fateh Narain Singh gave rise to conciliation proceedings under the Act and ended in the settlement which was duly recorded on February 8, 1954. In spite of the said settlement some workmen, including the sixty workmen in question who supported Mr. Bari, went on an illegal strike on February 23, 1954, although as members of the union they were bound by the ,settlement. The majority of the workmen were opposed to the strike and in fact on February 16, 1954, a letter signed by 500 workmen who dis-associated themselves from the strike, was received by the company. The company was requested to make suitable arrangements to enable these workmen to attend their duties. The strike succeeded only partially because out of 854 workmen employed in the company’s factory at Digha nearly 500 workmen attended the factory in spite of the threats of the strikers. The strike was declared illegal by the appellant under s. 23 (c) of the Act. Subsequently, the company served the strikers with charge-sheets and in the end, 274 workmen, including the sixty workmen in question, were dismissed from service by the company. Thereafter the union entered into negotiations with the company, as a result of which it was agreed that 110 strikers would be employed by the company in the same manner in which 76 strikers had already been employed by it. It was further 152 1196 agreed that 30 strikers were to remain dismissed and not considered eligible for employment or for any benefits. In regard to the remaining 30 strikers, the company agreed to consider their cases later on for reemployment. During these negotiations, the sixty workmen in question did not make any demand to the management for reinstatement either individually or collectively. nor was their case raised by any other Organisation or body of workmen. In the result, so far as the union was concerned the dispute regarding the whole body of strikers who had been dismissed by the company came to an end by virtue of, the agreement between the company and the union. Notwithstanding this agreement, Mr. Sinha, the conciliation officer, wrote to the company on September 3, 1954, that he desired to hold conciliation proceedings inrespectof,some of the dismissed workmen. The dispute raised by the sixty workmen was not sponsored by any Organisation or body of workmen. In fact the secretary of the union wrote to the Commissioner of Labour on September 22, 1954, that he strongly objected to the alleged dispute of sixty workmen being referred to adjudication. It was under these circum- stances that the appellant issued the first two notifica- tions on October 8, 1954 and January 15, 1955. On May 30, 1955, the union made an application before the tribunal alleging that the’ majority of the workmen were opposed to the reinstatement of the sixty workmen in question and consequently it had interest in the proceedings before the tribunal. Two applications were made before the tribunal by other workmen to be joined to the proceedings on the ground that they were opposed to the reinstatement of the workmen whose cases were pending before the tribunal. All these applications were rejected by the tribunal. It would appear that Mr. Fateh Narain Singh then moved the Department of Labour Government of Bihar, and it was apparently pursuant to the representation -made by him that the third notification was issued by the appellant superseding the first two notifications and referring the whole dispute afresh to the 1197 industrial tribunal with the union of Mr. Fateh Narain Singh added as a party to the proceedings. That in brief is the genesis of the impugned notification in the present case. Dr Bannerjee for the appellant has urged before us that in dealing with the question about the powers of the appropriate government under s. 10(1) of the Act, it would be necessary to bear in mind the facts which led to the cancellation of the first two notifications and the issue of the third impugned notification. He contends that in issuing the third notification the appellant has acted bona fide and solely in the interests of fair-play and justice ; it came to the. conclusion that it was necessary that the union should be heard before the disputes in question are. adjudicated upon by the Industrial Tribunal and that it would be more convenient and in the interest of industrial peace and harmony that the dispute should be referred to .the tribunal’in a more comprehensive and consolidated form bringing before the tribunal all the parties interested in it. In our opinion, the bona fides of the appellant on which reliance is placed by Dr. Banerjee are really not: relevant for determining the appellant’s ‘powers under s. 10(1) of the Act. If the appellant has authority to cancel the notification issued under s. 10(1), and if the validity of the cancelling notification is challenged on the ground of mala fides, it may be relevant and material to inquire into the motives of the appellant. But if the appellant has no authority to cancel or revoke a notification issued under s. 10(1), the bona fides of the appellant can hardly validate the impugned cancellation. That is why, we think, the appellant cannot base its arguments on the alleged bona fides of its conduct. it is conceded by Dr. Bannerjee that the Act does not expressly confer any power on the appropriate government to cancel or supersede a reference made under s. 10(1) of the Act. He,-however, argues that the power to cancel or supersede such a reference must be hold to be implied, and in support of his argument he relies on the, provisions of s. 21 of the General Clauses Act, 1897 (X of 1897). Section 21 provides 1198 that ” where, by any Central Act or Regulation, a. power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or byelaws so issued “. It is well settled that this section embodies a rule of construction and the question whether or not it applies to the provisions of a particular statute would depend on the subject-matter, context, and the effect, of the relevant provision,% of the said statute. In other words it would be necessary to examine carefully the scheme of the Act, its object and all its relevant and material provisions before deciding whether by the application of the rule of construction enunciated by s. 21, the appellant’s contention is justified that the power to cancel the reference made under s. 10(1) can be said to vest in the appropriate government by necessary implication. If we come to the conclusion that the context and -effect of the relevant provisions is repugnant to the application of the said rule of construction, the appellant would not be entitled to invoke the assistance of the said section. We must, therefore, proceed to examine the relevant provisions of the Act itself. It is clear that the policy of the Act is to secure and preserve good relations between the employers and their workmen and to maintain industrial peace and harmony. It is with this object that s. 3 of the Act contemplates the establishment of the Works Committees whose duty it is to promote measures for securing and preserving amity and good relations between the employers and the workmen. If the Works Committee is unable to settle the disputes &rising between the employer and his workmen, conciliation officers and the boards of conciliation offer assistance to the parties to settle their disputes. Sections 3, 4, 5, 12 and 13 refer to the working of this machinery contemplated by the Act. It is only where the conciliation machinery fails to bring about settlement between the parties that the Act contemplates compulsory adjudication of the industrial disputes by labour courts and 1199 tribunals as the last alternative. The appropriate government is authorised to constitute labour courts and tribunals under and subject to the provisions of a. 7 and s. 7A respectively. It is in respect of the compulsory adjudication that under s. 10, the appropriate government is given wide discretion to decide whether or not the dispute between the employer and his employees should fie referred to the board, court or’ tribunal. Section 10 (1) (d) provides inter alia that where the appropriate government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing refer the dispute to a tribunal for adjudication. The condition precedent for the reference to the industrial tribunal is that the appropriate government must be satisfied that an industrial dispute exists or is apprehended. It is not in every case where the parties allege the existence of an industrial dispute that a reference would be made under s. 10 (1); it is only where the test of subjective satisfaction of the appropriate government is satisfied that the reference can be made. Thus it is clear that the appropriate government is given an important voice in the matter of permitting industrial disputes to seek adjudication by reference to the industrial tribunal. But once an order in writing is made by the appropriate government referring an industrial dispute to the tribunal for adjudication under s. 10 (1), proceedings before the tribunal are deemed to have commenced and they are deemed to have concluded on the day on which the award made by the tribunal becomes enforceable under s. 17A. This is the effect of s. 20(3) of the Act. This provision shows that after the dispute is referred to the tribunal, during the continuance of the reference proceedings, it is the tribunal which is seized of the dispute and which can exercise jurisdiction in respect of it. The appropriate government can act in respect of a reference pending adjudication before a tribunal only under s. 140(5) of the Act, which authorises it to add other parties to the pending dispute subject to the conditions mentioned in the said provision. It would therefore be reasonable to hold that except for cases 1200 falling under s. 10(5) the appropriate government stands outside the reference proceedings, which are under the control and jurisdiction of the tribunal itself. Even after the award is made it is -obligatory on I the appropriate government under S. 17(1) to publish the said award within a period of thirty, -days from the date of its receipt by the, appropriate government. ‘Sub-section (2) of s. 17 says that subject to the provisions of s. 17A, the award published under (1) of s. 17 shall be final and shall not be called in question by any court in any manner whatsoever Section 19(3) provides that an award shall, subject to the other pro- visions of s. 19, remain in operation for a period of one year from the date on which it becomes emforceable under s. 17A. It is true that as. 17A and 19 confer on the appropriate government powers to modify the provisions of the award or limit the period of its: operation but it is unnecessary to refer to these provisions in detail. The scheme of the- provisions. in Chapters III and IV of the Act would thus appear to be . to leave the reference proceedings exclusively within the jurisdiction of the tribunals -constituted under the :Act and to make the awards,of such tribunals binding between the parties, subject to the special powers conferred of the appropriate government under -as. 17A and 19. The appropriate government undoubtedly has the initiative in the matter. It is only where it makes an order in writing refering an industrial dispute to the adjudication of the tribunal that the reference proceedings can commence but the scheme of the relevant provisions would prima -facie seem to be inconsistent with any power in the appropriate government to cancel the reference made under s. 10 (1). The power claimed by the Happening to cancel a reference made unders. 10(1) seems also to be inconsistent with some other provisions of the Act. The proviso to s. 10 lays down that the appropriated government shall refer a dispute relating to the public utility service when a notice under s. 22 has been given, unless it considers that the notice has been frivolously or vexatiously given, or that it would be inexpedient so to refer the dispute. This proviso, indicates that in regard 1201 to a dispute relating to public utility concerns normally the government is expected to refer it for adjudication. In such a case if’ the government makes the reference it is difficult to appreciate that it would be open to the government pending the proceedings of the said reference before the Industrial Tribunal to cancel the reference and supersede its original order in that behalf. Section 10, sub-s. (2) deals with the case where’ the parties to are industrial dispute apply to the appropriate government in the prescribed manner, either jointly or separately, for a reference of the dispute to the appropriate authority, and it provides that in such a case if the appropriate government is satisfied that the persons applying represent the majority of each party it shall make the reference accordingly. ln such a case all that the government has to satisfy itself about is the fact that the, demand for reference is made by the majority of each party, and once this condition is satisfied, the government is under obligation to refer the dispute for industrial adjudication. It is inconceivable that in such a case the government can claim power to cancel a reference made under s. 10(2). Indeed in the course of his arguments, Dr. Banerjee fairly conceded that it would be difficult to sustain a claim for an implied power of cancellation in respect of a reference made under s. 10(2). There is another consideration which is relevant in dealing with this question. Section 12 which deals with the duties of the conciliation officer, provides in substance that the conciliation officer should try his best to bring about settlement between the parties. If no settlement is arrived at, the conciliation officer has to make a report to the appropriate government, as provided in sub-s. (4) of s. 12. This report must contain a full statement of the relevant facts and circumstances and the reasons on account of which in the opinion of the officer the settlement could not be arrived at. Sub-section (5) then lays down that if, on a consideration of the report, the appropriate government is satisfied that there is a case for reference to a board, labour court, tribunal or national tribunal, it may make such a reference. Where the appropriate 1202 government does not make such a reference it shall record and communicate to the parties concerned its reasons therefor. This provision imposes on the appropriate government an obligation to record its reasons for not making a reference after receiving a report from the conciliation officer and to communicate the said reasons to the parties concerned. It would show that when the efforts of the conciliation officer fail to settle a dispute, on receipt of the conciliation officer’s report by the appropriate government, the government would normally refer the dispute for adjudication ; but if the government is not satisfied that a reference should be made, it is required to communicate its reasons for its decision to the parties concerned. If the appellant’s argument is accepted, it would mean that even after the order is made by the appropriate government under s. 10(1), the said government can cancel the said order without giving any reasons. This position is clearly inconsistent with the policy underlying the provisions of s. 12(5) of the Act. In our opinion, if the legislature had intended to confer on the appropriate government the power to cancel an order made under s. 10(1), the legislature would have made a specific provision in that behalf and would have prescribed appropriate limitations on the exercise of the said power. It is, however, urged that if a dispute referred to the industrial tribunal under s. 10(1) is settled between the parties, the only remedy for giving effect to such a compromise would be to cancel the reference and to take the proceedings out of the jurisdiction of the industrial tribunal. This argument is based on the ,assumption that the industrial tribunal would have to ignore tile settlement by the parties of their dispute pending before it and would have to make an award on the merits in spite of the said settlement. We are not satisfied that this argument is well-founded. It is true that the Act does not contain any provision specifically authorising the industrial tribunal to record a compromise and pass an award in its terms corresponding to the provisions of O. XXIII, r. 3 of the Code of Civil Procedure. But it would be very 1203 unreasonable to assume that the industrial tribunal would insist upon dealing with the dispute on the merits even after it is informed that the dispute has been amicably settled between the parties. We have already indicated that amicable settlements of industrial disputes which generally lead to industrial peace and harmony are the primary object of this Act. Settlements reached before the conciliation officers or( boards are specifically dealt with by ss. 12(2) and 13(3) and the same are made binding under s. 18. There can, therefore, be no doubt that if an industrial dispute before a tribunal is amicably settled, the tribunal would immediately agree to make an award in terms of the settlement between the parties. It was stated before us at the bar that innumerable awards had been made by industrial tribunals in terms of the settlements between the parties. In this connexion we may incidentally refer to the provisions of s. 7 (2)(b) of the Industrial Disputes (Appellate Tribunal) Act, 1950 (XLVIII of 1950), which expressly refer to an award or decision of an industrial tribunal made with the consent of the parties. It is true that this Act is no longer in force; but when it was in force, in providing for appeals to the Appellate Tribunal set up under the said Act, the legislature had recognised the making of awards by the industrial tribunals with the consent of the parties. Therefore, we cannot accept the argument that cancellation of reference would be necessary in order to give effect to the amicable settlement of the dispute reached by the parties pending proceedings before the industrial tribunal. In this connexion it may be relevant to refer to some other provisions of the Act, which impose restrictions on the parties (luring the pendency of the reference proceedings. Under s. 10(3), where an industrial dispute has been referred to an industrial tribunal, the appropriate government may by order prohibit the continuance of any strike or lock-out in connexion with such dispute which may be in existence on the date of the reference. Similarly, under s. 33, during the pendency of the proceedings before an industrial tribunal, no employer shall (a) in regard to any matter connected with the dispute, alter, to the prejudice 153 1204 of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. Failure to comply with the provisions of s. 33(1) is made punishable under s. 31 of the Act. These provisions show that during the pendency of the proceedings before the industrial tribunal the parties to the dispute are expected to maintain status quo and not to take any action which would disturb industrial peace or prejudice a fair trial before the industrial tribunal. If the power to cancel a reference made under s. 10 (1) is held to be implied, the proceedings before the industrial tribunal can be terminated and superseded at any stage and obligations and liabilities incurred by the parties during the pendency of the proceedings would be materially affected. It is because all these provisions are intended to operate as a self-contained Code governing the compulsory adjudication of industrial disputes under the Act, that s. 15 enjoins upon the industrial tribunals to hold their proceedings expeditiously and to submit their awards as soon as it is practicable on the conclusion of the proceedings to the appropriate government. Thus time is usually of essential importance in industrial adjudications and so the Act imposes an obligation on the industrial tribunals to deal with their proceedings as expeditiously as possible. If the appropriate government has by implication the power to cancel its order passed under s. 10(1), the proceedings before the industrial tribunal would be rendered wholly ineffective by the exercise of such power. Apart from these provisions of the Act, on general principles it seems rather difficult to accept the argument that the appropriate government should have an implied power to cancel its own order made under s. 10(1). If on the representation made by the employer or his workmen the appropriate government considers the matter fully and reaches the conclusion that an 1205 industrial dispute exists or is apprehended and then makes the reference under s. 10(1), there appears to be no reason or principle to support the contention that it has an implied power to cancel its order and put an end to the reference proceedings initiated by itself In dealing with this question it is important to bear in mind that power to cancel its order made under s. 10(1), which the appellant claims, is an absolute power; it is not as if the power to cancel implies the obligation to make another reference in respect of the dispute in question ; it is not as if the exercise of the power is subject to the condition that reasons for cancellation of the order should be set out. If the power claimed by the appellant is conceded to the appropriate government it would be open to the appropriate government to terminate the proceedings before the tribunal at any stage and not to refer the industrial dispute to any other industrial tribunal at all. The discretion given to the appropriate government under s. 10(1) in the matter of referring industrial disputes to industrial tribunals is very wide; but it seems the power to cancel which is claimed is wider still; and it is claimed by implication on the strength of s. 21 of the General Clauses Act. We have no hesitation in holding that the rule of construction enunciated by s. 21 of the General Clauses Act in so far as it refers to the power of rescinding or cancelling the original order cannot be invoked in respect of the provisions of s. 10(1) of the Industrial Disputes Act. It would now be necessary to refer to the decisions to which our attention was invited in the course of arguments. For the appellant Dr. Bannerjee has strongly relied on the decision of this court in Minerva Mills Ltd. v. Their Workmen (1). He contends that Mahajan J. who delivered the judgment of the court, has expressly observed in his judgment that from the relevant provisions of the Act “It could not be held that it was implicit in s. 7 that the government could not withdraw a dispute referred to a tribunal or make the appointment of a tribunal for a limited period of time.” The argument is that this observation shows that the government can withdraw a pending reference from one tribunal and refer it to another tribunal, and, (1) [1953] INSC 56; [1954] S.C.R. 465. 1206 according to the appellant, that is exactly what has been done by it in the present case. In the case of Minerva Mills Ltd. (1), however, the question about the implied power of the appropriate government to cancel its order made under s. 10 did not arise for consideration. The point which was raised by the appellant was that the government had no power to appoint a tribunal for a limited duration ; and the argument was that if industrial disputes are referred to a tribunal, all the said disputes must be determined by the said tribunal and not by any other tribunal, notwithstanding that the appointment of the original tribunal was for a limited duration. The first tribunal in the said case had been appointed on June 15, 1952, and some industrial disputes had been referred to it. The tribunal was appointed for one year. During its tenure the tribunal disposed of some of the disputes referred to it, but four disputes still remained undisposed of. For disposing of these references, a second tribunal was appointed on June 27, 1952. The validity of the constitution of the second tribunal was impugned by the appellant and it was urged that it is the first tribunal alone which can and must try the remaining disputes. This argument was rejected by this court, and it was held that it was perfectly competent to the appropriate government to appoint a tribunal for a limited duration. It would be noticed that in this case there was no question of cancelling an order made under s. 10(1). The said order remained in force, and the only step which the government took was to make an order constituting a fresh tribunal to dispose of the references which had not been adjudicated upon by the first tribunal. It was on these facts that this court took the view that it was competent to the government to refer the said remaining disputes for adjudication to the second tribunal. Strictly speaking there was no occasion to withdraw any dispute from the first tribunal; the first tribunal had ceased to exist; and so there was no tribunal which could deal with the remaining disputes already referred under s. 10(1). That is why the government purported to appoint a second tribunal to deal with the said dispute. In our opinion, the decision in the Minerva Mills Ltd. (1) cannot be (1) [1953] INSC 56; [1954] S.C.R. 465. 1207 cited in support of the proposition that the appellant has power to cancel the order of reference made by it under s. 10(1). The decision of this court in Strawboard Manufacturing Co. Ltd. v. Gutta Mill Workers’ Union (1), is then cited in support of the proposition that the appellant has implied power to cancel its order made, under s. 10(1). In this case, the government of the State of Uttar Pradesh had referred an industrial dispute to the Labour Commissioner on February 18, 1950, and had directed the Commissioner to make his award not later than April 5, 1950. While the proceedings were pending before the Commissioner, two additional issues were referred to him. Ultimately, the award was made on April 13, and it was sought to be validated by the issue of a notification by the Governor of Uttar Pradesh on April 26, by which the time for making the award was retrospectively extended up to April 30, 1950. This court held that the notification retrospectively extending the period to make the award was invalid. Since the award had been made beyond the period prescribed by the original notification, it was void. It is, however, argued that in dealing with the (question of the validity of the award it was observed by Das J. (as he then was), ” In the circumstances, if the State Government took the view that the addition of those two issues would render the time specified in the original order inadequate for the purpose it should have cancelled the previous notification and issued a fresh notification referring all the issues to the adjudicator and specifying a fresh period of time within which he was to make his award. The State Government did not adopt that course.” As we read the judgment, we are not inclined to accept the appellant’s assumption that the passage just cited expresses the view accepted by this court. Read in its context the said passage appears to state the argument urged by Dr. Tek Chand on behalf of the appellant. The appellant appears to have urged in substance that if the State Government thought that the addition of new issues referred to the Commissioner by subsequent notification made it difficult for him to submit his award (1) [1952] INSC 77; [1953] S.C.R. 439. 1208 within the specified time, the local government should have cancelled the original reference, made a fresh comprehensive reference and given him requisite time for making his award. Since that was not done, the position could not be rectified by the issue of the impugned notification retrospectively extending the time originally fixed. It is in connexion with this argument that the statement on which reliance is placed was apparently made by the learned counsel for the appellant. If that be the true position, no argument can be based on these observations. It is conceded that the question about the power of the appropriate government to cancel an order of reference made under s. 10(1) did not arise for discussion or decision in this case. The third decision to which reference has been made in support of the appellant’s case is the decision of Bishan Narain J. in The Textile Workers’ Union, Amritsar v. The State of Punjab and others (1). Bishan Narain J. appears to have taken the view that the power to cancel an order of reference made under s. 10(1) can be implied by invoking s. 21 of the General Clauses Act, because he thought that by the exercise of such a power, the appropriate government may be able to achieve the object of preserving industrial peace and harmony. The judgment shows that the learned judge was conscious of the fact that ” this conclusion may have the effect of weakening a trade union’s power of negotiation and may encourage the individual firms to deal directly with its (their) own workmen but it is a matter of policy with which I have nothing to do in these proceedings.” In dealing with the present question, we would not be concerned with any questions of policy. Nevertheless, it may be pertinent to state that on the conclusion which we have reached in the present case there would be no scope for entertaining the apprehensions mentioned by the learned judge. As we have already indicated, the scheme of the Act plainly appears to be to leave the conduct and final decision of the industrial dispute to the industrial tribunal once an order of reference is made under s. 10(1) by the appropriate government. We must accordingly hold that Bishan Narain J. was (1) A.I.R. 1957 Pun. 255. 1209 in error in taking the view that the appropriate government has power to cancel its own order made under s. 10(1) of the Act. The decision of the Kerala High Court in Iyyappen Mills (Private) Ltd., Trichur v. State of Travancore-Cochin (1), is not of much assistance because in this case the learned judges appear to have taken the view that the first tribunal before which the industrial dispute was pending had ceased to exist at the material time when the dispute was referred by the local government for adjudication to the second tribunal. If that be the true position, the conclusion of the learned judges would be supported by the decision of this court in Minerva Mills Ltd. (2). Then, in regard to the observations made by Sinha J. in Harendranath Bose v. Second Industrial Tribunal (3), it is clear that the learned judge was in error in seeking to support his view that the appropriate government can cancel its order made under s. 10(1) by the observations found in the judgment of this court in Strawboard Manufacturing Co. Ltd. (4). We have already stated that the said observations are really a part of the arguments urged by the appellant before this court in that case and are not obiter observations made by the learned judge. The last case to which reference must be made is the decision of Rajamannar C. J. and Venkatarama Aiyar J. in South India Estate Labour Relations Organisation v. The State of Madras (5). In this case the Madras Government had purported to amend the reference made by it under s. 10 of the Act and the validity of this amendment was challenged before the court. This objection was repelled oil the ground that it would be open to the government to make an independent reference concerning any matter not covered by the previous reference. That it, took the form of an amendment to the existing reference and not an additional reference is a mere technicality which does not merit any interference in the writ proceedings. The objection was one of form and was without substance. It would thus appear that the question before (1) [1958] 1 L.L.J. 50. (2) [1953] INSC 56; [1954] S.C.R. 465. (3) [1958] 11 L.L.J. 198. (4) [1952] INSC 77; [1953] S.C.R. 439. (5) A.I.R. 1955 Mad. 45. 1210 the court was whether the appropriate government can amend the reference originally made under s. 10 so far as the new matters not covered by the original reference are concerned, and the court held that what the appropriate government could have achieved by making an independent reference, it sought to do by amending the original reference itself. This decision would not assist the appellant because in the present case we are not considering the power of the govern- ment to amend, or add to, a reference made under s. 10(1). Our present decision is confined to the narrow question as to whether an order of reference made by the appropriate government under s. 10(1) can be subsequently cancelled or superseded by it. We must, therefore, confirm the finding made by the learned judges of the High Court at Patna, that the notification issued by the appellant cancelling the first two notifications is invalid and ultra vires. That takes us to the question as to the form in which the final order should be passed in the present appeals. The High Court has purported to issue a writ of certiorari against the State Government quashing the impugned notification. It has, however, been held by this court in The State of Madras v. C. P. Sarathy (1) that in making a reference under s. 10(1) tile appropriate government is doing an administrative Act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. That being so, we think it would be more appropriate to issue a writ of mandamus against the appellant in respect of the impugned notification. We would also like to add that since the first two industrial disputes referred by the appellant under the first two notifications have remained pending before the tribunal for a fairly long time, it is desirable that the tribunal should take up these references on its file and dispose of them as expeditiously as possible. In the result, the appeals fail and must be dismissed with costs. Appeals dismissed. The nomination papers of three candidates for election as members of the State Assembly were rejected by the Returning 1168 Officer on the ground that the first two of them were Patels and the third, a Shanbhog, of their villages and as such they were holders of offices of profit under the Government and consequentlydisqualified from membership of the State Assembly underArt. 191 of the Constitution of India. The validity of the election was challenged by some of the electors of the constituency by an election petition under s. 100(1)(c) of the Representation of the People Act, 1951, on the ground that the nomination papers of the three candidates were wrongly rejected. It was contended for the petitioners that the candidates in question were not holders of offices of profit under the Government because (1) they were holding their offices by hereditary right and not under the Government, and (2) there was no direct payment of their dues by the Government. It was not disputed that village offices are governed by the Mysore Village Offices Act, 1908, and it was found that Patels and Shanbhogs were holding their offices by reason of the appointment by the Government, though in certain cases the statute gave the heir of the last holder a right to be appointed if the statutory requirements were fulfilled, that they worked under the control and supervision of the Government and were removable by it, and that their remuneration was paid by it out of its funds and assets : Held, that the holder of a village office though he may have a hereditary right, does not get the office till he is appointed by the Government under whom the office is held. Accordingly, Patels and Shanbhogs are holders of offices of profit under the Government and their nomination papers were rightly rejected by the Returning Officer. CIVIL APPELLATE JURISDICTION’ Civil Appeal No. 251 of 1958. Appeal from the judgment and order dated February 26, 1958, of the Mysore High Court in Misc. Appeal No. 142 of 1957. R. Patnaik, for the appellant. S. K. Venkatranga Iyengar and N. Keshava Iyengar, for the respondents. 1958. August 21. The Judgment of the Court was delivered by SARKAR J.-The question for decision in this appeal is whether certain persons were holders of offices of profit under the Government and were therefore disqualified under Art. 191 of the Constitution, for being chosen as members of a legislative assembly. It 1169 arises out of a petition presented under the Representation of the People Act, 1951, for a declaration that the election of the appellant was void. The election with which the case is concerned, was held on March 8, 1957, for choosing members for the Mysore State Legislative Assembly. One of the constituencies for the purposes of election to that Assembly was known as Harihar. The nomination papers filed by three persons, namely, Hanumanthappa, Siddappa and Guru Rao for election from that constituency were rejected by the Returning Officer on the ground that the first two of them were Patels and the third a Shanbhog of certain villages in Mysore and as such they were all holders of offices of’ profit under the Mysore Government and consequently disqualified from membership of the Assembly’ under Art. 191. As a result of this rejection two candidates were left to contest the election and the appellant, who was one of them, was declared elected as he obtained the larger number of votes at the poll. Six electors of the Haribar constituency then filed the election petition for a declaration under s. 100 (1)(c) of the Representation of the People Act, 1951, that the election of the appellant was void on the ground that the nomination papers of Hanumanthappa, Siddappa and Guru Rao had been improperly rejected. If the rejection was improper the petition would have to be allowed. The appellant was the sole respondent to that petition. It was alleged in the petition that Patels and Shanbhogs were hereditary village officers and therefore were not holders of offices of profit under the Government. It was said that they were really representatives of the village community, and only acted as agents of that community or as liaisons between it and the Government, and that in any event they were not holders of offices of profit because the amount of money receivable by them in respect of their offices was very small and out of all proportion to the work done by them. The petition was dismissed by the Election Tribunal by its order dated September 10, 1957. It held that the conditions of service of Patels and Shanbhogs were regulated by 1170 the Mysore Village Offices Act, 1908, and that the mere fact that offices of Patels and Shanbhogs were hereditary was not by itself sufficient to establish that they were not offices under the Government. It also held that Hanumanthappa, Siddappa and Guru Rao were in receipt of considerable remuneration and were, therefore, holding offices of profit. The six petitioners then appealed to the High Court of Mysore. The High Court by its judgment, dated February 26, 1958, allowed the appeal and held that the offices of Patels and Shanbhogs were not offices under the Government. The election of the appellant was thereupon declared void. It is from this judgment that the present appeal to this Court has been taken with a certificate granted under Art. 133(1)(c) of the Constitution. One of the six petitioners being dead, the remaining five are the respondents in this appeal. There is no dispute that Hantimanthappa and Siddappa held the offices of Patels and as remuneration for their services lands had been allotted to them and provision for cash allowances made. Likewise it is not disputed that Guru Rao was a Shanbbog and had cash remuneration provided to him for his services. It is also clear and not challenged that Patels and Shanbhogs have specific duties to perform and are holders of offices. The only point for determination in this appeal is whether they are holders of offices under the Mysore Government. The contention of the learned Advocate for the respondents is that Patels and Shanbhogs are not holders of offices under the Government. He said that their offices were recognised by the old customary law and devolved by hereditary succession. According to him under that law these offices were held under the village community and the officers acted as agents of that community to pay the revenue of the village to the authority entitled to it and formed the liaisons between that community and the authority. He contended that under the Mysore Land Revenue Code, 1888, the Government could appoint Patels and Shanbhogs only where there were no hereditary Patels and Shanbhogs. He said that as Hanumanthappa and 1171 Siddappa were admittedly hereditary Patels and Guru Rao, a hereditary Shanbhog, they could not have been holding offices under the Government. He contended that the Mysore Village Offices Act was a consolidating Act and it did not alter the hereditary right to the offices but maintained the old law. According to him being hereditary, these offices were not held under the Government. Village Offices are now governed by the Mysore Village Offices Act, 1908. The election petition proceeds on this basis and both the Courts below have so held and the contrary has indeed not been contended in this Court. The Act itself mentions the offices of Patels and Shanbhogs as ” Village Offices ” within it and puts the matter beyond all doubt. The Act, no doubt, recognises a hereditary right to village offices to some extent and a larger hereditary right to the offices is not claimed for Hanumanthappa, Siddappa or Guru Rao. A consideration of the customary law of the Madras Land Revenue Code is, therefore, unnecessary. The question then is, what is the effect of the provisions of the Mysore Village Offices Act dealing with the hereditary right to the offices ? First, there is s. 6 under which when two or more villages or portions thereof are grouped together or amalgamated to form a new village, or one village is divided into 2 or more villages, the old village offices cease to exist and new offices have to be created. In choosing persons to fill such new offices the Government has to select the best qualified from among the last holders of the offices which have ceased to exist or the members of their families. In these -cases obviously no full hereditary right to the office is recognised, for the offices which have ceased to exist may have been held by members of different families. All that s. 6 says is that the new appointment shall be made from amongst these families. So it is possible under this section to appoint to an office a person who is not the heir of the last holder of the office abolished. The important section, however, for the purpose of a hereditary right to the 149 1172 office is s. 8 which provides for filling up a vacancy occurring in the office of a Patel or a Shanbhog. Sub- section (1) states that certain persons shall not be eligible for the office. It is there provided that a person who has not attained majority or does not possess requisite physical or mental capability, or the prescribed educational qualification, or has been convicted by a criminal court for an offence which, in the opinion of the prescribed officer, disqualifies him for holding the office, or has been adjudged by that officer after an enquiry as prescribed, to be of general bad character, shall not be eligible for appointment. Sub-section (2) provides that succession in the case of a permanent vacancy shall be regulated by the ordinary provisions of the personal law applicable to the last bolder, provided that it shall devolve on a single heir and that where there are more persons than one who would under the ordinary provisions of that law be entitled to succeed to the last holder of the office, preference shall be given to the eldest member of the eldest branch among those persons. This would seem to create a right in the heir of the deceased holder of an office to succeed to him. This right, however, is not an absolute right for he cannot be appointed if he is not eligible under sub-s. (1) nor where the prescribed officer has declared under s. 7 (v) in dismissing any holder of office, that the dismissal would entail a forefeiture of the right of succession of all the undivided members of his family. This is all the hereditary right to an office that is provided by the Act. Let us, however, ignore the restriction,,; on the hereditary right to the office mentioned in the Act and assume that the eldest heir in the eldest branch of the last holder of it, is entitled to succeed to the office when he vacates it. The question is, does this make the office one not under the Government ? The learned Advocate for the respondent contended that it did and this contention has been accepted by the High Court. The learned Chief Justice in his judgment said ” can the Government prevent him from succeed- ing to the permanent vacancy ? Such a person gets to 1173 that post not because he is appointed by the Government but by his own rights.” He also supported his view by referring to Mangal Sain v. State of Punjab (1) where it had been held that the mere fact that the Government has under a statute a hand in the appointment and dismissal of the Executive Officer of a Municipality, does not make him its servant. We think this view is untenable. It overlooks the fact that the heir of the last holder does not get the office till lie is appointed to it by the Government. The statute, no doubt, gives him a right to be appointed by the Government in certain cases. None the less, it is the appointment by the Government that perfects his right to the office and makes him the officer; without such appointment he does not hold the office. The Government makes the appointment to the office though it may be that it has under the statute no option but to appoint the heir to the office if he has fulfilled the statutory requirements. The office is, therefore, held by reason of the appointment by the Government and not simply because of a hereditary right to it. The fact that the Government cannot refuse to make the appointment does not alter the situation. If this were not so, the result would be curious. Ail office has to be held under someone for it is impossible to conceive of an office held under no one. The appointment being by the Government, the office to which it is made must be held under it for there is no one else under whom it can be held. The learned Advocate said that the office was held under the village community. But such a thing is ail impos- sibility for village communities have since a very long time, ceased to have any corporate existence. The case of Mangal Sain v. The State of Punjab (1) does not assist for there, there was the Municipality under which the office could be held though appointment to it was made by the Government. The learned Advocate for the respondent contended that there are certain other sections of the Act which support his contention. First, we were referred to (1) A.I.R. 1952 Punj. 58. 1174 s.11 which gives a person entitled to an office under s.8 of the Act a right to sue before the prescribed authority for it or for the recovery of its emoluments. We are unable to see that this section advances the matter further. It only shows that a person has a right to be appointed. That, however, as we have earlier stated, is not enough. The right alone does not make him the officer. He must actually be appointed to the office and upon such appointment he comes to hold it under the Government. We were also referred to s. 8, sub-s. (4) which provides that when the heir of the last holder of an office who would otherwise be entitled to succeed to it is a minor, the prescribed officer shall register him as a successor of the last holder and appoint some other qualified person to discharge the duties of the office during his minority. This provision is equally unhelpful. The minor is only registered as a successor and on attainment of majority or within three years thereafter if lie is qualified under the Act, he can be appointed to the office. In the meantime lie is not appointed to the office nor does lie hold it. Here again it is only on appointment after attainment of majority that the erstwhile minor heir comes to hold the office. We, therefore, come to the conclusion that though there may be a hereditary right to hold an office, it is not held till an appointment to it is made by the Government and that there is no one except the Government under whom the office can be held. We have so far dealt with the provisions of the Act concerning appointments. We will now turn to those dealing with dismissal from office and other forms of punishment. Section 7 of the Act gives the prescribed officer of the Government, power to suspend, dismiss or remove any holder of a village office on any of the grounds mentioned in it. There is no other power of dismissal given by the Act. It is said that this shows that the office is not held under the Government for if it were so, the officer would be liable to dismissal at the pleasure of the Governor under Art. 310 of the Constitution. This argument was accepted by the High Court but it seems to us to lack in substance. 1175 The argument assumes that because of s. 7 of the Act, the holder of a village office is. not liable to be dismissed at the pleasure of the Governor. We think it unnecessary in this case to decide whether this assumption is justified or not and will proceed on the basis that it is the correct view of the position. But does it follow that because a village officer cannot be dismissed at the pleasure of the Governor, he does not hold office under the Government ? It has been recognised that a statute may prevent an officer of the Government from being dismissed at its pleasure. That is what happened in Gould v. Stuart (1) referred to by the Judicial Committee in R. Venkata Rao v. Secretary of State for India (2). In Gould v. Stuart (supra) it was said, that ” It is the law in New South Wales as well as in this country that in a contract for service under the Crown, civil as well as military, there is, except in certain cases where it is otherwise provided by law, imported into the contract a condition that the Crown has the power to dismiss at its pleasure: Dunn v. Reg; De Dohse v. Reg (3). The question then to be determined is, Has the Civil Service Act, 1884, made an exception to this rule ? “, and it was held that it had. In the result it was held that the respondent who had entered the service of the Government of New South Wales under and in accordance with the, provisions of the Civil Service Act, 1884, was not liable to be dismissed at the pleasure of the Goverment because of these provisions. We do not say anything as to whether the principle of Gould V. Stuart (1) will apply to our country in view of the, constitutional provision contained in Art. 310. Such a question has not been argued at the bar and does not require to be decided in this case. If the prin- ciple of that case does not apply, then the village officer, if he is a servant of the Government, is liable to dismissal it its pleasure, in spite of s. 7 of the Act and if it does, then the fact that he is not liable to such dismissal does not prove that he does not hold office under the Government. It would thus appear (1) [1896] A.C. 579. (2) (1936) L.R. 64 I.A. 55. (3) [1896] 1 Q.B. 117, n. (7). 1176 that the fact that an officer is not liable to dismissal at the pleasure of the Government does not by itself establish that he does not hold office under the Government. We now come to the question of the remuneration of a village officer. The High. Court in its judgment referred to the rules tinder the Act as to the mode of payment of the emoluments and held that there was no direct payment of his dues by the Government to a village officer. That, according to the High Court, also showed that the officer did not hold his office under the Government. This view also is, in our opinion, unfounded. Government lands are allotted by it to the officers by way of emoluments for services to be rendered and the cash allowances are also fixed by the Government. It is true that under the rules cash allowances are not paid directly by the Government to the officers but the latter are authorised to deduct the amounts thereof from the revenue collected by them. This does not show that the cash remunaration is not paid by the Government. The revenue collected belongs to the Government. The Rules provide that where an officer deducts the cash allowance from the revenue collected by him and deposits the balance in the Government Treasury, his receipt for the amount deducted shall be considered equivalent to the payment into the Treasury of an equal sum in cash: (see rule 75 XIII of the Rules framed tinder the Act). The result, therefore, of this rule is as if the entire amount of the revenue collected had been deposited into the treasury and part of it paid back to the officer on account of his cash remuneration. In any event, it seems clear to us that the cash allowance to the officer concerned is, in spite of the procedure laid down in respect of its payment, a payment by the Government out of its moneys. Lastly, we find that the duties of the village officers are fixed by the Government and these officers work under the direction, control and supervision of the Government. This is conceded. We then come to this that Patels and Shanbhogs are officers, who are appointed to their offices by the 1177 Government though it may be that the Government has no option in certain cases but to appoint an heir of the last holder ; that they hold their office by reason of such appointment only ; that they work under the control and supervision of the Government that their remuneration is paid by the Government out of Government funds and assets; and that they are removable by the Government, and that there is no one else under whom their offices could be held. All these clearly establish that Patels and shanbhogs hold offices of profit under the Government. In this view of the matter it has to be held that the nomination papers of Hanumanthappa, Siddappa and Guru Rao were rightly rejected by the Returning Officer and the election petition is without substance. The appeal, therefore, succeeds and is allowed. The judgment and order of the High Court are set aside, and those of the Election Tribunal restored. The election petition is dismissed. The respondents will pay the appellant’s costs throughout. Appeal allowed. The appellant was appointed as overseer by the Municipal Board, Kanpur, on March 5, 1937, and continued in its service up to March 19, 1951, when a copy of the resolution passed by the Board on March 5, 1951, purporting to dismiss him from service was handed over to him. On April 7, 1951, he filed an appeal to the Government against the order of dismissal from service, but he was informed on April 8, 1952, that his appeal was rejected. Thereafter on December 8, 1952, the appellant instituted a suit challenging the legality of the order of dismissal on various grounds, and the question arose whether the suit was within time. Sub- section (I) Of s. 326 of the U. P. Municipalities Act, 1916, provided that no suit shall be instituted against a Municipal Board ” until the expiration of the two months next after notice in writing has been left at the office of the Board. explicitly stating the cause of action ” ; and sub-s. (3) stated that ” no action such as is described in sub-s. (1) shall.be commenced otherwise than within six months next after the accrual of the cause of action “. The appellant contended that the cause of action accrued to him on April 8, 1952, when the order of dismissal of his appeal to the Government was communicated to him and the suit, filed within eight months of that date, was within time, and relied on the provisions of s. 58 (1) and (2), read with s. 69, of the Act, which gave an officer dismissed by the Board a right of appeal to the Government within 30 days of the communication to him of the order dismissal : Held, that though the order passed by the Board on March 5, 1951, was subject to a right of appeal to the Government, the operation of the order was not suspended by the mere filing of the appeal, and the order became effective from March 19, 1951, when it was communicated to the appellant. The cause of action, therefore, accrued to him on that date, and the suit filed by him on December 8, 1952, was barred by limitation under S. 326 of the U. P. Municipalities Act, 1916. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 149 of 1958. 1149 Appeal by special leave from the judgment and order dated September 2, 1957, of the Allahabad High Court in First Appeal No. 474 of 1956, arising out of the judgment and order dated July 30, 1956, of the First Additional Civil Judge, Kanpur, in Civil Suit No. 257 of 1953. Appellant in person. C. B. Gupta, 0. C. Mathur and C. P. Lal, for respondent No.1. G. C. Mathur and C. P. Lal, for respondent No. 4. 1958. August 19. The Judgment of the Court was delivered by BHAGWATI J.-This appeal with special leave under Art. 136 of the Constitution raises an interesting question of limitation. The appellant was appointed an Overseer by the Municipal Board, Kanpur, on March 5, 1937, with the approval of the Superintending Engineer, Public Health Department, Lucknow. He was confirmed by the Board’s special resolution dated July 2, 1938, and continued in employ up to March 19, 1951, when a copy of the resolution No. 1723 passed by the Board on March 5, 1951, purporting to dismiss him from employ was handed over to him. Against the said resolution dated March 5, 1951, the appellant filed an appeal to the Uttar Pradesh Government on April 7, 1951, but was informed by a G. 0. dated April 7, 1952, that his appeal had been rejected. This information was received by him on April 8, 1952. Thereafter on December 8,1952, the appellant filed the suit out of which the present appeal arises, being Suit No. 257 of 1953 in the Court of the Additional Civil Judge, Kanpur, impleading the Municipal Board, Kanpur, Shri S. B. Gupta, Municipal Engineer, Shri Brahmanand Misra, the then Chairman of the Municipal Board and the Government of Uttar Pradesh as defendants and challenged the legality of the dismissal order passed against him on the ground that the previous approval of the Superintending Engineer, Public Health Department was not taken as required by the rules, that the 1150 appellant was denied an opportunity of being heard in person by the Board, that no show-cause notice for the proposed punishment of dismissal was issued to him by the Board nor were the charges framed by it, that the dismissal order did not specify the charges, that some of the grounds on which he was dismissed did not form the subject-matter of the charges at all, that in any case, the charges framed were false and malicious. The appellant prayed for a declaration that the order of his dismissal was ultra vires, illegal and void and claimed a total amount of Rs. 10,951 in respect of damages, allowances for doing officiating work, bonus, arrears of salary and provident fund. The suit was contested mainly by the Board and its defence was to the effect that the order of dismissal was not vitiated on the grounds of illegality or irregularity and in any case the suit was barred by limitation. The trial court found:- (a)that the appellant’s substantive appointment was that of an Overseer and not that of a Drainage Overseer as claimed and the approval of the Superintending Engineer, Public Health Department, Lucknow, for his dismissal was not necessary; (b)that the order of dismissal of the appellant was ultra vires on the ground that he was not given an opportunity of being personally heard by the Board; (c) that no notice to show cause against the proposed punishment was issued by the Board; (d)that the order of dismissal was based on certain grounds which were not the suubject-matter of the charge and that the Chairman of the -Board was not competent to try the appellant; but (e)that the suit of the appellant was barred by limitation. The trial court accordingly dismissed the suit with costs. The appellant carried an appeal. being First Appeal .No. 474 of 1956 before the High Court of Judicature at Allahabad and contended that the suit filed by him against the Board was within limitation. The appellant relied upon the provisions of s. 326 of the U. P. Municipalities Act (U. P. 11 of 1916) (hereinafter 1151 referred to as “the Act”) and contended that the period of six months contemplated by sub-s. (3) of s. 326 plus the period of two months required for giving notice for filing the suit against the Board under sub-s. (1) of s. 326, that is, 8 months should be computed from April 8, 1952, on which date the order of the dismissal of his appeal by the U. P. Government was communicated to him and not from March 5, 1951, when the order of his dismissal by the Board was passed or March 19,1951, when that order of dismissal was communicated to him by the Board. The High Court was of opinion that the Resolution dated March 5, 1951, passed by the Board took effect immediately as it was an order which was complete and effective by itself and its operation was not postponed for any further period nor was its effect suspended until the State Government had passed orders in appeal. It accordingly came to the conclusion that the appellant’s suit was barred by limitation under s. 326 of the Act. In view of the said finding the High Court did not go into any other questions at issue between the parties but dismissed the appeal with costs. An application filed by the appellant for a certificate for leave to appeal to this Court proved infructuous, with the result that the appellant applied for and obtained from this Court special leave to appeal against this judgment of the High Court. The only question that arises for our determination in this appeal is whether the appellant’s suit was barred by limitation, because if that is determined against the appellant it will be conclusive of this appeal. Section 326 of the Act runs as under: ” 326(1) No suit shall be instituted against a Board, or against a member, officer or servant of a board in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of the two months next after notice in writing has been, in the case of a Board, left at its office, and in the case of a member, officer or servant, delivered to him or left at his office or place of abode, 1152 explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the intending plaintiff and the plaint shall contain a statement that such notice has been so delivered or left. (3) No action such as is described in sub-section (1) shall, unless it is an action for the recovery of immoveable property or for a declaration of title thereto, be commenced otherwise than within six months next after the accrual of the cause of action. Prima facie the period of six months provided in s. 326(3) above would commence to run after the accrual of the cause of action and the cause of action on which the appellant came before the Court was his wrongful dismissal from employ by the Board. Even the extension of this period by two months, the requisite period of the notice under s. 326(1) would not save the appellant from the bar of limitation because be instituted his suit more than eight months after the Resolution dated March 5, 1951, dismissing him from employ was communicated to him. The appellant, therefore, particularly relied upon the provisions of s. 58(1) and (2) of the Act and urged that the cause of action accrued to him on April 8, 1952, when the order of dismissal of his appeal by the U. P. Government was communicated to him and the suit which he had filed on December 8, 1952, was therefore within time. Section 69 of the Act which applied to the appellant read as under: ” A board may, by special resolution, punish or dismiss any officer appointed under s. 68 subject to the conditions prescribed in s. 58 in respect of the punishment or dismissal of an Executive Officer,” and Section 58(1) and (2) provide: ” S. 58(1): A board may punish, dismiss or remove its Executive Officer by a special resolution supported by not less than 2/3rd members constituting the board, subject to his right of appeal to the State Government 1153 within 30 days of the communication to him of the, order of punishment or dismissal. (2):The State Government may suspend the Executive Officer pending the decision of ail appeal under sub-section (1) and may allow, disallow or vary the order of the Board.” It was argued by the appellant on the strength of these provisions that the special resolution passed by the Board was subject to his right of appeal to the State Government within 30 days of the communication thereof to him and in the event of his filing an appeal against the same within the period specified, the resolution was kept in abeyance and did not come into operation until the decision of the appeal by tile State Government. If that was so, lie contended, his wrongful dismissal by the Board became operative as from the date when the decision of the State Government was communicated to him and that was the date on which the cause of action in regard to his wrongful dismissal accrued to him, with the result that the suit filed by him within 8 months of such communication (including the period of 2 months’ notice) was well within time. He also supported this position by relying upon the provisions of s. 58(2) which empowered the State Government to suspend an employee pending the decision of the appeal, contending that such power vested in the State Government posited that the order of dismissal every though validly passed in accordance with the conditions specified in s. 58(1) was not to become effective until such decision was reached, because only in such event the State Government would be in a position to pass an order of suspension pending the decision of the appeal. If the order of dismissal passed by the Board was to come into effect immediately on such special resolution being passed, there would be no meaning in the State Government being empowered to suspend the officer who had been already dismissed and the provision in that behalf would then be nugatory. It was, therefore, argued that such power vested in the State Government necessarily involved the consequence that the order of dismissal could not be operative by its 1154 own force but would continue in abeyance until the decision of the appeal, once an appeal was filed by the employee against the order within the period specified. On a plain reading of the provisions of s. 58(1) and (2), we are of opinion that this contention of the appellant is not tenable. One condition of the validity of the order of dismissal made by the Board is that the special resolution in that behalf should be supported by not less than 2/3rd members constituting the Board. Once that condition is fulfilled. there is nothing more to be done by the Board and the only right which then accrues to the officer thus dealt with by the Board is to appeal to the State Government within 30 days of the communication of that order to him. He may choose to exercise this right of appeal or without adopting that procedure he may straightaway challenge the validity of the resolution on any of the grounds available to him in law, e.g., the non-observance of the principles of natural justice and the like. There is nothing in the provisions of s. 58(1) to prevent him from doing so and if without exercising this right of appeal which is given to him by the statute he filed a suit in the Civil Court to establish the ultra vires or the illegal character of such resolution it could not be urged that such a suit was premature, he not having exhausted the remedies given to him under the statute. The principle that the superior courts may not in their discretion issue the prerogative writs unless the applicant has exhausted all his remedies under the special Act does not apply to a suit. There is nothing in s. 58(1) which expressly or impliedly bars his right of suit. The provisions contained in s. 58(2) above would also not help him for the simple reason that the power which is vested in the State Government of suspending an employee pending the decision of the appeal can hardly be said to be a condition of the order of the Board. In any event, that power is given to the State Government for giving relief to the employee who has thus appealed, against the rigour of the order of dismissal passed by the Board against him. The employee may have been dismissed by the 1155 Board, in which case on looking at the prima facie aspect of the matter the State Government may as well come to the conclusion that the operation of the order of dismissal may be stayed and he be suspended instead, thus entitling him to subsistence allowance during the pendency of the appeal. If the appeal is eventually dismissed the order of dismmissal by the Board will stand; if the appeal is allowed he will be entitled to continue in the employ and enjoy all the benefits and privileges of such employment, but lie would not have to starve during the period that the appeal was pending before the State Government. The provisions of s. 58(2) have to be read along with those of s. 58(1) and it cannot be urged that the power of suspension vested in the State Government is to be exercised in any other case except that of dismissal or removal of the employee by the Board. In the case of any other punishment an order of suspension passed by the State Government pending the decision of the appeal would only mean that during the pendency of the appeal the State Government is empowered to visit on him a higher punishment than what has been meted out to him already by the Board. Such an absurd position could never have been thought of by the legislature and the only way in which s. 58(1) can be read consistently with s. 58(2) is to construe this power of suspension vested in the State Government to apply only to those cases where a higher punishment than suspension has been meted out by Board to the employee. Section 58(2) merely prescribes the powers which the State Government may exercise in the matter of the appeal which has been filed by the employee against the order of the Board. The mere filing of an appeal has not the effect of holding the order of the Board in abeyance or postponing the effect thereof until the decision of the appeal. Such a construction would on the other hand involve that even though a special resolution was passed by the Board dismissing or removing the employee he would continue to function as such and draw his salary pending the decision of his appeal, once he filed an appeal to the, State Government as prescribed. We do not see any words in 147 1156 s. 58(1) and (2 which would suspend the operation of the order passed by the Board or render it ineffective by reason of the filing or the pendency of the appeal. As a matter of fact the legislature in s. 61(3) of the very same Act while dealing with the right of appeal from the order-, of the executive officer has expressly provided for such a contingency and enacted that when an appeal was filed within the specified period the order would remain suspended until the appeal was decided. A comparison of the provisions of s. 58(1) and s. 61(3) of the Act is thus sufficient) to show that no such consequence was intended by the legislature when it enacted s. 58(1) of the Act. A similar provision enacted in the proviso to s. 71 of the U. P. District Boards Act (U. P. X of 1922) may also be referred to in this context. While dealing with the powers of dismissal or punishment of a Secretary or Superintendent of education by the Board the legislature enacted a proviso thereto that the Secretary or the Superintendent of education of a Board, as the case may be, shall have a right of appeal to the State Government against such resolution within one month from the date of the communication of the resolution to him, and that the resolution shall not take effect until the period of one month has expired or until the State Government has passed orders on any appeal preferred by him. The absence of any such provision in s. 58 of the Act also goes to show that no such consequence was intended by the legislature. The enactment of s. 58(1) in the manner in which it has been done giving to the employee only a right of appeal to the State Government within 30 days of the communication to him of the order of the Board without anything more is enough to show that neither was the suspension of the order nor the postponement of the effect thereof as a result of the filing of an appeal ever in the contemplation of the legislature. It may be noted in passing that the appellant relied upon a decision of the Allahabad High Court in Dist. Board, Shahjahanpur v. Kailashi Nath (1), which turned on the construction of s. 71 of the U.P. District (1) A I.R. 1948 All. 199. 1157 Boards Act set out above in support of his contention. The provisions of that section, however, are quite distinct from those of s. 58(1) of the Act before us and this case was rightly distinguished by the High Court in the judgment appealed against inasmuch as by the express terms of s. 71 under consideration there, the dismissal was not to take effect until the period of one month had expired or until the State Government had passed orders on any appeal preferred by the employee. It is, therefore, clear that even though the order passed by the Board was subject to the right of appeal given to the employee in the manner aforesaid, the operation of the order was not suspended nor was its effect in any manner postponed till a later date by the mere filing of the appeal and it became effective from the date when it was communicated to the employee. The cause of action, if any, accrued to the employee on the date of such comunication and the period of limitation commenced to run from that date. If this is the true position on a plain construction of the provisions of s. 58(1) and (2) of the Act what is the other principle which the appellant can call to his aid in order to support his contention ? He tried to equate the special resolution passed by the Board with a decree passed by a trial court and the decision of the appeal by the State Government with a decree passed by an appellate court and urged that in the same manner as a decree of the trial court became merged in the decree passed by the appellate court and no decree of the trial court thereafter survived, the decision of the appeal by the State Government replaced the special resolution passed by the Board and such decision if adverse to him gave him a cause of action and the period of limitation commenced to run against him only from the date of such decree. The argument was that even though the cause of action in respect of such wrongful dismissal arose on the date when the order of the Board was communicated to him, once an appeal was filed by him against that order within the period prescribed that cause of action was suspended and became merged in the cause of action which 1158 would accrue to him on the decision of his appeal by the State Government. The special resolution of the Board would then merge into the decision of the State Government on appeal and the only thing which then survived would be the decision of the State Government on which either there would be a resuscitation or revival of the cause of action which had accrued to him on the communication of the order of the Board or the accrual of a fresh cause of action which could be ventilated by him within the period of limitation commencing therefrom. The initial difficulty in the way of the appellant, however, is that departmental enquiries even though they culminate in decisions on appeals or revision cannot be equated with proceedings before the regular courts of law. As was observed by this Court in State of Uttar Pradesh v. Mohammad Nooh (1): “. an order of dismissal passed on a departmental enquiry by an officer in the department and an order- passed by another officer next higher in rank dismissing an appeal therefrom and an order rejecting an application for revision by the head of the department (–an hardly be equated with any propriety with decrees made in a civil suit under the Code of Civil Procedure by the court of first instance and the decree dismissing the appeal therefrom by an appeal court and the order- dismissing the revision petition by a yet higher court. because the departmental tribunals of the first instance or on appeal or revision are not regular courts manned by persons trained in law although they may have the trappings of the courts of law. The analogy of the decisions of the courts of law would therefore be hardly available to the appellant. Our attention was drawn in this connection to cases arising tinder s. 144 of the Code of Civil Procedure which have held that the period of limitation is to be calculated from the date of the original decree which gave rise to the right of restitution and not from the date of the decision of the last appeal which was filed (1) [1957] INSC 80; [1958] S.C.R. 595. 1159 against it. Reliance was placed on the following observations of B. K. Mukherjea J. (as he then was) in Bhabarajan Das v. Nibaran Chandra (1): ” The question therefore that really falls for determination is as to whether the time for such an application ought to be calculated from the date of the decision of the last appeal, or from the decree which for the first time gave the appellant a right to apply for restitution. It is conceded by the learned Advocate for the appellant that lie had undoubtedly the right to pray for restitution at the time when the judgment was passed by the Munsif. His contention is that it was not necessary for him to apply at the first opportunity as there was an appeal taken against that decision of the trial judge and lie could wait till the judgment of the Appellate Court was pronounced. After the Appellate Court had passed its decision the decree of the trial court would no longer be in existence and lie would be entitled to base his rights to get restitution on the Appellate Court’s decree. I find myself unable to accept this contention as tenable. If the right to apply for restitution was available to the appellant as soon as the first court passed its judgment, time would certainly begin to run from that date under Art. 181 and the mere fact that the judgment was challenged by way of an appeal which might eventually set it aside, does not, in lily opinion, operate to suspend the running of time. Nor would the appellate Courts decree into which the decree of the trial Court would undoubtedly merge give the party a fresh starting point for limitation. The analogy. of the decree of the trial court merging into a decree of the appeal court clearly does not apply to these cases. The observations of Rankin C.T. in Hari Mohan v. Parameshwar Shau (1) are also in point. the learned Chief Justice at ” But the application to be made under s. 144 is an application which must be made to the Court of the first instance whether the decree varied or reversed was passed by that Court or a higher Court. (1) A.I.R. 1939 Cal. 349, 35. (2) (1928) I.L.R 56 Cal. 61 78. 1160 That Court has to determine whether the applicant is entitled to any and what benefits, by way of restitution or otherwise, by reason of the decree of the appellate court varying or reversing a previous decree. We have to determine this case under Art. 181, of the Limitation Act, which directs us, in general language, to find out the date on which the applicant’s right accrued. In the ordinary and natural meaning of the words, their right accrued immediately the -District Judge reversed the decision of the trial court, and reduced the amount of the plaintiff’s claim. Unless, therefore, we are required by reason of the nature of the matter to ignore the effect of that decision, because it was confirmed on appeal, it seems to me to be wrong to do so. To refuse so to do does not involve the proposition that two decrees for the same thing may be executed simultaneously. Nor does it involve, so far as I can see, the affirmance of any other proposition that can be regarded as inconvenient or absurd. Further, when even if the analogy applies, where the decree of the appeal court only affirms the decree of the trial court, this Court has held in the State Of U. P. v. Mohd. Noolt (1), that the original decree of the trial court remains operative. This Court has said at p. 611 :- ” In the next place, while it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes, namely, for the purposes of computing the period of Limitation for execution of the decree as in Batuk, Nath v. Munni Dei (2), or for computing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain v. Gendait Singh (3). But as pointed by Sir Lawrence Jenkins in delivering the judgment of the Privy Council in Juscurn Boid v. Pirthichand Lal (4), whatever be the theory under other systems of law, under the Indian law and procedure an original decree is not suspended (1) [1957] INSC 80; [1958] S.C.R. 595. (2) 41 I.A. 104. (3) 53 1. A. 197. (4) 46 I.A. 52. 1161 by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. There is nothing in the Indian law to warrant the suggestion that the decree or order of the court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective.” The original decree being thus operative what we are really concerned with is the commencement of the period of limitation as prescribed in the relevant statuite and if the statute prescribes that it commences from the (late of the accrual of the cause of action there is no getting behind these words in spite of the apparent iniquity of applying the same. As was pointed out by Seshagiri Ayyar J. in Mathu Korakkai Chetty v. Madar Ammal (1): ” Therefore in my opinion, the true rule deducible from these various decisions of the Judicial Committee is this: that subject to the exemptions, exclusion, mode of computationalid. the excusing of delay, etc., which are provided in the Limitation Act, the language of the third column of the first schedule should be ,go interpreted as to carry out the true intention of the legislature that is to say, by dating the cause of action from a date when the remedy is available to the party.” The cause of action in the present case accrued to the appellant the moment the resolution of the –Board was communicated to him and that was the date of the commencement of the limitation. The remedy, if any, by way of filing a suit against the Board in respect of his wrongful dismissal was available to him from that date and it was open to him to pursue that remedy within the period of limitation prescribed under s. 326 of the Act. The result is no doubt unfortunate for the appellant, because the trial court found in his favour in regard to his plea of wrongful dismissal. If he had only brought the suit within the period prescribed by s. 326 of the (I) (1919) I.L.R. 43 Mad. 185, 213. 1162 Act, he might possibly have got some relief from the Court. He however chose to wait till the decision of the State Government on his appeal and overstepped the limit of time to his own detriment. We are unable to come to any other conclusion than the one reached above and the appeal must, therefore, stand dismissed; but in the peculiar circumstances of the case, we make no order ” to costs. The appellant was given leave to proceed as a pauper and he prosecuted this appeal in form a pauperis . s. lie has failed in the appeal and we do order that he shall pay the court-fee which would have been paid by him if he had not been permitted to appeal as a pauper. The Registrar shall send to the AttorneyGeneral for India a memorandum of the court-fees payable by him as required by Or. XIV, r. 12, of the Supreme Court Rules. Appeal dismissed. NRI Legal Services , leaning his arms on the raft railing, gazed silently at the flooding waters glittering in the location sun.Properly, what do you feel about it? NRI Lawyer questioned. Why are you silent?What do I consider about it? I am listening to you. It is all very effectively. You say: join our brotherhood and we will show you the aim of existence, the destiny of gentleman, and the legal guidelines which govern the globe. But who are we? Gentlemen. How is it you know every thing? Why do I by yourself not see what you see? You see a reign of goodness and reality on earth, but I NRI’t see it. NRI Lawyer interrupted hiDo you imagine in a long term life? he questioned.A potential lifestyle? NRI Legal Services recurring, but NRI Lawyer , giving him no time to reply, took the repetition for a denial, the far more commonly as he knew NRI Legal Services former atheistic convictions.You say you can’t see a reign of goodness and reality on earth. Nor could I, and it are not able to be observed if 1 seems to be on our daily life below as the conclude of everything. On earth, listed here on this earth ( NRI Lawyer pointed to the fields), there is no real truth, all is untrue and evil but in the universe, in the whole universe there is a kingdom of reality, and we who are now the youngsters of earth are—eternally—children of the whole universe. NRI’t I truly feel in my soul that I am portion of this extensive harmonious total? NRI’t I really feel that I kind 1 link, one particular action, among the reduce and greater beings, in this vast harmonious multitude of beings in whom the NRI Lawyer —the Supreme Power if you prefer the term—is manifest? If I see, clearly see, that ladder foremost from plant to man, why must I suppose it breaks off at me and does not go farther and farther? I really feel that I can not vanish, considering that absolutely nothing vanishes in this planet, but that I shall constantly exist and usually have existed. I really feel that outside of me and earlier mentioned me there are spirits, and that in this world there is fact.Yes, that is NRI Legal Services principle, said NRI Legal Services , but it is not that which can encourage me, pricey friend—life and death are what convince. What convinces is when a single sees a becoming pricey to one, bound up with one’s possess daily life, prior to whom 1 was to blame and had hoped to make it appropriate ( NRI Legal Services voice trembled and he turned away), and suddenly that being is seized with soreness, suffers, and ceases to exi. Why? It cannot be that there is no reply. And I imagine there is. That’s what convinces, that is what has certain me, explained NRI Legal Services .Yes, indeed, of system, said NRI Lawyer , isn’t that what I’m saying?No.NRI Legal Services 9876616815 – Top Guidelines Of NRI Legal Services by SimranLaw It was getting dusk when NRI Legal Services and NRI Lawyer up to the front entrance of the home at Chandigarh. As they approached the home, NRI Legal Services with a smile drew NRI Lawyer attention to a commotion likely on at the back again porch. A female, bent with age, with a wallet on her again, and a limited, extended-haired, youthful guy in a black garment had rushed again to the gate on looking at the carriage driving up. Two females ran out following them, and all four, hunting round at the carriage, ran in dismay up the methods of the back porch.Those are NRI Lawyer ‘God’s folk,’ mentioned NRI Legal Services . They have mistaken us for my father. This is the one make a difference in which she disobeys hello He orders these pilgrims to be driven absent, but she receives theBut what are ‘God’s folk’? asked NRI Lawyer . NRI Legal Services had no time to response. The servants arrived out to fulfill them, and he asked in which the outdated NRI Legal Services was and regardless of whether he was predicted back again shortly.The previous NRI Legal Services had absent to the town and was envisioned back any moment. NRI Legal Services led NRI Lawyer to his very own residences, which had been constantly retained in excellent get and readiness for him in his father’s house he himself went to the nursery.Let us go and see my sister, he mentioned to NRI Lawyer when he returned. I have not located her yet, she is hiding now, sitting down with her ‘God’s folks.’ It will provide her right, she will be perplexed, but you will see her ‘God’s folks.’ It’s genuinely very curious.What are ‘God’s folk’? questioned NRI Lawyer .Come, and you will see for oneself. NRI Legal Services genuinely was disconcerted and purple patches came on her face when they went in. In her comfortable space, with lamps burning before the icon stand, a young lad with a lengthy nose and lengthy hair, donning a monk’s cassock, sat on the couch beside her, powering a samovar. In close proximity to them, in an armchair, sat a slender, shriveled, old lady, with a meek expression on her childlike confront.NRI, why did not you alert me? said the NRI Legal Services , with mild reproach, as she stood prior to her pilgrims like a hen ahead of her chickens.Delighted to see you. I am extremely happy to see you. Ah, and Property Lawyer is here too! explained NRI Legal Services , glancing with a smile at the youthful pilgriNRI! mentioned NRI Legal Services , imploringly. Il faut que vous sachiez que c’est une femme, * said NRI Legal Services to NRI Lawyer .NRI, au nom de Dieu! *(two) NRI Legal Services recurring. You should know that this is a female. Aggrieved by the judgment and orders dated 25.6.2003 passed by the High Court of Karnataka in Regular First Appeal No. 201 of 1992, the appellants have preferred this appeal by special leave. By impugned judgment, High Court partly allowed the appeal, set aside the judgment of the trial court and decreed the suit of the plaintiff-respondents herein for specific performance as well as for recovery of possession of suit items I, II and III. 2. The factual background as will appear from the trial court judgment need to be highlighted and reproduced hereunder. 3. The plaintiff-respondent claimed to be the son of Late P. Abdul Rahiman Sab alias Jambusab. The late Jambusab had three wives. The first wifes son was Abdul Sakoorsab, who died in the year 1967. The first plaintiff and his younger brother R.A. Rasheed are the children of Jambusab from his second wife Azizabi. Through the 3rd wife Mahajambi, Jamusab had begotten 4 children namely, A. Abdul Subhan, R. Abdul Majeed, Maqubal Jan and Aktharunnisa. The children of late Jambusab could not agree to divide the properties of late Jambusab. They litigated and ultimately in R.A. 133/49-50 on the file of the High Court, a final decree was passed and the properties described in the Schedule to the plaint fell to the joint share of the first plaintiff and his younger brother R.A. Rasheed. The date of the decree is 22.08.1950. The first plaintiff and his younger brother thus became the exclusive joint owners of the suit schedule property and from the date of the High Court decree namely 22.08.1950. The first item of the suit schedule which was designed as a Cinema building was leased jointly by the first plaintiff and his younger brother R.A. Rasheed to late N.K. Subbaiah Shetty and one Rattanhalli Ramappa jointly by means of a registered lease deed dated 26.02.1951 specifying therein a period of 15 years for the running of the lease. The said lease by the terms provided inter alia for a monthly rent of Rs. 400/- to be paid in equal halves to the first plaintiff and R.A. Rasheed. The lessees had to advance Rs.10,000/- which will be treated as a charge on item no. 1 of suit Schedule. All the equipments such as cinema projector, electric generator, furniture and other accessories were purchased by the said lessees which they had to provide under the contract and the theatre was equipped for showing films. It was also a term under the lease that these equipments projector, generator etc., should become the property of the first plaintiff and his brother R.A. Rasheed on the termination of the lease. While only Rs. 5,000/- was given as advance, the expenses of the balance of Rs. 5,000/- which was retained by N.K. Subbaiah Shetty and Rattanhalli Ramappa has been accounted for and thus only Rs. 5000/- is the actual amount of advance. 4. But, N.K. Subbaiah Shetty and his joint tenant Ratanhalli Ramappa who were astute businessmen found later 2 years that they could not manage the theatre property to earn profits. They both successfully induced the inexperienced 1st plaintiff to enter into a contract dated 05.08.1953 with them which ostensibly appear to be a sub-lease of their rights to the 1st plaintiff. Though the 1st plaintiff and his younger brother had become entitled to be rightfully to the equipments in the cinema theatre as per the terms of the lease date 26.02.1951, they were not even under any liability to pay the same on the termination of the lease. N.K. Subbaiah Shetty astutely got a provision made in the so-called sub-lease dated 05.08.1953 that he should get a rent of Rs. 250/- for himself which was in reality interest for sum of Rs. 5000/- given as advance, but which had been recovered by N.K. Subbaiah Shetty during the period the lease was subsisting in his favour. Besides nothing was due to be paid to N.K. Subbaiah Shetty as it was voluntary surrender to ease evidence by the so- called sub-lease. The return of Rs. 250/- per month which could only be demanded as interest on the sum of Rs. 5000/- advanced was usurious Loans Act in force in Mysore. The so called sub-lease dated 05.08.1953 was therefore illegal for want of consideration. Since Rs. 5000/- could not be claimed legally as it has been recovered and also the provisions for payment of Rs. 250/- P.M. to N.K. Subbaiah Shetty, being usurious interest was also not recoverable in law. The so called lease dated 05.08.1953 operated in Law only as a surrender of lease, as the fight of lessor as well as lessee became merged in the plaintiff who was a joint owner of item No. 1 of the suit schedule under Section 111(d) of the T.P. Act. He could not be deemed to be a lessee of his own building and the sub-lease was void to the extent that it provided Rs.250/- to be paid as rent to N.K. Subbaiah Shetty, the possession which accrued to the plaintiff on the execution of the deed dated 05.08.1953 was, therefore, free from all liability to pay any amount to N.K. Subbaiah Shettty. R.A. Rasheed, the brother of the 1st Plaintiff executed a pronote dated 24.01.1953 benami in the name of C. Shambulingaiah the real beneficiary being the 1st defendant. The defendant filed a suit in O.S. 1/54 as Power of Attorney Holder of C.Shambhulingaiah against R.A. Rasheed in the then Court of Sub-Judge, Mandya and obtained ex parte decree and in Execution No. 38/54 got the undivided half share of R.A. Rasheed in the Suit schedule 1st item attached. Thereafter, in Ex. No. 5/56 the 1st defendant as Power of Attorney holder sued out further execution and brought to sale the half share of R.A. Rasheed and purchased the same in the name of C. Shambulingaiah in Court auction held on 12.07.1956, the bid amount being Rs. 8359.37. Though the half share itself was worth a lakh of rupees at lease R.A. Rasheed himself was kept in dark throughout as services of all the processes were made to appear, as though R.A. Rasheed had refused them. Again in the name of Shambulingaiah who was the brother-in-law of the 1st defendant delivery was sued out and since actual delivery could not be obtained of the undivided half share of R.A. Rasheed the 1st defendant maneuver to take symbolic delivery of the said half share on 02.04.1958 in Misc. 34/56. Thereafter, the first defendant arranged to get a sale deed executed by C. Shambulingaiah in the name of Amruthamma the 2nd defendant, wife of the 1st defendant. There was no consideration paid for this deed. It means the representative, a substitution of one benamidar for another, the motive being that the properties should remain with the 1st defendant in the name of his wife. 5. The first plaintiff had executed a demand pronote for Rs.1335/- dated 10.05.1952 in the name of one Krishna Shastry, who was also a benamidar for first defendant. It is learnt that a suit was got filed in O.S.449 of 1953 on the file of the Munisiff, Srirangapatna, and getting refusal endorsement made on the summon keeping this 1st plaintiff ignorant of the said proceedings. The first defendant got an ex-parte decree behind the back of the plaintiff. It is learnt that the said decree was got transferred to the name of 1st defendant and the 1st defendant sued out execution in Ex.No.217/61 on the file of the Munsiff, Srirangapatna and got attached the half share of the first plaintiff in the suit schedule items 1 to 3. Of course, all the processes of the Court were got done in secret by the 1st defendant who has vast experience in court work, and the 1st plaintiff was throughout ignorant of the same. After attachment, the first defendant induced N.K. Subramanya Shetty to lend his name, thus gave an assignment to the name of N.K. Subramanya Shetty with the conveyance of his brother N.K. Subbaiah Shetty of the decree in O.S.449/52. This again was maneuvered without any consideration to please the multi-millionaire N.K. Subbaiah Shetty, who himself was anxious to get a share in illegal gains. It is learnt that the 1st defendant, however, got a general power of attorney from N.K. Subbaiah Shetty and continued further execution proceedings suppressing the facts that only half the share of the first plaintiff at least worth Rs.1,50,000/- in items 1 to 3 could be brought to sale. The 1st defendant put up the entire schedule item for sale and bid at the court auction on 14.02.1962 for a paltry sum of Rs.325/-. Thus stabbing at the back of the 1st plaintiff and got the same confirmed on 06.04.1962. The sale and subsequent confirmation is vitiated and void as only half share was attached, but against the attachment itself the full properties including the properties which were not subject matter of the attachment were brought to sale and purchased. 6. Since the first defendant openly boasted that he had in reality become the owner of the entire properties of the first plaintiff, the first plaintiff made inquiries and came to know about the treacherous and illegal acts of the 1st defendant who through abuse of processes of court had maneuvered to get the sale held and confirmed including the half share of this first plaintiff, and the first plaintiff, therefore, got filed Misc.No.49 of 1962 to set aside the sale on the ground of fraud. There was protracted litigation which ended in a compromise petition dated 17.02.1966 being filed whereby the first plaintiff agreed to pay Rs.7000/- within three months from the date of compromise and if such payment was made within time the petition to stand allowed and in default the petition to stand dismissed. The first plaintiff thereafter paid the amount in 3 installments. The first installment being Rs.2000/-, in all Rs.7000/- within three months as per compromise petition, to the counsel for the first defendant. The first defendant has acknowledged the receipt of the above payments to his counsel in a letter dated 10.05.1966 written by him to the first plaintiff and again in another letter of first defendant to first plaintiff dated 31.07.1967. However, it is learnt that the first defendant treacherously kept quite without getting the payment in full reported to court with ulterior motives. Also, the first defendant who had got half the share of Abdul Rasheed conveyed benami to the name of his wife Amruthamma, the second defendant entered into an agreement with the first plaintiffs wife on 29.11.1965 executed by the 1st defendant as power of attorney holder of the 2nd defendant whereby he agreed to convey half the share of and another house which is described as 4th item in suit schedule for a sum of Rs.18,000/-. The consideration of Rs.18,000/- for this agreement has been paid by the first plaintiff on behalf of 2nd plaintiff as follows:- (a) As per agreement dated 29.11.1965 as acknowledged therein Rs.8000/- has been paid to the 1st defendant. (b) As per receipt dated 09.02.1966 executed by 1st defendant, Rs.5500/- has been paid thus totalling Rs.13,500/- out of Rs.18,000/-. 7. Thereafter, the first defendant alleged to have executed a fresh agreement dated 02.09.1967 for himself and as power of attorney holder of both 2nd defendant and N.K. Subramanya Shetty, agreeing to convey by a separate sale deed also item 1 of suit schedule in full and also item 2 of suit schedule (house in Gowligara Street) and item 3 land, item 4 house for consideration of Rs.25,000/-which was fully paid as detailed below:- (a) Rs.7000/- paid to 1st defendant as recounted in para-9 supra and acknowledged in letters dated 10.05.1966 and 31.07.1967 towards compromise petition in Misc.49 of 1962. (b) Rs.4500/- paid before witnesses on 02.09.1967 when the agreement was executed. (c) Rs. 8000/- paid to first Defendant as per agreement dated 29.11.1965. (d) Rs.5500/- paid as per receipt dated 9.2.1966 wherein the amount of Rs.8000/- as per (a) above have also been acknowledged. 8. The first plaintiff allegedly running a cinema theatre item No.1 of the suit schedule all along, as he was in possession of the same ever since 01.08.1953. However, in the morning of 05.09.1967, the first plaintiff was surprised to find himself under arrest along with his sons and another Pasha, a relative, by the police authorities. It was learnt that the first defendant had lodged a complaint to the police that he had been dispossessed of item No.1 of suit schedule Cinema Building even though he had no possession. There were account books and other important papers and several materials forming part of the cinema building belonging to the first plaintiff and kept within the premises of item No.1 of the suit schedule. The first defendant with whom K.N. Subramanya Shetty and N.K. Subbaiah Shetty were in collusion with the help of police got the first plaintiff dislodged from item No.1 of suit schedule with the cinema equipment, furniture etc. The papers included among others receipt executed by defendant No.1 and N.K. Subbaiah Shetty for monies paid by the plaintiff from time to time and the accounts books contained entries in respect of this payment. The first and N.K. Subbaiah Shetty, thus, were successful in laying their hands on valuable evidence and it is believed that show of force by the police and subsequently dispossession of the first plaintiff from item No.1 maneuvered to get these valuable records into their custody for being hushed up. The police did not even get the mahazar written at the time of their forcible entry into item No.1. The complaint of the first defendant became subject matter in C.C. 1758/67 and C.C. 370/68 before the Special First Class Magistrate, Srirangapatna and in the said cases the plaintiff and other accused were also acquitted. The finding is that the so called delivery taken by the 1st defendant in the civil court is only a paper delivery and not amount to dispossession of the plaintiff of the first item of the suit schedule. The Magistrate also directed return of the key of the first theatre for the lock which had been kept by the police at the time of illegal seizure to the first plaintiff. This was symbolical delivery of the actual possession to which the 1st plaintiff was entitled in law. The 1st plaintiff has filed an application for actual possession being delivered in pursuance of the judgment before Special 1st Class Magistrate, Srirangapatna, which was pending. The plaintiffs have also included in this suit claim for damages, caused to them by illegal arrest and distraint of their articles and account books and papers and also mesne profit accruing due to dispossession which has occurred on 05.09.67. Since the defendant nos. 1 and 2 and N.K. Subramanya Shetty have failed to execute a sale deed in accordance with the terms of the agreement dated 02.09.67 entered into by the first defendant for himself and on behalf of defendant no.2 and N.K. Subramanya Shetty in respect of item No.1 of suit schedule, the suit was filed for specific performance of contract dated 02.09.67. As some of the documents have been produced by the first plaintiff in criminal cases before the Special 1st Class Magistrate, Srirangapatna, certified copies of the same were produced along with the original documents in the custody of the plaintiff with document list in triplicate for perusal of this Court. N.K. Subbaiah Shetty has been included so as to give a binding decree against him also. 9. The trial court formulated the following issues for determination:- 1) Whether the 1st defendant was the Power of Attorney Holder of the 2nd Defendant? 2) Whether the 1st defendant for himself and as Power of Attorney Holder of 2nd defendant executed an agreement of sale dated 2.9.1967 agreeing to convey the plaint schedule properties in favour of the plaintiff? 3) Whether under the said agreement the plaintiff paid the amount to the 1st defendant as mentioned in para 11(a) (b) (c) (d) of the plaint? 4) Whether the plaintiffs are entitled to the specific performance of the agreement of the sale and for possession of the schedule properties? 5) Whether the plaintiffs are entitled to Rs.93,600/- towards the mesne past profits? 6)(a) Whether the proceedings in Ex. No.217/61 and Misc. No.34/69 and orders thereon are fraudulent and without jurisdiction and as such they are void, illegal and wrongful as stated in para ¼ of the plaint? (b) Whether the defendants are estopped in challenging the suit agreement dated 2.9.67 by their conduct for the reasons stated in para 16 of the plaint? (c) Whether the plaintiffs prove that they are ready and willing to perform their part of contract of sale as per agreement dated 2.9.1967? (7) Whether the defendants are entitled to compensatory costs under Section 35(a) of C.P.C.? (8) To what reliefs are the parties entitled? Issue No.1 has been answered in affirmative holding that defendant- appellant no.1 was the P.O.A. holder of his wife defendant no.2. 10. While deciding issue Nos. 2-4 together, the trial court came to the conclusion that the plaintiff-respondent failed to prove that the agreement of sale dated 2.9.1967 was executed by the defendants-appellants and, therefore, got entitled to the specific performance of agreement to sell. The reasoning given in deciding the issues inter alia are that the alleged agreement was executed in a quarter sheet of paper written in small letters. No reason has been attributed as to why a small piece of paper was used for writing the agreement ExP-1. The relevant portion of the finding arrived at by the trial court can be extracted hereunder :- If we carefully go through the document at Ex. P.4 it is clearly stated that the defendant 1 as the power of attorney of the 2nd defendant and Subramanya Shetty as executed Ex.P.1 in favour of the first and the 2nd plaintiff, after taking Rs.4,500/- this documents has been written on very old quarter sheet piece of paper which is written in very small letters. Ex.P.1 is not at all written in usual course. No reasons are assigned in the evidence of the PW.1,2 and 5 as to why a small piece of paper is used for writing Ex.P.1. Ex.P.1 is written in a city like Mysore. It is not written in a remote small village, wherein the scarcity of paper can be expected. It is further pertinent to note here that the shop premises of the first defendant was situate admittedly in Santhepete which is very near to Devaraja Market and Srirampet, which are heart of business centers of Mysore. Further, Ex.P.1 is admitted written before Noon. . time P.W.1 has stated that between 9 a.m. to 1 p.m. he has written Ex.P.1. Further P.W.5 has stated by about 2-30 p.m. Ex. P.1 is written, P.W.2 has stated by about 12 noon Ex.P.1 is written, that means Ex.P.1 is written in a broad day light. If the handwriting contained in Ex.P.1 in small letters reduced to writing atleast the same will cover 2 full sheets of papers meaning thereby it may go to cover 4 pages of hill size papers. No reasons are assigned as to why Ex.P.1 is written in such a congested manner. Non availability of the paper to write Ex.P.1 cannot at all be expected nor anticipated in a city of Mysore, that too near the first defendants shop which is in the business centre of Mysore City. It is admitted by all the witnesses that there are several shops of stamps vendors and advocates offices. If that be the case, that would not have been any difficulty to secure the required paper to write Ex.P.1. Further, if we carefully go through the contents of Ex.P.1, it goes to show that all the suit properties are agreed to have been sold for Rs.25,000/- and the amount of Rs.20,500/- has been paid to the defendant earlier to 02-09-67. Further, it is also clear that the amount of Rs.4,500/- was also paid to the defendant 1. That means only the stamp papers to get the registered sale deed were required to be obtained. No reasons are assigned the any of the plaintiffs witnesses as to what was the difficulty in purchasing the stamp paper to execute the reg. Sale deed regarding the sale mentioned in Ex.P.1. It is not the case of the plaintiff, that they were unable to purchase required stamp papers on the date of Ex.P.1 due to paucity of the funds. If it was really a genuine sale or tried to be depicted before Court, definitely the reg. Sale deed itself would have been got executed since except appearing before the sub-registrar the first defendant is not required to do anything else but to sign the reg. Sale deed and if the sale was really a genuine sale nothing prevented the plaintiff to take the first defendant to the office of the Sub-Registrar and to get executed the reg. Document in the office of the concerned/Sub-registrar Pandavapura but no reasons assigned as to why the reg. Sale deed is not got executed from the 1st defendant who is admittedly the holder of the general power of attorney from the 1st defendant and Subramanya Shetty, who were the owners of the suit schedule properties on 02-09-67. Further, it is pertinent to note here that though it is mentioned in Ex.P.1 that the plaintiffs were required to make some arrangements regarding the amount to purchase the stamp papers and the registration fees etc. but none of the witnesses P.Ws. 1,2 and 5 speak about this aspect of the case. 11. On the question of payment of the consideration amount, the trial court gave finding against the respondents. Finally, the trial court held that since issue nos. 2 to 4 have been decided against the plaintiffs, the relief for specific performance cannot be granted. 12. High Court being the first appellate court, re-appreciated the evidence and came to the conclusion that the findings recorded by the trial court are perverse in law. The appellant court discussed the evidence of PW-1, the scribe of the document, who deposed that the agreement was written as per instructions given by appellant No.1 and the said document was signed by him. The appellate court further discussed the evidence of other PWs who have attested the document Ex.P1. The Appellate Court found that in a criminal proceeding between the parties, the witness gave evidence and produced the agreement Ex.P1 which was marked by the criminal Court as Ex.D. 13. The Appellate Court dealt with the relevancy of the evidence and the judgment recorded by the Criminal Court and held as under: 17. The conclusion drawn by the Criminal Court with regard to the document “ Ex.P.1 in regard to its execution etc. are certainly relevant and it can be relied upon as a piece of evidence by the plaintiffs in support of their case. The observations made by the Criminal Court regarding execution of agreement “ Ex.P.1 in its judgment “ Ex. P.4 are certainly admissible U/s 13 of the Indian Evidence Act in support of the claim of the plaintiffs regarding execution of the document “ Ex.P.1 by defendant No.1. Therefore, the Trial Court was not at all justified in ignoring such evidence on the ground that the judgment of the Criminal Court is not binding on the Civil Court. May be, that the judgment of the Criminal Court is not binding on the Civil Court. But, the observations made by a competent Court with reference to certain document would certainly be relevant even in a civil case, where the very same document was a subject matter of challenge. 18. In the instant case, it is not in dispute that the very same document “ Ex.P.1 was produced before the Criminal Court wherein, plaintiff No.1 was prosecuted on the charge of trespass and the Criminal Court having examined the said document has made certain observations with reference to such document and that being so, when the very same document sought to be questioned in a civil case, the observations by a Criminal Court will certainly have relevance. In fact, the learned counsel for the respondents had advanced a contention that this document was created/concocted for the purpose of defence in the criminal case. In view of such contention raised on behalf of the respondents, the observations made with reference to this document by the Criminal Court in its judgment “ Ex. P.4 will certainly have relevance in the present case. The observations made by the Criminal Court in its judgment “ Ex.P.4 regarding the execution of the document “ Ex.P.1 lends credence to the evidence of PWs 1,2 & 5. There could be no serious dispute that the plaintiffs were the original owners of the suit properties and that the same were lost in a series of litigation and ultimately the said properties which were once lost to the plaintiffs were sought to be reconveyed to the plaintiffs by virtue of this agreement “ Ex.P.1, executed in their favour by defendant No.1. Under the circumstances, there is no reason to disbelieve the execution of the document “ Ex.P.1 in favour of plaintiffs. No doubt it was executed on a quarter sheet of paper and not on a proper stamp paper and that further the contents of the document “ Ex.P.1 have been written in small letters. But then it cannot be said, that is not a document. It has to point out that the document is defined under the Indian Evidence Act and it means, any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means intended to be used or which may be used for the purpose of recording that matter. A writing is a document, whether writing is made on a quarter sheet or paper or a full sheet, it is a document within the meaning of the Evidence Act and that merely because the writing is on a quarter sheet of paper, it does not cease to be a document. The only requirement is that the party relying upon a document must prove the same in accordance with law. The mode of proving the contents of a document has been dealt with, in Sections 61 to 66 of the Indian Evidence Act. The contents of a document may be proved either by the primary or secondary evidence. Primary evidence means, the document itself produced for the inspection of the Court. In the instant case, it is not in dispute that the original agreement itself was produced for the inspection of the Court as per Ex. P.1. The document in question being an agreement of sale or a reconveyance agreement, it does not require attestation. Section 67 of the Evidence Act refers to document other the document required by Law to be attested. It shows that the signature of the person alleged to have signed a document i.e. execution must be proved by the evidence with the signature purporting to be that of the executants is in his handwriting and the other matter in the document i.e. its body must also be proved by proof of handwriting of a person purporting to have written the document. In the instant case, the agreement “ Ex.P.1 was stated to have been written by its scribe “ PW.1 at the instructions of defendant No.1 and after the document was written, it was signed by defendant No.1. Therefore, what was required to be proved in the instant case by the plaintiffs to prove the execution of document “ Ex.P.1 was that it contains the signature of defendant No.1. 14. On the issue of execution of the agreement, the Court came to the conclusion that there are consistent evidence of all the three witnesses that the agreement was executed by the 1st defendant. Accordingly, the appeal was allowed and the judgment of trial court was set aside. 15. Hence, this appeal by special leave by the legal representatives of defendant no.1. 16. Mr. K. Ramamurthy, learned senior counsel appearing for the appellant, assailed the impugned judgment passed by the High Court as being erroneous in law and suffers from serious mis- appreciation of evidence. Learned Counsel, firstly, submitted that issue nos. 6(a) to 6(c) framed by the Trial Court relates to validity and effect of the orders passed in execution proceeding and miscellaneous proceeding. The Trial Court recorded the finding that in execution of decree in execution case no. 216 of 1961 the defendant-appellant was put in possession and objection raised by the plaintiff- respondent herein were rejected. These findings of issue nos. 6(a) to 6(c) were not challenged in appeal before the High Court by the respondents. Further, the High Court held that findings of issue nos. 6(a) to 6(c) need no interference. Having held so, the High Court ought not to have allowed the appeal and decreed the suit. Mr. Ramamurthy, learned senior counsel, submitted that although, the defendant-appellant denied and disputed the existence of agreement, but the High Court, on the basis of evidence recorded in a criminal proceeding decided the suit for specific performance. Learned senior counsel, therefore, submitted that, in the alleged agreement dated 02.09.1967, there is a reference of earlier agreement dated 29.11.1965, but the same was neither produced nor proved in the case which itself is sufficient to disentitle the plaintiff from seeking a decree for the specific performance. It was contended that although, the alleged agreement in question was executed in a quarter sheet of paper without affixing any stamp, but the High Court has erroneously relied upon the said agreement on the basis of the evidence given in the criminal case. Learned senior counsel further submitted that the High Court has committed grave error of law in applying the provisions of Section 13 of the Evidence Act. Learned senior counsel relied upon catena of decisions including decisions rendered by this Court in Anil Behari vs. Latika Bala Dassi & Others.[1955] INSC 28; , AIR 1955 SC 566; Adi Pherozshah vs. H.M. Seervai[1970] INSC 170; , AIR 1971 SC 385; Shanti Kumar Panda vs. Shakuntala Devi, (2004) 1 SCC 438; and State of Bihar vs. Radha Krishna Singh & Others (1983) 3 SCC 118. 17. Mr. Basava Prabhu S. Patil, learned senior counsel appearing for the respondents, on the other hand, submitted that the only issue that was to be decided by the High Court was as to whether there was a binding agreement executed by the defendants-appellants. Learned senior counsel submitted that the High Court after considering the evidence of the scribe and other witnesses and also considering the evidence produced in a criminal proceeding and the finding recorded in the said proceeding has come to the right conclusion that the agreement was executed by the defendants. The High Court further came to the finding that payment of consideration amount to the defendants has been proved and that the signature on the agreement was admitted by Nanjappa, who was a signatory of the agreement. According to the learned senior counsel, the finding recorded by the High Court is based on appreciation of evidence and, therefore, such finding of fact needs no interference by this Court. 18. Before we express our view on the findings recorded by both the trial court and the High Court while passing a decree for specific performance, we would like to discuss first the settled proposition of law in this regard. 19. There is no dispute that even a decree for specific performance can be granted on the basis of oral contract. Lord Du Parcq in a case (AIR 1946 Privy Council) observed, while deciding a suit for specific performance, that an oral contract is valid, binding and enforceable. A decree for specific performance could be passed on the basis of oral agreement. This view of a Privy Council was followed by this Court in the case of Koillipara Sriramulu vs. T. Aswatha Narayana[1968] INSC 55; , AIR 1968 SC 1028, and held that an oral agreement with a reference to a future formal contract will not prevent a binding bargain between the parties. 20. However, in a case where the plaintiff come forward to seek a decree for specific performance of contract of sale of immoveable property on the basis of an oral agreement or a written contract, heavy burden lies on the plaintiff to prove that there was consensus ad idem between the parties for the concluded agreement for sale of immoveable property. Whether there was such a concluded contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immoveable property were concluded between the parties. 21. In a suit for specific performance of a contract, the Court has to keep in mind Section 20 of the Specific Reliefs Act. This Section preserves judicial discretion to grant decree for Specific performance. However, the Court is not bound to grant specific performance merely because it is lawful to do so. The Court should meticulously consider all facts and circumstances of the case and to see that it is not used as an instrument of oppression to have an unfair advantage not only to the plaintiff but also to the defendant. 22. In the case of Surya Narain Upadhyaya vs. Ram Roop Pandey and others, 1995 Supp (4) SCC 542, this Court while considering Section 20 of the Specific Relief Act held as under:- 4. Though the decree for specific performance is a discretionary power, yet the court is not bound to grant such a relief merely because it is lawful to do so; but the discretion of the court is not arbitrary, but sound and reasonable, guided by judicial principles of law and capable of correction by a court of appeal. Therefore, the discretion should be properly exercised keeping in view the settled principles of law as envisaged in Section 20 of the Act. This case demonstrates that the High Court took irrelevant consideration into account to refuse to grant the decree for specific performance. It also committed manifest illegality in reversing the concurrent finding of facts recorded by the trial court as well as the first appellant court, namely the appellant has always been ready and willing to perform his part of the contract. 23. It is equally well settled that relief of specific performance is discretionary but not arbitrary, hence, discretion must be exercised in accordance with sound and reasonably judicial principles. The cases providing for a guide to courts to exercise discretion one way or other are only illustrative, they are not intended to be exhaustive, In England, the relief of specific performance pertains to the domain of equity, but in India the exercise of discretion is governed by the statutory provisions. 24. In the case of Mayawanti vs. Kaushalya Devi[1990] INSC 130; , (1990) 3 SCC 1, this Court observed as under:- 8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation. 25. In the case of K. Prakash vs. B.R. Sampath Kumar, (2015) 1 SCC 597, this Court held: 13. Indisputably, remedy for specific performance is an equitable remedy. The court while granting relief for specific performance exercises discretionary jurisdiction. Section 20 of the Act specifically provides that the courts jurisdiction to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with the sound and reasonable judicial principles. 14. The Kings Bench in Rookes case said: Discretion is a science, not to act arbitrarily according to mens will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are not to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others, allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other court, not even the highest, acting in a judicial capacity is by the Constitution entrusted with. 15. The Court of Chancery in Attorney General v. Wheate followed Rookes case and observed: (ER p. 666) the law is clear, and courts of equity ought to follow it in their judgments concerning titles to equitable estates; otherwise great uncertainty and confusion would ensue. And though proceedings in equity are said to be secundum discretionem boni viri, yet, when it is asked, vir bonus est quis? The answer is, qui consulta patrum, qui leges juraque servat. And as it is said in Rookes case, that discretion is a science not to act arbitrarily according to mens wills and private affections; so the discretion which is to be executed here, is to be governed by the rules of law and equity, which are not to oppose, but each in its turn to be subservient to the other. This discretion, in some cases follows the law implicitly; in others assists it, and advances the remedy; in others, again, it relieves against the abuse, or allays the rigour of it; but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this, nor any other court, not even the highest, acting in a judicial capacity, is by the constitution entrusted with. This description is full and judicious, and what ought to be imprinted on the mind of every Judge. 16. The principle which can be enunciated is that where the plaintiff brings a suit for specific performance of contract for sale, the law insists upon a condition precedent to the grant of decree for specific performance: that the plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises its discretion in one way or the other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated under Section 20 of the Specific Relief Act, that a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirements for getting such a decree are established then the court has to exercise its discretion in favour of granting relief for specific performance. 26. Reference may also be made by this Court in the case of Zarina Siddiqui vs. A. Ramalingam, 2015 (1) SCC 705, this Court observed as under:- 33. The equitable discretion to grant or not to grant a relief for specific performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misleads the court then such discretion should not be exercised by refusing to grant specific performance. 27. In the light of the principles laid down by this Court in the number of decisions referred hereinabove, we have to consider as to whether the decision arrived at by the High Court can be sustained in law. 28. In the instant case while deciding the issue as to whether the agreement of 1967, allegedly executed by the defendants, can be enforced, the Court had to consider various discrepancies and series of legal proceedings before the agreement alleged to have been executed. In the agreement dated 2.9.1967, there is reference of earlier agreement dated 29.11.1965 where under Rs. 18,000/- was paid to the defendant-appellant which was denied and disputed. Curiously enough that agreement dated 29.11.1965 was neither filed nor exhibited to substantiate the case of the plaintiff. The High Court put reliance on the agreement dated 2.9.1967 written in a quarter sheet of paper merely because of the fact that said quarter sheet of paper was produced before the Magistrate in a criminal proceeding. In our view, the High Court is not correct in holding that there is no reason to disbelieve the execution of the document although it was executed on a quarter sheet of paper and not on a proper stamp and also written in a small letter. The High Court also misdirected itself in law in holding that there was no need of the plaintiff to have sought for the opinion of an expert regarding the execution of the document. 29. Indisputably, various documents including order-sheets in the earlier proceedings including execution case were filed to nullify the claim of the plaintiff regarding possession of the suit property but these documents have not been considered by the High Court. In our considered opinion the evidence and the finding recorded by the criminal courts in a criminal proceeding cannot be the conclusive proof of existence of any fact, particularly, the existence of agreement to grant a decree for specific performance without independent finding recorded by the Civil Court. 30. After examining the entire facts of the case and the evidence produced on record, we are of the definite opinion that it is not a fit case where the discretionary relief for specific performance is to be granted in favour of the plaintiff-respondent. The High Court in the impugned judgment has failed to consider the scope of Section 20 of the Specific Relief Act and the law laid down by this Court. 31. For all these reasons, this appeal is allowed and the impugned judgment passed by the High Court is set aside. Consequently, the judgment of the learned trial court is restored. Hence, the suit is liable to be dismissed. Leave granted. The appellant herein, in these appeals, challenges the validity of the judgment dated 18.07.2014 passed by High Court of Judicature at Gujarat cancelling the anticipatory bail which was granted to the appellant by the Additional Sessions Judge, Court No.16 of Ahmedabad City Sessions Court. Before coming to the factual narrative of a long drawn event that has taken place in respect of criminal trial pending against the appellant, we would like to state, in capsiculated manner, the circumstances under which the matter has landed up in this Court. The appellant and respondent No.2 (hereinafter referred to as the ‘prosecutrix’) were neighbours at the relevant time and known to each other. On 29.05.2001, the prosecutrix wrote a complaint to the Assistant Police Commissioner, Crime Branch, Gaekwad Haveli, Ahmedabad City alleging the harassment that was meted out to her by the appellant over a period of time. Allegations of rape, emotional blackmail and threats were levelled against the appellant therein. After two days i.e. on 31.05.2001, her statement was recorded by a Police officer of the concerned Police Station wherein she again levelled the allegations of maltreatment, blackmail etc. However, in this statement of hers, which was recorded by the Investigating Officer (I.O.), allegations of rape were conspiciously missing. On the basis of statement made on 31.05.2001, F.I.R. was registered and charge under Section 506(2) of Indian Penal Code (IPC) was framed in the year 2001. The appellant was admitted to bail in the said case. Trial has proceeded which has not made much headway for number of years. In the year 2010, the prosecutrix made an application for addition of charge under Section 376 IPC as well. The Metropolitan Magistrate held that the said application should be taken into consideration only after chief examination of the complainant. The prosecutrix challenged the said order before the Court of City Session Judge at Ahmedabad. The matter was remanded back to the Metropolitan Magistrate with a direction that the application shall be heard afresh in its entirety after giving opportunity to both parties. On 31.03.2012, the Metropolitan Magistrate directed the Police to carry out special investigation under Section 173(8) of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’). Being not satisfied, the parties challenged the above order. The matter travelled up to this Court wherein certain directions were issued. Ultimately, the Police filed a revised chargesheet stating that a prima facie case under Section 376 IPC was also made out. In view of addition of charge under Section 376 IPC, the Magistrate passed the order on 25.04.2013 for committal of proceedings to the Sessions Court and taking the appellant into custody. However, execution of this order for taking the appellant into custody was stayed till 07.05.2013. During this period, the appellant moved the City Sessions Court No.16 at Ahmedabad for grant of anticipatory bail which was ultimately granted on 18.05.2013. Against this order of grant of anticipatory bail, the prosecutrix filed criminal revision petition which has been allowed by the High Court vide impugned order dated 18.07.2014 cancelling the anticipatory bail granted to the appellant. As pointed out above, it is the justification and legality of this order which is in question before us in the instant appeals. The aforesaid brief resume depicts that the charge was framed against the appellant initially in the year 2001 only under Section 506(2) of IPC. Insofar as charge under Section 376 of IPC is concerned, it is added only in the year 2014. Further, the original charge was framed under Section 506(2) IPC on the basis of the statement recorded on 31.05.2001 which was treated as FIR and which did not contain the allegation of rape. If one has to go by these facts, coupled with the fact that allegation of rape is of the year 1997-98, one may not find fault with the order of the Additional Session Judge granting anticipatory bail. However, the impugned order passed by the High Court whereby the anticipatory bail order of the Additional Session Judge is cancelled, does not take the matter in such a simplistic manner and, therefore, a detailed discussion on the issue has become imperative. The High Court took note of the circumstances which led to the addition of charge under Section 376 IPC at a belated stage. Thus, it would be necessary to take stock of those detailed events and thereafter decide as to whether the order of the High Court is sustainable or not. These facts are recapitulated with elaboration which is absolutely necessary for our purposes, as under: As mentioned above, before registration of the FIR on 31.05.2001 on the basis of the statement, the prosecutrix had filed a complaint on 29.05.2001 before the Assistant Commissioner of Police, Crime Branch. In this complaint, she stated that she is a housewife and had been residing at 1, Navpad Tenement, Opposite Nava Vikas Gruh, Behind Opera for 1½ years. She further mentioned that prior to shifting to this place, she was residing with her in-laws at Sanand for 10 years. She was married, with three children, and her husband was a Jeweller. She alleged in the complaint that about 2½-3 years prior thereto, she had gone to C.N. Vidhyalaya where her daugher Devel was studying. To return home, she was to catch a Bus. When she was standing at the Bus Stand, the appellant, who was her neighbour, passed through that place in his car and on seeing the prosecutrix, he asked her to sit in the car as he was also going home. Though, she initially refused but thereafter she sat in the car being unaware of his malafide intentions. Thereafter, he took the car to some uninhabited place near Telav Village, beat her and forcefully raped her. He also threatened her not to narrate the above incident to anybody. Being scared of these threats, she did not tell the incident to anybody. Taking benefit of the circumstances, after one month he repeated the act of rape by giving the threat that if the prosecutrix did not agree, he would tell her husband and others. He took her to Hotel Ellis Town and raped her against her wishes. After that, he threatened her of dire consequences saying that he had taken her photographs. This way he continued to keep relations with the prosecutrix. This complaint further states that she shifted to Ahmedabad but even after coming to Ahmedabad, he started sending letters with the threat to defame her. At that stage, she told her husband and in-laws. She went to Jyoti Sangh, a NGO and encouraged by their support, she lodged the complaint of continuous harassment on the part of the appellant. On 31.05.2001, her statement was recorded in the Police Station by the IO in which the allegations of misbehaviour by the appellant are contained and the entire statement reads as under: The plaintiff Manishaben dictates that though the complaint is lodged against the defendant Bhadresh, he is not impoved till today. Our condition is becoming worst day by day. In these two days, Bhadresh is making horrible face reading while our access and is doing abusive and filthy behaviour. Yesterday, during the night hours at about 8.15 hours, mother of Bhadresh was speaking in a very loud tone in a way that I can hear the same as they are residing in front of us that we will pay maintenance and Bhadresh himself was speaking like this and telling me to live as his KEPT is also speaking like this. He is laughing in a satire manner in front of my house and he is also behaving with my husband in a abusive manner which could not be borne or disclosed. At this time, when we left from Sanand to come to Ahmedabad, workman of Bhadresh was chasing us and was behind us for about 3 to 4 km and I do not know if any other associates were of him or not going ahead, but his associates are remaining present surrounding me in a manner that he was keeping our watch chasing us even though I myself or my husband were not speaking anything. Now, I am worried about my daughter who is growing and becoming young because Bhadresh is also looking to her with bad intention. His intention appears to be mal. I have dictated the above statement in full sound state of mind and without any undue pressure. Before me Sd/- Manish K Mehta Vandana Patva Date: 31.05.2001 31.05.2001 During preliminary inquiries, the Police recorded the statements of counsellors of Jyoti Sangh who confirmed that the prosecutrix had made the statement to them regarding alleged rape by the appellant. Be that as it may, the FIR was registered only under Section 506(2) of IPC on 31.05.2001 bearing C.R. No.II. 3009/2001 and on that basis, charge was framed only under the aforesaid Section on 25.06.2001. Further for one reason or the other, the prosecution case even under the said charge did not make any substantial progress. On 07.12.2010, an application was moved by the prosecutrix for amending the charge by including the offence under Section 376 IPC as well on the basis of complaint dated 29.05.2001 and treating the same as FIR. Initially, the Metropolitan Magistrate did not agree with this request and passed an order to the effect that till the examination-in-chief of the prosecutrix was recorded, it was not justifiable to amend/alter the charge. However, in the revision petition filed against that order, the Sessions Court remanded the case for fresh consideration. After remand, the order dated 31.03.2012 was passed by the Metropolitan Magistrate directing further investigation under Section 173(8) of the Code implying thereby that the necessity of framing of such charge would depend upon the investigation carried out by the Police. Without stating the details, it suffices to mention that the matter was taken by all the parties to the Sessions Court and then to the High Court. Thereafter, the prosecutrix even came up to this Court by way of SLP (Crl.) No.636/2013 against the order dated 23.10.2012 passed by the High Court which had upheld the order of the Magistrate who had already ordered further investigation. Said SLP (Crl.) No.636/2013 was disposed of on 04.02.2013 taking note of the fact that though the Metropolitan Magistrate had ordered further inquiry by the Police on 31.03.2012 with direction to submit the report within four weeks, no such report had been submitted till that date. On that basis, following order was passed: We are informed that till today the police has not submitted the final report pursuant to the order passed by the Magistrate. If that is so, we are both surprised and pain at the inaction of the police and we direct the Investigating Officer of Criminal Case No. 51 of 2011, pending before the Metropolitan Magistrate, as directed by the Magistrate, and submit the final report within four weeks from the date of receipt/production of a copy of this order before him. In view of the above direction, the petitioner does not wish to press this special leave petition any longer. It is dismissed as not pressed. Thereafter, the Police completed the investigation and submitted the report. The Police filed the chargesheet adding Section 376 of the IPC against the appellant and on that basis, an order was passed by the Additional Chief Metropolitan Magistrate on 25.04.2013 thereby committing the case to the Sessions Court and further directing that the appellant be taken into judicial custody, cancelling the bail bond. It is in these circumstances the appellant moved an application for grant of anticipatory bail to the said Sessions Court which was granted on 18.05.2013. As already noted above, the order granting bail to the appellant/accused has been cancelled by the High Court. Mr. Dushyant Dave and Mr. Harin Raval, learned senior counsel appearing for the appellant took us through the material on record on the basis of which it was sought to be argued that there was acquaintance between the appellant and the prosecutrix and the circumstances indicate that the physical relationship, if any, was consensual. It was also submitted that in her statement recorded before the IO on 31.05.2001, there was no allegation of rape; even when the charge was framed under Section 506(2) IPC the prosecutrix did not object to the framing of the said charge simplicitor or insist upon addition of charge under Section 376 of IPC as well; after a gap of more than 9 years from the framing of charge, application was moved for this purpose; in the fresh chargesheet filed by the IO, the IO clearly observed that no other circumstantial evidence could be collected regarding the rape as alleged by the complainant except her statement. It was also submitted that in the complaint made to Jyoti Sangh, NGO, at the end of the complaint which was given by the prosecutrix, there was a noting that no action be taken on the said complaint as the parties were trying to arrive at amicable settlement. The noting reads as under: This case file be kept pending and whenever we want, only then, you do contest this case again and it is the wish of both of them, this case is kept pending. Before me Sd/- Manisha K. Mehta Vandana Patva 29.03.2001 29.03.2001. It was also pointed out that between 2001 and 2010, the prosecutrix did not appear to give her statement. However, the statement of one Vandana Patva, counsel in the said NGO was recorded. Mr. Dave referred to the cross-examination of the said witness wherein this witness had admitted that in the statement dated 31.05.2001 recorded by the Police, no fact regarding rape was stated. It was also not mentioned as to at which place and at what time, incident of rape had taken place. The learned senior counsel, thus, submitted that in these circumstances the learned Additional Session Judge rightly granted anticipatory bail. The reasons adopted by the High Court in cancelling the bail were commented upon by the learned counsel as not based on record, particularly, the observations of the High Court that the prosecutrix had to run a marathon for getting her complaint registered as a FIR and more particularly for addition of charge under Section 376 of IPC. They further submitted that the High Court wrongly recorded that the Sessions Court had failed to assign proper reasons for grant of anticipatory bail. It was pointed out that the move on the part of the appellant in filing criminal cases against the husband of the prosecutrix, in which the prosecutrix husband was acquitted, is treated by the High Court as tampering with the evidence by disturbing the witnesses and on that basis, it is observed by the High Court that the appellant was not entitled to the benefit of anticipatory bail. Submission in this behalf was that even if the complaint or cases lodged by the appellant against the husband of the prosecutrix are presumed to be false, they had nothing to do with the instant case and, therefore, such acts on the part of the appellant could never be treated as tampering with the evidence. The prosecutrix appeared in person and argued her case. She extensively took us through the counter affidavit filed by her in opposition to the present proceedings on the basis of which she hammered the following aspects: (a) The prosecutrix was harrased by the appellant. First act of sexual intercourse was against her wishes and was clearly a rape. After committing this rape, the appellant threatened her and started blackmailing her. On that basis, he took undue advantage of the hapless condition of the prosecutrix in which she was placed and committed subsequent acts of intercourse against her wishes which were nothing but commission of offences under Section 376 of IPC. (b) Various letters were written by the appellant not only to the prosecutrix but to her other family members as well, which showed his continued harassment to the prosecutrix and her family members. (c) The appellant was even having an evil eye on the prosecutrix’s daughter who was of growing age and wanted to blackmail the prosecutrix in this behalf as well. (d) In order to harass the prosecutrix, the appellant even foisted false cases on the husband of the prosecutrix in order to pressurize the prosecutrix to withdraw the case in question. (e) She also submitted that not only in the complaint made to Jyoti Sangh on 19.03.2001, she had levelled allegations of rape, but such allegations were also made in her complaint to the ACP on 29.05.2001. According to her, in fact, the statement which was recorded on 31.05.2001 by the IO was not correctly recorded who intentionally omitted her statement concerning her rape by the appellant, though specifically stated. It is because of this reason that she had to file the application in the trial court for inclusion of charge under Section 376 IPC with the prayer that complaint dated 29.05.2001 before the ACP should be treated as the FIR and not the statement dated 31.05.2001 recorded by the IO. (f) She also submitted that she had to come up to this Court to have the charge for offence under Section 376 of IPC framed against the appellant. Ms. Hemantika Wahi, learned counsel appearing for the State, supported the plea of the prosecutrix. Her submission was that once the charge under Section 376 IPC has been added which was a serious charge and the offence being non-bailable, the proper course of action was to direct the appellant to surrender before the trial court and apply for regular bail. Her submission was that having regard to the seriousness of this charge, it was not a case of anticipatory bail. We have given our thoughtful and serious consideration to the aforesaid submissions on the charges, particularly, keeping in mind that there is a charge of rape against the appellant and the case projected by the prosecutrix is that as a helpless and weak soul, she has been immensely harrassed, physically abused and mentally tortured by the appellant. In the first place, it is necessary to remind ourselves that in the present proceedings, this Court is concerned not about the feasibility of framing of the charge under Section 376 IPC or merit thereof but to the grant of anticipatory bail to the appellant. Therefore, the arguments of the prosecutrix that such a charge is rightly framed and the submissions on behalf of the appellant attempting to find the loopholes and the weakness in the prosecution case, would not be of much relevance to the issue involved. At this stage, it cannot be said as to whether there was any physical relationship between the appellant and the prosecutrix and, if so, whether it was consensual and, therefore, no charge of rape was made out. The fact remains that a charge of rape has been framed. It would ultimately be for the trial court to arrive at the findings as to whether such a charge stands proved or not, on the basis of evidence that would be produced by the prosecution in support of this charge. With these preliminary remarks, we advert to the core issue, namely, whether in the circumstances of this case, appellant was entitled to anticipatory bail or not and whether the High Court was justified in cancelling the anticipatory bail. For this purpose, we would first highlight the admitted position which runs as follows: The allegations of rape go back to the years 1997-1998. No doubt, in the statement dated 19.03.2001 given to NGO Jyoti Sangh by the prosecutrix, she had levelled the allegations of rape. Equally, no doubt, she had repeated these allegations in her complaint to ACP on 29.05.2001 as well. However, for some curious reasons, the allegations of rape did not find mention in her statement recorded by the IO on 31.05.2001 on the basis of which FIR was registered. This possibility cannot be ruled out that the IO did not record the statement correctly and intentionally omitted to mention about the allegations of rape. Whether this, in fact, happened would be tested during trial. However, the fact remains that when the FIR was registered on the basis of statement recorded on 31.05.2001 and the chargesheet was filed making out a prima facie case only under Section 506(2) of IPC, the prosecutrix did not say anything at that time. There was no protest even when charge was framed by the concerned Magistrate only under Section 506(2) IPC. The objection in this regard was raised for the first time in the year 2008 i.e. almost 7 years after the framing of the charge and application was filed in the year 2010 for including the charge under Section 376 IPC as well on the ground that her complaint to the ACP given on 29.05.2001 be treated as FIR. The prosecutrix may have valid reasons for this delay. However, it is not for us to go into the same at this stage inasmuch as that is again a matter of trial and it would be for the Sessions Court to ultimately adjudge as to whether such delay was suitably explained and/or has any bearing on the merits of the charge. It is reiterated at the cost of repetition that we have to simply decide the question of feasibility of grant of anticipatory bail. In a matter like this where allegations of rape pertain to the period which is almost 17 years ago and when no charge was framed under Section 376 IPC in the year 2001, and even the pro