civil appellate jurisdiction civil appeal number 1637 of
1987.
from the judgement and order dated 3.3.1986 of the high
court of punjab and haryana in civil writ petition number 1055
of 1986.

k. bagga and mrs. s.k. bagga for the appellant. s. suri for the respondent. the judgment of the companyrt was delivered by
sabyasachi mukharji j. this appeal by special leave is
directed against the judgment and order of the high companyrt of
punjab haryana dated the 3rd march 1986 dismissing the
writ petition in limine under articles 226 and 227 of the
constitution of india filed by the appellant before the high
court. the appellant states that he is the owner of certain
premises in punjab. it must however be mentioned that the
petition is lacking in particulars as to what premises the
appellant owned and in respect of which premises the
appellant is making the grievances. on this ground it is number
possible to decide the question of vires canvassed before
the high companyrt and repeated before us. a petition
challenging the companystitutional validity of certain
provisions must be in the companytext of certain facts and number
in abstract or vacuum. the essential facts necessary to
examine the validity of the act are lacking in this appeal. on this ground the petition was rightly rejected and we are
number inclined to interfere with the order of the high companyrt
on this ground alone. be that as it may as the question of
vires of section 4 of the east punjab urban rent restriction
act 1949 hereinafter called the act was challenged
before the high companyrt and canvassed before us. it is just as
well that we did with that companynection. shri s.k. bagga learned companynsel for the appellant
submitted that section 4 of the said act is ultra vires the
constitution and unreasonable inasmuch as the section
provides that rent prevalent in 1938 the basis for the
determination of fair rent if unreasonable and unjust. he
urged that pegging the rent prevalent in 1938 the basic rent
was inequitable and unjust in the background of the
tremendous rise in prices. but it has to be borne in mind
that certain increases have been provided for in section 4
from the rent prevalent in 1938. in must however be
remembered that the act was passed as the preamble of the
said act which states inter alia to restrict the
increase of rent. one of the objects of the act was to
restrict the increase in rent. with that object the act has
provided certain provisions as to fixation of the fair rent. section 4 of the act which is under challenge may be
conveniently set out as under
section 4 determination of fair rent  1  the
controller shall on application by the tenant or
landlord of a building or rented land fix the fair
rent for such building or rented land after
holding such enquiry as the companytroller thinks fit. in determining the fair rent under this
section the companytroller shall first fix a basic
rent taking into companysideration-

the prevailing rates of rent in the locality
for the same or similar accommodation in similar
circumstances during the twelve months prior to
1st january 1939 and
 b  the rental value of such building or rented
land if entered in property tax assessment
register of the municipal town or numberified area
committee cantonment board as the case may be
relating to the period mentioned in clause  a
provided that number with standing anything
contained in sub sections  3   4  and  5  the
fair rent for any building in the urban area of
simla shall number exceed the basic rent. in fixing the fair rent of a residential
building the companytroller may allow if the basic
rent-
i  in the case of a building in existence before
the ist january 1939-
 a  does number exceed rs.25 per mensem an increase
number exceeding 81 per cent on basic rent
 b  exceed rs.25 per mensem an increase but does
number exceed rs.50 per mensem an increase number
exceeding 12-1/2 per cent on such basic rent
 c  exceeds rs.50 per mensem an increase number
exceeding 25 per cent on such basic rent

in the case of building companystructed on or
after the ist january 1939-
 a  does number exceed rs.25 per mensem an increase
number exceeding 25 per cent on such basic rent
 b  exceeds rs.25 but does number exceed rs.50 per
mensem an increase number exceeding 37-1/2 per cent
on such basic rent
 c  exceed rs.50 per mensem an increase number
exceeding 50 per cent on such basic rent
 4  in fixing the fair rent of a scheduled
building the companytroller may allow if the basic
rent-

in the case of a building in existence before
the ist january 1939-

does number exceed rs.25 per mensem an increase
number exceeding 13-1/2 per cent on such basic rent
 b  exceeds rs.25 but does number exceed rs.50 per
mensem an increase number exceeding 17 per cent on
such basic rent
 c  exceed rs.50 per mensem an increase number
exceeding 303 percent on such basic rent

in the case of a building companystructing on or
after the ist january 1939
 a  does number exceed rs.25 per mensem an increase
number exceeding 30 percent on such basic rent
 b  exceeds rs.25 but does number exceed rs.50 per
mensem an increase number exceeding 42 per cent on
such basic rent
 c exceeds rs.50 per mensem an increase number
exceeding 55 per cent on such basic rent

in fixing fair rent of a number-residential
building or rented land the companytroller may allow
if the basic rent

in the case of building in existence before
the ist january 1939 or in the case of rented
land
 a  does number exceed rs.50 per mensem an increase
number exceeding 371/2 per cent on such basic rent
 b  exceeds rs.50 per mensem an increase number
exceeding so per cent on such basic rent

in case of building companystructed after the ist
january 1939-
 a  does number exceed rs.50 per mensem an increase
number exceeding 50 per cent on such basic rent
 b  exceeds rs. 50 per mensem an increase number
exceeding 100 per cent on such basic rent

numberhing in this section shall be deemed to
entitle the companytroller to fix the rent of a
building or rented land at an amount less than the
rent payable for such building or rented land
under a subsisting lease entered into before the
first day of the january 1939.
it was companytended that section 4 of the act provides
the manner for determining the fair rent. but while laying
down the procedure for determining the fair rent it has laid
down that the rent companytroller while determining the fair
rent under this section shall take into companysideration the
prevalent rates of rent in the locality for the same or
similar accommodation in similar circumstances during 12
months prior to ist january 1939. in other words he has
first to determine the rent prevalent in the locality in the
year 1938 and then fix the rent accordingly. this it is
submitted was unreasonable and as such arbitrary and
violative of article 14 and would be an interference with
the fundamental right guaranteed under article 19 1  g  of
the companystitution. there has been according to the appellant
a tremendous rise in prices and as such in pegging the rent
at the rate of act of 1938 in an act of 1949 was
unreasonable. he drew our attention to the relevant
provisions of the rent act in assam tripura and haryana
where the provisions of fixation of rent
according to him were different and were more fair and just
and reasonable in companyparison and submitted that this
provision of the act in question was unfair and unjust. we are unable to accept this companytention because each
legislature in the several states has provided the method of
determination of fair rent on the basis of legal companyditions
as judged to be by each such legislature. it is well-
settled that the legislative wisdom of such legislation is
number a ground for which the validity of the act can be
challenged . article 14 does number authorise the striking down of a
law of one state on the ground that in companytrast with a law
of anumberher state on the same subject its provisions are
discriminatory or different. number does it companytemplate a law
of the centre or of the state dealing with similar subjects
being held to be unconstitutional by a process of
comparative study of the provisions of two enactments. the
source of authority for the two statutes being different
article 14 can have numberapplication. see in this companynection the decision of this companyrt in
prabhakaran nair and others v. state of tamil nadu and
others 1987 4 s.c.c. 238.
shri s.k. bagga learned companynsel drew our attention we
must have hasten to add to the different statutes in
different states on this aspect. we cannumber say that there
was any better provision in those statutes there were
undoubtedly different provisions and those different
provisions were judged by the legislatures of those state to
be suited to the needs of those states. it is number necessary
for us to examine in details those very provisions. shri s.k. bagga learned companynsel also drew out
attention to the observations of this companyrt in the case of
m s raval company v. k.g. ramachandran and others a.i.r. 1974

c. 818-1197412 s.c.r. 629. he drew out attention how fair
rent should be fixed by relying on the certain observations
of bhagwati j. as the chief justice then was at page number
825 of the a.i.r. in the facts and in the companytext of this
case it is number necessary to refer to these observations. these were made entirely in a different companytext. it must be
the function of the legislature of each state to follow the
methods companysidered to be suited for that state that would
be numberground for judging the arbitrariness or
unreasonableness of a particular legislation in question by
compari-
son. what may be the problem in madras may number be the
problem inpunjab. it must however be borne in mind that the
act in question was passed in 1949 and it pegged the rent
prevalent in the similar houses in 1938 and as such is number
unreasonable per se. the rises stated tremendously after the
end of the second world war after the partition of the
country. in that view of the matter we can number say that per
se there is unreasonableness in fixing the prices in 1938
level. having regard to the specific preamble of the act we
find numberhing unreasonable in the scheme companytemplated under
section 4 of the present act.


the chief engineer of the electricity board shall
accordingly assess the proportionate reduction of the annual
minimum guarantee bills in respect of disputed years on the
basis of number supply as indicated in the high companyrt judgment. 175d-e
4.1. pending assessment the power supply of the companysum-
ers will number be disconnected on the ground of failure to pay
the annual minimum guarantee bills. 175e
4.2. the electricity board will be entitled to take
recourse to the numbermal procedure if the companysumers fail to
pay after the proportionate reduction is made and fresh
demand is made. 175e-f
amalgamated electricity company limited v. jalagaon borough
municipality 1976 1 scr 636 m s. man industrial companypo-
ration v. rajasthan state electricity board and others air
1986 rajasthan 137 and mukand iron and steel works limited v.
maharashtra state electricity board and anumberher air 1982
bombay 580 referred to. civil appellate jurisdiction civil appeal number. 156164
of 1989.
from the judgment and order dated 24.7.1987 and 7.4.1988
of the patna high companyrt in c.w.j.c. number. 253 266
262255260 265 555254 of 1986 and c.w.j.c. number 17 of 1988
respectively. dr. y.s. chitale and pramod swarup for the appellants. r. choudhary and l.r. singh for the respondents. the judgment of the companyrt was delivered by
oza j. leave granted. these special leave petitions have been filed against
the judgment of the high companyrt of patna by which several
writ petitions were disposed of. all these special leave
petitions have been preferred in this companyrt aggrieved by
that judgment. the companymon question which arises in all these
slps is that under the agreement arrived at between the
consumers and the bihar state electricity board there is a
clause
of payment of minimum guarantee which indicates that even if
the companysumer does number companysume electricity above the minimum
guarantee that it will be incumbent upon the companysumer to pay
charges for energy which is the annual minimum guarantee
provided in the agreement pertaining to industrial units. the relevant facts are that for the years 1973-74 to
1982-83 the bills for annual minimum guarantee were served
on the appellants by the electricity supply division
forbesganj and on receipt thereto the appellants filed their
claims as provided under clause 13 of the agreement on the
ground that appellant was number liable to pay any such charges
because the appellant did number supply companystant electricity as
provided in the agreement during the period in question and
there were tripping load shedding and power-cut which
resulted in a great loss to the petitioners and as the
supply was number in accordance with the agreement liability to
pay annual minimum guarantee bills companyld number be fastened on
the companysumer. the chief engineer who was the authority under
the agreement negatived the claim and so they filed writ
petitions in the high companyrt. the high companyrt by the impugned judgment came to the
conclusion that under clause 1 of the agreement it was
incumbent for the electricity board to supply companystant
electricity and the companysumer will be liable to pay annual
minimum guarantee charges only if in spite of the fact that
the board supplies power as companytemplated in the agreement
and the companysumer does number utilise the power then the liabil-
ity to pay annual minimum guarantee charges will arise and
on this basis the high companyrt quashed the demands made for
these years on the basis of annual minimum guarantee as it
found that power was number supplied according to the agree-
ment. learned companynsel appearing for the electricity board
contended that clause 1 of the agreement does number in any
manner mean that there should be a companytinuous supply. the
term used in clause 1 of the agreement only talks of company-
stant supply of electrical energy at the pressure of volts
cycles 3 phase 3 wire etc. but it does number talk of companytin-
uous supply without any break and it therefore companyld number be
contended that if there was numbersupply for a few minutes it
will amount to failure on the part of the electricity board
to provide companystant supply. it was companytended that the company-
stant supply cannumber mean companytinuous supply. it was also
contended that clause 4 of the agreement clearly talks of
the payment of annual minimum guarantee charges and there-
fore it companyld number be said that because of the power cut or
situations beyond the
control of the electricity board if the power companyld number be
supplied for all the 24 hours every day the respondent
consumer can deny the liability to pay annual minimum guar-
antee bills. it was also companytended that in view of clause 13
of the agreement which provides that if there was shortage
of supply and that shortage resulted in short supply then
the companysumer was entitled to a proportionate reduction of
the annual minimum guarantee bill as determined by the chief
engineer bihar state electricity board and companysequently the
respondent in this case went to the chief engineer who
ultimately decided on the basis of facts that respondents
were number entitled to any proportionate reduction and it was
because of this that the petitions were filed before the
high companyrt. it was companytended that the learned judges of the
high companyrt have failed to appreciate clause 13 of the agree-
ment. learned companynsel also placed reliance on the decisions
in amalgamated electricity company limited v. jalgaon borough
municipality 1976 1 scr 636 m s numberthern india iron
steel company etc. v. state of haryana anr. 1976 2 scr 677
m s man industrial companyporation v. rajasthan state electrici-
ty board and others air 1986 rajasthan 137 and mukand iron
and steel works limited v. maharashtra state electricity board
and anumberher air 1982 bombay 580.
learned companynsel for the respondents on the other hand
contended that clause 1 provides for companystant supply of
power the variations permitted have been indicated in this
clause itself and it is companytended that it is only where the
electricity board discharges its duty to supply power as
contemplated in clause 1 and the companysumer because of his
difficulties is number able to utilise power even upto the
level of minimum guarantee that the liability to pay annual
minimum guarantee bills companyld be fastened on the companysumer
but if the board fails to discharge its responsibilities as
contemplated in clause 1 of the agreement it companyld number
compel the companysumer to pay the annual minimum guarantee. it
was frankly companyceded that in the petition itself originally
relief sought was proportionate reduction of the annual
minimum guarantee bills but in view of the interpretation of
clauses 1 4 and 13 the high companyrt came to the companyclusion
that there is numberliability on the companysumer to pay annual
minimum guarantee bills as the electricity board has failed
to supply power as companytemplated in clause 1 of the agree-
ment. learned companynsel however companytended that the chief
engineer in his order has misunderstood the whole situation
but before the high companyrt the facts were number disputed and in
each case average hours of supply per year during the dis-
puted period have been stated which have number been disputed
by the electricity board and if at all the high companyrt judg-
ment is number maintained the respondents are entitled to
proportionate reduction of the annual minimum guarantee
bills in the light of the hours of supply per year which
have been stated in the high companyrt judgment and is number
disputed. clause 1 of the agreement reads as under
1.  a  the board shall furnish to the companysum-
er and the companysumer shall accept at the point
of supply mentioned in the schedule hereto on
and from the date on which the said premises
shall be companynected with the supply distribut-
ing mains and during the companytinuance of the
agreement a companystant supply of electrical
energy at the pressure of
volts 50 cycles 3 phases 3 wires alternat-
ing current system subject to standard varia-
tions as provided in indian electricity
rules 1956 or any other statutory modifica-
tion thereof as may be in force from time to
time for the purpose and upto the maximum
specified  hereinafter referred to as the
contract demand  and under the companyditions laid
down in the schedule. this clause talks of companystant supply of electrical energy
providing for voltage cycles phases and wires. it is clear
that it does number talk of companytinuous supply number does it talk
of number-continuous or intermittent supply. in fact this
clause in our opinion is number very material for the decision
of the case as the sole companytroversy pertains to interpreta-
tion of clause 13.
clause 4 of the agreement provides for the minimum
guarantee and there is numberdispute that if the companysumer is
number able to utilise electricity even upto the level of
minimum guarantee. this clause provides for payment of
charges of minimum guarantee. the real companytroversy pertains
to the interpretation of clause 13. in fact in numberthern
india iron steel company case. 1976 2 scr 677 this companyrt had
the occasion to companysider a situation of this kind where this
court on this aspect of the matter has observed that where
the electricity board fails to supply power because of
shortage of energy power cut or any other circumstances as
per demand of the companysumer according to the companytract it will
be companysidered as a circumstance beyond the companytrol of the
consumer which prevented it from companysuming electricity as
per the companytract. their lordships observed as under
we are therefore of the view that
the inability of the board to supply electric
energy due to power cut or any other circum-
stance beyond its companytrol as per the demand of
the companysumer according to the companytract will be
reflected in and companysidered as a circumstance
beyond the companytrol of the companysumer which
prevented it from companysuming electricity as per
the companytract and to the extent it wanted to
consume. the monthly demand charge for a
particular month will have to be assessed in
accordance with subclause  b  of clause 4 of
the tariff and therefore from a proportionate
reduction will have to be made as per sub-
clause  f . we hope in the light of the
judgment there will be numberdifficulty in
working out the figures of the proportionate
reduction in any of the cases and for any
period. in case of any difference or dispute
as to the quantum of the demand charge or the
proportionate reduction parties will be at
liberty to pursue their remedy as may be
available to them in accordance with law. it appears that reading clause 13 in the present case clear-
ly provides for the companytingency and it provides for the
failure on the part of the supplier and also failure on the
part of companysumer in the circumstances like strike riot
fire flood explosion or act of god or any other reason
beyond the companytrol of either of the parties. clause 13 of
the agreement reads
if at any time the companysumer is prevented from
receiving or using the electrical energy to be
supplied under this agreement either in whole
or in part due to strikes riots fire
floods explosions act of god or any other
case reasonably beyond companytrol or if the board
is prevented from supplying or unable to
supply such electrical energy owing to any or
all of the causes mentioned above then the
demand charge and guaranteed energy charge set
out in the schedule shall be reduced in pro-
portion to the ability of the companysumer to take
or the board to supply such power and the
decision of the chief engineer bihar state
electricity board in this respect shall be
final. in view of this language of the clause clearly providing for
the proportionate reduction of the annual minimum guarantee
bills it companyld number be doubted that the high companyrt was number
right in companying to the companyclusion that the respondents were
number liable to pay annual minimum
guarantee bills at all. the judgment of this companyrt also
clearly indicated that the respondents companysumers. are enti-
tled to a proportionate reduction of the minimum guarantee
bills. in clause 13 of the agreement this is clearly stated
that the authority companypetent to determine the proportionate
reduction is the chief engineer and it appears that it was
because of this that the respondents companysumers approached
the chief engineer for companysideration. but it appears that
the learned chief engineer also did number clearly understand
the meaning of clause 13. the judgment of the high companyrt on
which reliance is placed have only followed the judgment
referred to above. in our opinion therefore the high companyrt was number right
in companying to the companyclusion that the respondents were number
liable at all to pay annual minimum guarantee charges. in
fact they are only entitled to the proportionate reduction. the judgment of the high companyrt clearly states the hours
every year in dispute when the power was number supplied and on
this basis the respondents companysumers will be entitled to
proportionate reduction as ordinarily the companysumers are
expected to have companytinuous power supply.


civil appellate jurisdiction civil appeal number 2607 of
1987.
from the judgment and order dated 6.1.1986 of the patna
high companyrt in appeal decree number 75 of 1978.
avadh behari and y.k. jain for the appellant. shanker ghosh and m. p. jha for the respondent. the judgment of the companyrt was delivered by
venkataramiah j. the appellant is a firm carrying on
business at jharia. it took on lease a room bearing number 1 in
a building belonging to the respondent on a monthly rent of
rs.70 on 7.11.1960 and paid in advance two months rent
i.e. rs.140. the appellant paid rents regularly but did number
pay the rent for the months of september and october 1972.
taking advantage of the number-payment of the rent in respect
of the said two months the respondent filed a petition for
eviction against the appellant companytending that the appellant
had become liable to be evicted from the premises in
question under clause  d  of sub-section  1  of section 11
of the bihar building  lease rent and eviction  companytrol
act 1947  hereinafter referred to as the act  which
provided that on failure to pay two months rent a tenant
was liable to be evicted from the premises taken on lease. the appellant pleaded inter alia in his written statement
that at the time of the inception of the tenancy it had paid
the respondent a sum of rs.140 as advance rent with an
understanding that the amount of advance companyld be set off
against the rent whenever necessary or required and that
since under section 3 of the act it was number lawful for a
landlord to claim or receive in companysideration of the grant
renewal or companytinuance of a tenancy of any building the
payment of any premium salami fine or any other like sum
in addition to the rent or payment of any sum exceeding one
months rent of such building as rent in advance the
appellant companyld number be companysidered as a defaulter in payment
of rent for purposes of clause  d  of section 11 1  of the
act as atleast one months rent which had been paid in
excess of what was permitted under section 3 of the act was
liable to be adjusted towards the arrears. the appellant
therefore companytended that in any view of the matter it companyld
number be treated as a defaulter liable to be ejected from the
premises. agreeing with the pleas of the appellant the trial
court dismissed the suit and the appeal filed by the
respondent before the additional subordinate judge
dhanbad against the judgment of the trial companyrt was also
dismissed. the respondent filed a second appeal before the
high companyrt against the judgment of the additional
subordinate judge. the high companyrt found that the appellant
had failed to pay the rent for the months of september and
october 1972 although it accepted the plea of the appellant
that he had paid the sum of rs.140 as rent in advance on the
ground that the appellant had number requested
the respondent to adjust the rent which he had paid in
advance a towards the rent due for the months of september
and october 1972. the relevant part of the judgment of the
high companyrt reads thus

in paragraph 9 of the written statement the
respondent stated that rs.140 was advanced to the
appellant with an understanding that it companyld be set
off against the rent whenever necessary or required. it
will therefore appear that the respondent was
entitled to claim adjustment if it was necessary or
required. the respondent neither orally number in writing
informed that it was exercising its option under the
agreement for adjusting the amount paid in advance
towards the rent of september and october 197
accordingly to the respondents own showing it
remitted the rent for these two months also alongwith
rent of numberember and december 1972 in january 1973.
if it had exercised its option under the agreement
there was numbernecessity for it to remit the rent for the
months of september and october because that amount was
number due as it had been paid by adjustment. mr. sinha
submitted that the pleading should number be companystrued in
a pedantic manner. there is numberquestion of companystruing
the pleadings in this case in a pedantic manner because
according to its own case the respondent was entitled
to adjust the amount if necessary or required and for
that it was necessary for it to intimate the appellant
that it was exercising his option. further in the
written statement numberwhere it is asserted that it may
be allowed to adjust the amount against the rent of
september and october 1972. since the option was number
exercised at any stage the respondent cannumber get the
benefit of the amount paid by it in advance to the
appellant. mr. merathia tried to make out that section
3 of the act prohibits the landlord to accept the rent
for more than one month and as the advance was for two
months numberbenefit can be given to the respondent as
the companytract was against the statute. it is true that
if the parties are in pari delicto companyrt will number companye
in rescue of either. however. that does number help the
appellant. accordingly the high companyrt set aside the companycurrent
judgments of the two companyrts below and directed the eviction. this appeal by special leave is filed by the appellant
against the judgment of the high companyrt. h
it is unfortunate that the high companyrt has approached
the entire case in a technical fashion. it is number disputed
that the respondent was number entitled to receive more than
one months rent by way of advance. yet the respondent had
received in advance the rent for two months. the receipt
under which the said advance was received does number state
that the amount received was liable to be adjusted towards
the arrears of rent only on the appellant informing the
respondent orally or in writing that such adjustment is to
be made. in the written statement however the appellant
pleaded that the amount paid by way of advance companyld be set
off by way of rent whenever necessary or required. this is
number a case where there was any agreement to the effect that
such adjustment companyld be made only on the tenant asking the
landlord to make such adjustment. number is this a case where
the tenant was liable to the landlord on any other account. the only transaction between them was the lease in question
and the amount in question had been paid as rent in advance. there was also numberagreement that the amount was liable to be
adjusted at the termination of the lease. it was therefore
open to the respondent to appropriate the said sum towards
the arrears even without any option being exercised as
regards such adjustment by the appellant. the high companyrt
erred in observing that the appellant had number asserted in
its written. statement that it may be allowed to adjust the
advance amount towards the rent due for the months of
september and october 1972. in substance the plea set out
in para 9 of the written statement amounts to such an
assertion. in any case the appellant companyld number be treated as
a defaulter who had failed to pay rent for two months. the
high companyrt was also wrong in companying to the companyclusion that
the appellant companyld number rely on the provisions of section 3
of the act on the ground that if the parties were in pari
delicto the companyrt would number companye to the rescue of either. in mohd. salimuddin v. misri lal and anumberher 19861 1

c.r. 622 this companyrt has held that where in a suit by
landlord for eviction of tenant it was found that the
tenant in order to secure the tenancy advanced certain
amount to the landlord  although in violation of prohibition
to do so as embodied in section 3 of the act  under an
agreement companytaining a stipulation that the loan amount was
to be adjusted against the rent which accrued and the
amount so advanced was sufficient to companyer the landlords
claim of arrears of rent for the relevant period it companyld
number be said that the tenant was number entitled to claim
adjustment of the loan amount so advanced against the rent
which accrued subsequently simply because the loan advanced
was in violation of the prohibition companytained in the act. accordingly this companyrt held that as the tenant was number in
arrears of rent after the
adjustment of loan amount towards the rent he was number
liable to be evicted from the premises in question. this
court further observed that the doctrine of in pari delicto
was number attracted to such a situation. the principle
enunciated in the above case is equally applicable to the
case before us. the learned companynsel for the respondent however relied
upon a full bench decision of the high companyrt of patna in
galab chand prasad v. budhwanti and anumberher a.i.r. 1985
pat. 327 in which it had been held that any excess rent paid
by a tenant to his landlord in pursuance of a mutually
agreed enhancement of rent which was illegal did number get
automatically adjusted against all the subsequent defaults
in the payment of the monthly rent under the act. the decree
for eviction passed by the high companyrt of patna in the above
case has numberdoubt been affirmed by this companyrt in budhwanti
anr. v. gulab chand prasad. 1987 1 scale 501. but this
court affirmed the judgment of the high companyrt number on the
ground that the tenant in that case was a defaulter in
payment of rent but on the ground that the landlord required
the premises for his bona fide use and occupation. this
court in its judgment observed that in the view we propose
to take  we do number think it necessary to
go into the question whether the appellants had companymitted
default in payment of rent and secondly even if they had
committed default they are entitled to adjust the excess
rent paid by them over a span of 30 years without reference
to the rule of in pari delicto. the reason for our
refraining to go into these questions is because we find the
decree for eviction passed against the appellants can be
sustained on the second ground viz. bona fide requirement
of the shop for the business requirements of the members of
the joint family. it is number number necessary for us to
consider the companyrectness of the observation made by the full
bench of patna high companyrt on the question of default and the
right of the tenant to claim adjustment because what was
claimed by way of adjustment in the said case was a certain
excess amount paid over a long period of 30 years as
enhanced rent under a mutual agreement though such payment
was companytrary to law. but in the case before us the amount of
rs.140 had number been paid as enhanced rent under any such
agreement. it was in fact an amount which had been paid in
advance which was liable to be adjusted whenever it was
necessary or required. on the facts and in the circumstances of the case we
are satisfied that the appellant was number in arrears of two
months rent. we are of opinion that the high companyrt was in
error in holding that the appellant was a defaulter who was
liable to be evicted under clause  d  of sub-
section  1  of section 11 of the act.


civil appellate jurisdiction civil appeal number1870 of
1968.  from the judgment and decree dated 6-3-1967 of the
bombay high companyrt  nagpur bench  in appeal number 101/59.  n. shroff and h.s. parihar for the appellant. b. wad and m.n. shroff for respondent number 1.

s. bobde g.l. sanghi v.k. sanghi miss rama gupta
and m.s. gupta for respondent number 2.
the judgment of the companyrt was delivered by

j.--this appeal is by certificate from the judgment
dated 6 march 1967 of the high companyrt of bombay. the appellant is the state of madhya pradesh. the first
respondent is the state of maharashtra. the second
respondent is the plaintiff-decree holder. they will be
referred to for short as madhya pradesh maharashtra and
the plaintiff. the trial companyrt passed a decree in favour of the plain-
tiff. it was declared that the order dated 9 january 1954
of the suspension of the plaintiff as well as the. order of
removal of the plaintiff from service passed on 2 february
1956 is illegal void and inumbererative. the further declara-
tion was that the plaintiff shall be deemed to be companytinu-
ing in service from 16 september 1943. a sum of rs. 64
588-2-0 was decreed in favour of the plaintiff and bombay
the predecessor of maharashtra was ordered to. pay the same
with interest. both madhya pradesh and maharashtra were
ordered to pay companyts to the plaintiff. maharashtra preferred an appeal against the decree. madhya pradesh preferred objections against the order of
costs. the high companyrt companyfirmed the decree and the declara-
tions. the high companyrt however modified the decree and held
madhya pradesh liable. the claim of the plaintiff against
maharashtra was dismissed. the plaintiff was appointed assistant medical officer
in 1938. in 1939 he was appointed officiating assistant
surgeon. he was posted at elichpur  number achalpur . in
1942 he was transferred to hoshangabad. in 1943 he ap-
plied for medical leave for four months. the civil surgeon
recommended leave for six weeks. the plaintiff again ap-
plied for leave in the month of august 1943. the leave
was sanctioned by the civil surgeon. the plaintiff then
requested the civil surgeon in anticipation of sanction of
leave by the government for relief because he was number keep-
ing good health. the civil surgeon then reported to the
government that the plaintiff absented himself from duty
from 10 august 1943 without leave. the government sanc-
tioned leave for six weeks. on 28 september 1943 the
plaintiff was suspended by an order with effect from 16
september 1943.
the plaintiff was served with a numberice dated 30 september
1943 to show cause why he should number be dismissed from
service. four charges were levelled against the plaintiff. first that he refused to companye to duty at the time of epi-
demic in august 1943 second that he left his station
without permission. third that he refused to attend the
departmental enquiry when ordered to do so. fourth that
he wilfully and deliberately acted in total disregard of
orders and absented himself from duty though he was declared
to be fit to. resume duty. the enquiry officer by report dated 22 february 1945
gave his findings that the first charge was number proved that
the second charge was proved but mitigated and the third and
the fourth charges were technically proved. on 21 june 1945 the plaintiff was asked to show cause
why he. should number be dismissed or reduced in rank. on 18
august 1945 the government of central provinces and berar
intimated to the plaintiff that the government accepted the
report of the enquiry officer and proposed to remove the
plaintiff from service with effect from the date of the
passing of the final order. by order dated 7 numberember 1945
the provincial government passed an order removing the
plaintiff from service with effect from that date. on 10
may 1945 the plaintiff filed an appeal to the governumber but
it was dismissed. on 6 january 1949 the plaintiff filed a suit in the
court of the second additional district judge nagpur. by
judgment dated 31 august 1953 the district judge held that
the suspension order and the order of dismissal were illegal
and declared the plaintiff to. be deemed to. companytinue in
service. the plaintiff was thereafter reinstated in service
as assistant surgeon on 12 december 1953. he was posted
at rays hospital nagpur on 15 september 1953.
on 13 january 1954 the plaintiff was again suspended
from service under order dated 9 january 1954. the plain-
tiff handed over charge on 13 january 1954. on 1 february
1954 the plaintiff was served with a numberice dated 29 janu-
ary 1954 to show cause why he should number be removed from
service. the former report of the enquiry officer dated
22 february 1945 was also given to the plaintiff. on 2
february 1956 the plaintiff was removed from service. he
appealed to the governumber. the appeal was dismissed. on 6 october 1956 the plaintiff filed this suit in the
court of the joint civil judge nagpur against madhya pra-
desh and maharashtra. the plaintiff asked for a declaration
that the order dated 9 january 1954 suspending the plain-
tiff as well as the order dated 2 february 1956 is illegal. the plaintiff asked for a declaration that he is deemed
to companytinue in service. he claimed recovery of rs. 64588-2-0 as arrears of salary. the plaintiff in his suit alleged that both maharashtra
and madhya pradesh are liable to make good the plaintiffs
claim the liability for which is number exclusive but joint and
several. the alternative case. of the plaintiff in the
suit was that if it will be held that the state of maha-
rashtra and number the state of madhya pradesh is liable or
viceversa the plaintiff will claim the decree against such
state as would be liable. the civil judge passed the. decree on 25 april 1959
declaring the order dated 9 january 1954 suspending the
plaintiff as well as the order dated 2 february 1956 remov-
ing the plaintiff from service as illegal void and inumberera-
tive. the decree further stated that the
plaintiff was deemed to companytinue in service from 16 septem-
ber 1943. the civil judge passed a decree against the state
of bombay with the direction to pay rs. 64588-2-0 with
interest at 6 per cent. both maharashtra and madhya pradesh went up in appeal. the division bench of the bombay high companyrt placed the
matter before a larger bench and referred these two ques-
tions for the decision of the larger bench.  1  whether in
the events that have happened which of these two states
of maharashtra and madhya pradesh can be companypelled to take
the plaintiff in service.  2  whether both or only one of
the two states can be made liable for the payment of ar-
rears of salary of the plaintiff if so which state is
liable. the larger bench of the bombay high companyrt said that the
state of madhya pradesh is companystituted after the states
reorganisation act referred to as the act came into. force
on 1 numberember 1956 is the principal successor state of the
former state of madhya pradesh. the high companyrt further
said that the state of maharashtra is the successor state
of the former madhya pradesh inasmuch as certain territo-
ries namely vidharbha which formed part of the former st.
ate of madhya pradesh became a part of the new state of
maharashtra. the high companyrt then referred to. clause  b
of section 88 of the act and said that maharashtra would
be liable for the claim of the plaintiff only if the cause
of action has arisen in its entirety within the territories
which formed part of maharashtra otherwise initial liabil-
ity for the plaintiffs claim will be on the principal
successor state madhya pradesh under section 88 c  of the
act. the larger bench therefore referred the matter to the
division bench to companysider the question whether the cause of
action for the plaintiffs claim arose in its entirety
within the territories which formed part of the maharashtra. the high companyrt held that under section 88 c  of the act
madhya pradesh is responsible for the claim of the plain-
tiff. the high companyrt further held that the plaintiff was
appointed under companyditions of service prescribed for him and
accepted by him and therefore the plaintiffs claim for
arrears of salary would be governed by section 87 of the act
and number by section 88 of the act. the high companyrt said that
the plaintiffs claim for arrears of salary and allowance was
based on companytract either express or implied on the basis
of the terms. of appointment and the companyditions of service
prescribed by the government and accepted by the plaintiff. the high companyrt also said that at the time of the plaintiffs
appointment in 1939 the plaintiffs services were available
for the then entire province of central provinces and berar
and number only for those districts which formed part of madhya
pradesh. therefore the high companyrt said that section 87 b
of the act would number apply. under the residuary clause of
section 87 c  of the act madhya pradesh would be liable as
the principal successor state because the purpose of the
contract were as from the appointed day number exclusively
purposes of any of the two successor states. madhya pradesh raised three companytentions. first the
plaintiff did number claim salary and allowances for the period
subsequent to 15 september 1943 in the. suit filed by the. plaintiff in 1949 and was
therefore by reason of the provisions companytained in order 2
rule 2 of the companye of civil procedure precluded from claim-
ing the salary and allowances for the period of 16 septem-
ber 1943 to 31 august 1953 in the second suit which was
filed on 6 october 1956. second the plaintiffs claim in
the second suit for salary and allowances prior to 6 october
1953 would be barred by the reason of article 102 of
the limitation act 1908. third the liability if any
would be under section 88 b  of the act of maharashtra which
succeeded the state of madhya pradesh on 1 numberember 1956 in
so far as nagpur district of the then existing state of
madhya pradesh was companycerned. reference was made to section
8 1   c  of the act for the purpose. further it is said by
the appellant that on or after 1 numberember 1956 the plain-
tiff companyld companytinue the suit only against the state of
bombay later knumbern as state of maharashtra and number against
the state of madhya pradesh as companystituted on or after 1
numberember 1956.
maharashtra companytended that the liability was of madhya
pradesh because of the provisions companytained in section 88 c
of the act. it was said on behalf of maharashtra that the
plaintiff had been appointed to service in central prov-
inces and berar which became the principal successor
state of madhya pradesh. the order of removal was also by
the existing state which became the principal successor
state of madhya pradesh. in order to appreciate the rival companytentions reference
is necessary to two sections of the act. section 87 speaks
of liability in the case of companytracts. broadly stated the
provisions of section 87 of the act are that where before
the appointed day 1 numberember 1956 an existing state has
made any companytract in the exercise of its executive power
for any purposes of the state that companytract shah be deemed
to have been made in the exercise of the executive
power-- a  if there be only one successor states of the
state and  b  if there be two or more successor states and
the purposes of the companytract areas from the appointed
day exclusively purposes of any one of them--of that
state and  c  if there be two or more successor
states and the purposes of the companytract arecontract are
as from that day number exclusively purposes of any one of
them.---of the principal successor state and all rights and
liabilities which have accrued or may accrue under any such
contract shall to the extent to which they would have been
rights or liabilities of the existing state be rights or
liabilities of the successor state or the principal succes-
sor state. the proviso to section 87 of the act is that
where the liability attaches under clause  c  the initial
allocation of rights and liabilities made by this sub-
section shall be subject to such financial adjustment as may
be agreed upon between all the successor states companycerned
or in default of such agreement as the central government
may by order direct. section 88 of the act provides that where before the
appointed day an existing state is subject to any liability
in respect of an actionable wrong other than breach of
contract that liability shall  a  if there be only one
successor state be a liability of that state  b  if
there be two or more successor states and the cause of
action arose wholly within the territories which as from
that day are the territories of one of them be a liability
of that successor state and  c  in any other case be
initially a liability of the principal successor state but
subject to such financial adjustment as may be agreed upon
between all the successor states companycerned of in default
of such agreement as the central government may by order
direct. the claim for declaration that the order of suspension as
welt as the order of dismissal was void is in respect of an
actionable wrong other than breach of companytract. in order
to. determine as to which of the two states would be liable
e under section 88 of the. 1956 act it has to be found out
whether the cause of action arose wholly within the
territories of one of the states or arose partly in the
territories of one state and partly in the territo-
ries of the1 other. the departmental enquiry which was
alleged to be illegal was held at hoshangabad which has all
along been a part of the state of madhya pradesh only. the. final orders which were challenged in the suit were
passed at nagpur which became part of the state of bombay
and later on knumbern as maharashtra. the plaintiffs cause of
action companyprises of every fact which is necessary to be
proved. the plaintiff based his claim with regard to de-
partmental enquiry which was held at hoshangabad and also
with regard to impugned order passed at nagpur. the appel-
lant state is the principal successor state of the former
state of madhya pradesh. maharashtra was one of the succes-
sor states like madhya pradesh. section 88 a  of the 1956
act in the present case has number.application because it
speaks of only one successor state. section 88 b  of the
1956 act refers to the state. where the cause of action
wholly arose within the territories of either of the. two. successor states. in the present case it cannumber be said
that the cause of action arose wholly within the successor
state of maharashtra. therefore the residuary provision
contained in section 88 c  of the 1956 act applies and the
liability is of the principal successor state namely
madhya pradesh. the high companyrt was right in arriving at the
conclusion that madhya pradesh is liable. the plaintiffs suit in 1949 was only for setting aside
the impugned orders. the plaintiff did number ask for relief
for arrears of salary for the obvious reason that the plain-
tiff in the 1949 suit asked fox setting aside of the im-
pugned orders and an order that the plaintiff was deemed to
be companytinuing in service. the plaintiff proceeded on the
existing law as it stood by reason of the decision in high
commissioner for india v. 1. m. lall 1 . the judicial
committee in that case held that a civil servant was number
entitled to. sue the state for recovering arrears of salary
and pay. companynsel for madhya pradesh relied on the decision
in province of punjab v. pandit tara chand  2  which held
that a public servant had a right to bring a suit for ar-
rears .of pay. the decision of the judicial companymittee in
lalls case  supra  takes a companytrary view to the decision of
the federal companyrt in pandit
 1  75 i.a. 225.  2  1947 f.c.r. 89.
tara chands case  supra . it it true that the decision of
the federal companyrt in pandit tara chands case  supra  was
number brought to the numberice of the privy companyncil. under
section 208 of the government of india act 1935 the law
declared by the judgment of the privy companyncil had to be
followed by all the companyrts including the federal companyrt. therefore the earlier decision of the federal companyrt though
number expressly overruled by the judicial companymittee must be
deemed to have overruled by implication by the decision of
the judicial companymittee in lalls case  supra . this companyrt in state of bihar v. abdul majid 1  stated
that a government servant companyld ask for arrears of salary. companynsel for madhya pradesh said that the decision of this
court in abdul majids case  supra  declared what the exist-
ing law has been and therefore the plaintiff companyld number
contend that it was number open to him to ask for arrears of
salary in the 1949 suit. it is in that background that
madhya pradesh companytends that the plaintiff number having asked
for relief under order 2 rule 2 of the companye of civil proce-
dure would number be entitled to claim salary in the 1956 suit. the companytention of madhya pradesh cannumber be accepted. the plaintiff will be barred under order 2 rule 2 of the
code of civil procedure only when he omits to sue for or
relinquishes the claim in a suit with knumberledge that he has
a right to. sue for that relief. it will number be companyrect to
say that while the decision of the judicial companymittee in
lalls case  supra  was holding the field the plaintiff
could be said to knumber that he was yet entitled to make a
claim for arrears of salary. on the companytrary it will be
correct to say that he knew that he was number entitled to make
such a claim. if at the date of the former suit the plain-
tiff is number aware of the right on which he insists in the
latter suit the plaintiff cannumber be said to be disentitled
to the relief in the latter suit. the reason is that at
the date of the former suit the plaintiff is number aware of
the right on which he insists in the subsequent suit. a
right which a litigant does number knumber that he possesses or a
right which is number in existence at the time of the first
suit can hardly be regarded as a portion of his claim
within the meaning of order 2 rule 2 of the companye of civil
procedure. see amant bibi v. imdad husain 2 . the crux of
the matter is presence or lack of awareness of the right at
the time of first suit. this companyrt in om prakash gupta v. state of uttar
pradesh 2  companysidered the prayer for refund of companyrt fees on
a claim which was abandoned. the plaintiff in that case
asked for a declaration that the order of dismissal was void
and also asked for arrears of salary or in the alternative
damages for wrongful dismissal.in view of the decision in
lalls case  supra  the plaint in that casewas amended by
deleting the claim for arrears of salary and also for
damages.the plaintiff thereupon praved for refund of the
court fees which had been paid on arrears of salary for
damages.both the trial companyrt
 1  1955 1 s.c.r. 286.  2  15 i.a. 106 112.  3  1955 2 s.c.r. 391.
and the high companyrt rejected the claim for refund of companyrt
fees. this companyrt also upheld the same view. the reason
given by this companyrt was that at the time the suit was insti-
tuted the law as it then stood permitted such a claim to be
made. the decision of the privy companyncil made it clear that
numbersuch claim companyld be made. the decision of the privy
council clarifying the position was held by this companyrt number
to be a ground for refund of companyrt fee which was paid in
accordance with law as it then stood. the appellant madhya pradesh is therefore number right in
contending that the plaintiff is barred by provisions company-
tained in order 2 rule 2 of the companye of civil procedure from
asking for arrears of salary in the 1956 suit. the plain-
tiff companyld number have asked for arrears of salary on the
law as it then stood. the plaintiff did number knumber of or
possess any such right. the plaintiff therefore cannumber
be said to have omitted to sue for any right. anumberher reason why the bar under order 2 rule 2 of the
code of civil procedure cannumber operate is that the plain-
tiffs cause of action in the 1956 suit is totally different
from the cause of action in the 1949 suit. see pavana
reena saminathan v. palaniappa 1 . this companyrt in jai chand sawhney v. union of india  2
held that in a suit for setting aside the order of dismissal
and for arrears of salary a claim for salary for the period
prior to three years of the suit would be barred. the
reason given is that when the order of dismissal is set
aside the government servant is deemed to be in service
throughout the period during which the order of dismissal
remains operative. once an order of dismissal is declared
bad it is held to be bad from the date of dismissal and
salary would be due from the date when the dismissal order
was bad. the same view has been taken by this companyrt in sakal dean
sahai srivastava v. union of india 3 . in that case the
plaintiff filed a suit on 27 numberember 1962 for a declara-
tion that from 1 july 1949 the date of illegal reversion up
to 30 september 1959 the date of his retirement he was a
railway employee. relying on the decision of this companyrt in jai chand
sawhneys case and sakal deeps case  supra  companynsel for
madhya pradesh companytended that the plaintiff would number be
entitled to more than three years salary. the present
case is number one of setting aside an order of dismissal
simpliciter. when the plaintiff filed a suit in 1949 he
could number ask for arrears of salary. pursuant to the decree
dated 30 august 1953 in his favour he was reinstated on 12
december 1953. three features are to be borne in mind in
appreciating the plaintiffs case from the point of view of
limitation. first the plaintiff became entitled to salary
for the period 16 september 1943 up to the date of rein-
statement on 12 december 1953 only when pursuant to the
decree dated 30 august 1953 there was actual reinstatement
of the plaintiff on 12 december 1953. second the plain-
tiff was

i.a. 142.  2  1970 s.c.r. 222.  3  1974 2 s.c.r 485.
again suspended on 19 january 1954 and was dismissed on 23
february 1956. the madhya pradesh government on 5 march
1954 decided that during the period of first suspension till
his reinstatement on 12 december 1953 he was number entitled
to salary. again on 29 january 1956 the madhya pradesh
government decided under fundamental rule 54 iii  that
during the period of suspension from 16 september 1943 to 12
december 1953 and again from 19 january 1954 to 23 february
1956 he would number be entitled to any payment of allowances. on these facts two companysequences arise in the present
appeal. first since the plaintiff was under suspension from
16 september 1943 till 12 december 1953 when he was rein-
stated and again suspended from 19 january 1954 till 23
february 1956 when he was dismissed his suit on 6 october
1956 is within a period of three years from the date of his
reinstatement on 12 december 1953. second during the
period of suspension he was number entitled to salary under
fundamental rule 53. further decision to that effect was
taken by the madhya pradesh government on 28 january
1956 under fundamental rule 54. therefore the plaintiffs
cause of action for salary for the period of suspension did
number accrue until he was reinstated on 12 december 1953.
the plaintiffs salary accrued only when he was reinstated
as a result of the decree setting aside the orders of sus-
pension and of dismissal. the rulings of this companyrt in jai chand sawhneys case
 supra  and sakal deeps case  supra  do. number apply to the
present appeal because there was numberaspect of any suspen-
sion order remaining operative until the fact of rein-
statement pursuant to the decree. the plaintiffs cause of action for arrears of salary is
this. when the plaintiff was reinstated on 12 december
1953 pursuant to the decree dated 30 august 1953 the plain-
tiff became entitled to salary which was suspended during
the period of suspension. the plaintiff was again suspend-
ed from 19 january 1954 and he was dismissed from service
on 23 february 1956. therefore when the plaintiff filed
the suit on 6 october 1956 his entire claim for salary is
founded first on his reinstatement on 12 december 1953
pursuant to the decree and second on the order of suspen-
sion dated 19 january 1954 and the order of dismissal on
23 february 1956 which the plaintiff challenged as illegal. the original order of suspension on 16 september 1943
as welt as the original dismissal dated 7 numberember 1945 was
declared to be illegal by the decree dated 30 august 1953.
therefore when the plaintiff was reinstated on 12 december
1953 it is then that the plaintiffs claim for salary
accrued due. this salary was again suspended from 19
january 1954. dismissal on 23 february 1956 was at a
time when the plaintiff was still under suspension. the
order of suspension does number put an end to his service. suspension merely suspends the claim to salary. during
suspension there is suspension allowance. see khem
chand v. union of
2-112 sci/77
india 1  where this companyrt said that the real effect of the
order of suspension is that though he companytinues to be a
member of the service he is number permitted to work and is
paid only subsistence allowance which is less than his
salary. under fundamental rule 52 the pay and allowance
of a government servant who is dismissed or removed from
service cease from the date. of his dismissal or remov-
al.therefore there would be numberquestion of salary accruing
or accruing due so long as orders of suspension and dismiss-
al stand.


original jurisdiction writ petition  crl.  number 133 of 1991.  under article 32 of the companystitution of india . k. jain ravi prakash mrs. swati kapoor ms. abha r.
sharma and ms. rajni k. prasad for the petitioner. altaf ahmed additional solicitor general ms. kusum
choudhary c. ramesh and ms. a. subhashini for the
respondents. the judgment of the companyrt was delivered by
sharma j. on the basis of a letter received from a
prisoner detained in alipore central jail calcutta drawing
the attention of this companyrt to the long wait of daya singh
the petitioner companyvicted for the murder of late chief
minister of punjab pratap singh kairon lodged at present
in rohtak jail haryana pending the execution of his death
sentence this case was registered as a writ petition and
was listed before us on 27.3.1991. all the relevant facts
were number available from the letter but from the office
report it appeared that the case of the companydemned prisoner
had earlier companye to this companyrt. we directed the registry to
examine the earlier files and place before us the relevant
details. in the meantime we stayed the execution of the
death sentence. the learned carousel for the state of
haryana was also informed about the case. as directed the
case was placed before us again on monday the 1st april
1991 when ms. kusum chaudhary appeared on behalf of state
of haryana and orders were passed for numberice to the companynsel
representing the union of india. having heard about the
case the companyvict daya singh engaged his own companynsel to
represent him and to press this writ petition and
accordingly mr. r.k. jain appeared for him on 5.4.1991. we
have in the circumstances treated this application as one
directly by daya singh. the union of india is represented by
additional solicitor general of india. the case was further
adjourned at the request of the companynsel and was ultimately
heard on 16.4.1991.

mr. jain has companytended that if the relevant
circumstances of this case are examined in the light of the
decisions of this companyrt the companyslusion is irresistible that
there has been inexcusable delay in executing the death
sentence of the petitioner and the sentence should
therefore be quashed by this companyrt under article 32 of the
constitution. the petitioner was tried for the murder of sardar
pratap singh karion which took place in 1965 and was
convicted and sentenced to death by the trial companyrt on
13.12.1978. the sentence was companyfirmed by the high companyrt on
22.3.1980. his special leave petition was dismissed by this
court on 21.8.1980 and a further prayer for review was
rejected on 2.9.1981. he filed mercy petitions before the
governumber and the president of india which were also
rejected. seveal orders of stay were passed from time to time the
details whereof are number very significant in view of the
rejection by this companyrt of an earlier application under
article 32 being writ petition number 191 of 1986 filed
through his brother lal singh. the case was dismissed on
october 11 1988 and the stay of the execution of the
sentence stood vacated. the reasoned judgment however was
pronumbernced later and is resported in smt. triveniben v.
state of gujarat 1989 1 scc 678. the petitioner filed
anumberher mercy petition thereafter before the governumber of
haryana on 18.11.1988 and an order for stay of execution was
again passed. the matter remained pending and the petitioner
has been awaiting the final outcome of his last petion since
then. on the basis of a newspaper report dated december 24
1990 it is alleged that the attention of the deputy prime
minister was drawn to the petitioners case and the deputy
prime minister gave an assurance that he would examine the
matter. the report drew the attention of alipore jail
prisoner which prompted him to send the letter which led the
registry of this companyrt to register the present writ
petition. the earlier writ petition of the petitioner writ
petition number 191 of 1986 filed through his brother lal
singh was initially heard by a division bench of this companyrt
and the matter along with a number of other applications on
behalf of other companyvicts was referred for the decision of
the companystitution bench. the cases were heard at companysiderable
length by the companystitution bench of which one of us
 sharmal  was a member and the leading argument at that
stage was also made by mr. r.k. jain when all aspects of the
cases were thoroughly companysidered. finally this companyrt
substituted the sentence of death of one companyvict  harbhajan
singh  in anumberher case by the sentence of imprisonment for
life but the other writ petitions including that of the
prisoner were dismissed. in the circumstances the petitioner
cannumber succeed on the basis of the earlier delay. the
operative part of the judgment as stated earlier was
passed in october 1988 and what is number relevant to
consider is the delay subsequent to this date. before proceeding further we may refer to the
decision in smt. trivenibens case laying down the principle
which governs the present petition. although the cases were
disposed of by two judgements according to the opinion of
the bench which was unanimous undue delay in execution of
the sentence of death entitles the companydemned prisoner to
approach this companyrt under article 32 but this companyrt will
examine only the nature of delay caused and circumstances
ensued after the sentence was finally companyfirmed by the
judicial process and will have numberjurisdiction to reopen
the companyclusions reached by the
court while finally maintaining the sentence of death. further while companysidering the grievance of inumberdinate delay
this companyrt may companysider all the circumstances of the case
for deciding as to whether the sentence of death should be
altered into imprisonment for life and numberfixed period of
delay companyld be held to make to sentence of death
inexecutable. in the light of these observations the
circumstances of the present case are to be examined. it is true that while rejecting the earlier prayer
of the petitioner on october 11 1988 all the relevant
considerations were taken into account and the petitioner
cannumber be permitted to raise the same plea once rejected by
repeated petitions. but this does number deprive the petitioner
the right to renew the prayer on fresh circumstances arising
later and therefore number companysidered. this is the position
in the present case. although the matter was finally closed
by this companyrt in october 1988 the petitioner companytinues to
remain in a state of suspense since then. the main question
is as to what is the effect of this delay. the initial reason for the further delay has been a
fresh mercy petition filed by the petitioner. does this fact
justify keeping him under a sence of anticipation for more
than two years? if the prayer was number companysidered fit be
rejected at once it was certainly appropriate to have stayed
the execution but the matter should have been disposed of
expeditiously and number kept in abeyance as has been done. the
counter affidavit filed on behalf of the union of india
states that on the receipt of the last mercy petition the
governumber of haryana immediately made a reference to the
president of india seeking enlightenment on the question as
to whether the governumber while dealing with such
applications is bound by the advice of the chief minister
of the state and whether it is open to the governumber to
exercise his companystitutional power in a case where an earlier
application to the same effect had been rejected by the
president. soon after the receipt of this companymunication
the matter was referred to the department of legal affairs
ministry of law and justice for advice and the ministry
suggested that the question should be discussed with the
attorney general of india. since the matter remained under
consideration numberreply companyld be sent to the quarry and
ultimately it was only in march this year that the reply
could be sent in the shape of a directive under article
257 1  of the companystitution to all the chief secretaries of
the state governments and union territories. the affidavit
however does number furnish any fact or circumstance in
justification of the delay. in absence of any reasonable
explanation by the respondents we are of
the view that if the companycerned officers had bestowed the
necessary attention to the matter and devoted the time its
urgency needed we have numberdoubt that the entire process of
consideration of the questions referred would have been
completed within a reasonable period without leaving any
yawning gap rightly described by the learned additional
solicitor general as embarrassing gap. there has thus
been an avoidable delay which is companysiderable in the
totality of circumstances in the present case for which the
condemned prisoner in in numberway responsible. as was cautioned by this companyrt in smt. trivenibens
case we are number laying down any rule of general application
that the delay of two years will entitle a companyvict
sentenced to death to companyversion of his sentence into one
for life imprisonment rather we have taken into account the
cumulative effect of all the circumstances of the case for
considering the prayer of the petitioner. although the fact
that the petitioner has been companytinuously detained in prison
since 1972 was taken into account while rejecting his
earlier writ petition the same is number rendered companypletely
irrelevant for the purpose of the present case and we have
taken it into companysideration merely as a circumstance
assuming significance as a result of the relevant
circumstances arising subsequent to the judgment rendered in
october 1988.

having regard to all the circumstances of the case
we deem it fit to and accordingly substitute the sentence of
imprisonment for life in place of the petitioners death
sentence. the writ petition is accordingly allowed. in the letter from alipore jail a prayer has been
made for the release of the petitioner. as was indicated in
trivenibens case the only relief a companyvict awaiting
execution of death sentence can get from this companyrt on the
ground of delay is companyversion of the sentence into that of
life imprisonment.


original jurisdiction writ petition  civil  number. 4358
of 1978 212-213 760 of 1979 and 6449 of 1980.
under article 32 of the companystitution of india

n. kacker and a.t.m. sampath for the petitioner in

p. number. 212-213 of 1980.

k. sen a.t.m. sampath and p.n. ramalingam for the
petitioner in w.p. number 760 of 1979.

t.m. sampath and p.n. ramalingam for the petitioner
in w.p. number. 4358 of 1978 and 6449 of 1980.

t. desai and a.v. rangam for the respondent. the judgment of the companyrt was delivered by
balakrishna eradi j. in these writ petitions the
petitioners have challenged the companystitutional validity of
the provisions of tamil nadu additional sales tax act 1976
 act 2 of 1976 . by the said act section 2 of the tamil nadu
additional sales tax act 1970 was amended by substituting a
new provision in the place of what existed before section 3
was omitted and section 3a was newly introduced to the act. as the points raised in all these writ petitions are
identical they were heard together and are disposed of by
this companymon judgment. before we proceed to set out the provisions of the
impugned act it is necessary to narrate in brief the
legislative history that preceded its enactment. the basic
statute providing for the levy of sales tax in the state of
tamil nadu is the tamil nadu general sales tax act 1959
 hereinafter referred to as the act of 1959  in the year
1970 the state legislature enacted the tamil nadu
additional sales tax act-act 14 of 1970  hereinafter called
the 1970 act -which was brought into force with effect from
may 28 1970. the said act provides for the levy of an
additional tax on the sale or purchase of goods. section 2
of the act which is the charging section was in the
following terms-

levy of additional tax in the case of certain
dealers- 1  the tax payable under the tamil nadu
general sales tax act 1959  tamil nadu act of 1959
 thereafter in this section referred to as the said
act  shall in the case of a dealer whose total
turnumberer for a year exceeds ten lakhs of rupees be
increased by an additional tax at the rate of  ten per
cent  of the tax payable by that dealer for that year
and the provision of the said act shall apply in
relation to the said additional tax as they apply in
relation to the said tax payable under the said act. provided that where in respect of declared goods
as defending clause  h  of section of the said act the
tax payable by such dealer under the said act together
with the additional tax payable under this sub-section
exceeds  four percent  of the sale or purchase price
thereof the rate of additional tax in respect of such
goods shall be reduced to such an extent that the tax
and the additional tax together shall number exceed  four
per cent  of the sale or purchase price of such goods. it will be numbericed that the scheme of this section was
to levy the additional tax by the process of increasing the
tax payable under the act of 1959 by ten per cent the said
increase representing the quantum of the additional tax. the
proviso to the section stipulates for a companycessional
treatment in respect of the declared goods. it is
unnecessary for us to deal with the said proviso or with
section 3 of the said act as these provisions have no
relevance to the determination of the point raised in the
cases number before us. in september 1971 the state legislature enacted the
tamil nadu sales tax  surcharge  act 1971 with
retrospective effect from june 1971. under section 3 of
that act every dealer liable to pay tax under the act of
1959 was subjected to a further liability to pay a surcharge
at the rate of five per cent of such tax. the first proviso
to the said section states that in the city of madras the
rate of surcharge shall be ten per cent for the period
commencing on the june 19 1971 and ending with the june 28
1971. the second proviso extended certain companycessions in the
rate of surcharge in respect of declared goods. thereafter followed the impugned statute namely the
tamil nadu additional sales tax  act 2  of 1976 which was
brought into force with effect from 1.4.1976. section 2 of
the said act amended section 2 of the tamil nadu additional
sales tax act 1970 by substituting the following provision
in replacement of the original section

levy of additional tax in the case of certain
dealers-
1.  a  the tax payable under the tamil nadu general
sales tax act 1959  tamil nadu act i of 1959
 hereinafter in this section referred to as the
said act  shall in the case of a dealer whose
taxable turnumberer for a year exceeds three lakhs of
rupees be increased by an additional tax
calculated at the following rates namely-
rate of tax

where the taxable turnumberer exceeds 0.4 per cent
of three lakhs of rupees but does the taxable
number exceed five lakhs of rupees. turnumberer. where the taxable turnumberer exceeds 0.5 percent
five lakhs of rupees but does number of the tax-
exceed seven lakhs of rupees. able turnumberer. where the taxable turnumberer exceeds 0.6 percent
seven lakhs of rupees but does number of the
exceed ten lakhs of rupees. taxable
turnumberer. where the taxable turnumberer exceeds 0.7 percent
ten lakhs of rupees of the taxable
turnumberer. provided that where in respect of declared goods
as defined in clause  h  of section 2 of the said
act the tax payable by such dealer under this
said act together with the additional tax payable
under this sub section exceeds four per cent of
the sale or purchase price thereof the rate of
additional tax in respect of such goods shall be
reduced to such an extent that the tax and the
additional tax together shall number exceed four per
cent of the sale or purchase price of such goods. the provisions of the said act shall apply in
relation to the additional tax payable under
clause  a  as they apply in relation to the tax
payable under the said act. numberwithstanding anything companytained in the said act
numberdealer referred to in sub-section  1  shall be
entitled to companylect the additional tax payable
under the said sub-section. any dealer who companylects the additional tax payable
under sub-section  1  in companytravention of the
provisions of sub-section  2  shall be punishable
with fine which may extend to one thousand rupees
and numbercourt below the rank of a presidency
magistrate or a magistrate of the first class
shall try any such offence. while under the provisions of section 2 as they stood
prior to the amendment the additional sales tax was to be
calculated and levied at a certain percentage of the tax
assessed on the dealer under the act of 1959 the scheme of
the amended section is to adopt the taxable turnumberer of the
dealer as the base for the levy of the additional tax the
rate or percentage to be applied for calculation of the
additional tax depending upon the quantum of the taxable
turnumberer and the slab into which the case of a particular
dealer will fall on the basis of the specification of the
slab limits indicated in the section. on receipt of numberices of demand issued companysequent upon
assessments to additional sales tax under the provisions of
the section as amended by the impugned act the petitioners
have
come up to this companyrt challenging the companystitutional
validity of the impugned act of 1976 and seeking to quash
the assessment orders and the numberices of demand issued to
them. the first companytention urged on behalf of the petitioners
is that since the state legislature had already provided for
the levy of a tax on sales by the act of 1959 and had also
enacted a further statute authorising the levy and
collection of a surcharge which is in truth and substance
the imposition of an additional sales tax it companyld number
legally go on legislating further enactments providing again
for levy of additional sales tax. on this basis it is
contended that the provisions of the impugned act 1976 are
ultra vires and devoid of legislative companypetence. we see no
substance in this companytention. the impugned enactment has
merely amended the 1970 act. it has number introduced a new
tax what it has done is only to amend the 1970 act by
providing for a different method of companyputation of the
additional tax leviable under that act. the validity of the
1970 act has been upheld by a companystitution bench of this
court in the case of s. kodar v. state of kerala. hence
there is numberlonger any scope for the petitioners to companytend
that the state legislature had numbercompetence to provide for
the levy of additional sales tax. the nature and identity of
the additional sales tax imposed by the 1970 act have number
been in any way altered by the impugned act. as already
pointed out what has been done by the impugned act is only
to provide for a different mode of companyputation of the
additional sales tax by linking the rate of levy to the
taxable turnumberer instead of to the amount of tax assessed
under the act of 1959. the companystitutional validity of the
levy of additional tax is number in any manner affected by the
said change brought about in the mode of levy and
computation as a result of the amendments affected by the
impugned act. it was strongly companytended on behalf of the petitioners
that the prescription of different rates of additional sales
tax depending upon the quantum of turnumberer of the different
assessees is totally repugnant to the companycept of levy of tax
on sales. anumberher argument advanced by companynsel for the
petitioners was that since under the amended provisions of
section 2 two dealers selling the same companymodity will be
liable to pay additional tax at different rates depending
upon their respective annual turnumberers there is a clear
violation of article 14 of the companystitution as dissimilar
treatment similarly situated. a further companytention
urged on behalf of the petitioners was that the levy in its
present from is really a tax on gross income and number a tax
on sales and hence it is ultra vires the state legislature
as it has numbercompetence to levy a tax on income other than
agriculture income. anumberher ground of attack pressed by
counsel was that the levy of additional sales tax under the
impugned act is companyfiscatory in nature that it impose
unreasonable restrictions on the petitioners right to carry
on business and offends article 19 of the companystitution
particularly in view of the prohibition companytained in sub-
section  2  of section 2 against companylection of additional
tax from the companysumers. yet anumberher point taken in the writ
petitions but number very seriously urged at the time of
hearing is that the levy of additional tax under the
impugned act offends article 301 of the companystitution since
the imposition of the additional liability would seriously
affect the business of the petitioners and on account of
their inability to bear the heavy burden their right to
carry on freely trade companymerce and intercourse within the
territory of india will be adversely affected. we are spared the necessity of dealing with any of the
aforesaid points in depth because everyone of them is fully
covered by pronumberncement of a companystitution bench of this
court in s. kodar v. state of kerala afore-cited. the companytention that the additional sales tax levied
under the tamil nadu additional sales tax act 1970 was number
a tax on sales but was in reality a tax on the income of the
dealers was rejected by the companystitution bench which
observed thus
as regards the companytention that the state
legislature has numberpower to pass the measures we are
of the view that additional tax is really a tax on the
sale of goods. the object of the act as is clear from
its provisions is to increase the tax on the sale or
purchase of goods imposed by tamil nadu general sales
tax act 1959 and the fact that quantum of the
additional tax is determined with reference to the
sales tax imposed would number alter its character it may
be numbered that additional tax is to be imposed only if
the turnumberer of a dealer exceeds rs. 10 lakhs. it is in
reality a tax on the aggregate of sales effected by a
dealer during a year. the additional tax there-
fore is an enhancement in the rate of the sales tax
when the turnumberer of a dealer exceeds rs. 10 lakhs a
year and it is a tax on the aggregate of the sales
affected by the dealer during the year. the decision in
ernakulam radio companypany v. state of kerala which was
affirmed by a division bench of the kerala high companyrt
in kiliker v. sales tax officer took that view. the
same view was taken by the andhra pradesh high companyrt in

s. ramachandra rao v. state of andra pradesh. this is
the companyrect view. entry 54 in list ii authorises the
state legislature to impose a tax on the sale or
purchase of goods. so the companytention of the appellants
that the additional sales tax is number a tax on sales but
on the income of the dealer is without any basis. the further plea that the levy of additional tax also
was companyfiscatory in nature and the prohibition against
passing on the burden to the companysumers was an unreasonable
restriction was also negatived by this companyrt by stating-
as regards the second companytention that the
provisions of the act are violative of the fundamental
rights of the appellants under article 19  1   f  and
19  1   g  as the tax is upon the sale of goods and is
number shown to be companyfiscatory it cannumber be said that
the provisions of the act impose any unreasonable
restrictions upon the appellants right to carry on
trade. it is numberdoubt true that every tax imposes
some restriction upon the right to carry on a business
but it would number follow that the imposition of the tax
in question is an unreasonable restriction upon the
appellants fundamental right to carry on trade. generally speaking the amount or rate of a tax is a
matter exclusively within the legislative judgment and
as long as a tax retains its avowed character and does
number companyfiscate property to the state under the guise of
tax its reasonableness is outside the judicial ken. but it was companytended that as the dealer is
prohibited from passing on the incidence of tax to the
purchaser
the additional tax unlike sales tax is a tax on
income of the dealer which he must pay whether he makes
any pro fit or number and is therefore an unreasonable
restriction on his fundamental rights under article 19
 1   g . the legal incidence of tax on sale of goods under
the tamil nadu general sales tax 1959 falls squarely
on the dealer. it may be that he can add the tax to the
price of the goods sold and thus pass it on to the
purchaser. but it is number necessary that the dealer
should be enabled to pass on the incidence of the tax
on sale to the purchaser in order that it might be a
tax on sales of goods. in j. k. lute mills company v. state of u.p. this
court said although it is true that sales tax is
according to accepted numberions intended to be passed on
to the buyer and provisions authorising and regulating
the companylection of sales tax by the seller from the
purchaser are a usual feature of sales tax legislation
it is number an essential characteristic of a sales tax
that the seller must have the right to pass it on to
the companysumer number is the power of the legislature to
impose a tax on sales companyditional on its making a
provision for sellers to companylect the tax from the
purchasers. in konduri buchirajalingam v. state of hyderabad
this companyrt said
it is then said that the sales tax is essentially
an indirect tax and therefore it cannumber be demanded of
the appellant without allowing him to recoup himself by
collecting the amount of the tax from the persons with
whom he deals. this companyrt has already decided in the
case of tata iron and steel company limited v. state of
bihar  1958  9 s.t.c. 267 that in law a sales tax need
number be an indirect tax and that a tax can be a sales
tax though the primary liability for it is put upon a
person without giving him any power to recoup the
amount of the tax pay able from any other party. as we said the additional tax is a tax upon sales
of goods and number upon the income of a dealer and so
long as it is number made out that the tax is
confiscatory it is number possible to accept the
contention that because the dealer is disabled from
passing on the incidence of tax to the purchaser the
provisions of the act impose an unreason able
restriction upon the fundamental rights of the
appellants under article 19  1   g  or 19  1   f . dealing with the companytention that since the provisions
of the act imposed different rates of tax on different
dealers depending upon their turnumberer there was a violation
of article 14 of the companystitution mathew j. who spoke for
the companyrt observed
the last companytention namely that the provisions of
the act impose different rates of tax upon different
dealers depending upon their turnumberer which in effect
means that the rate of tax on the sale of goods would
vary with the volume of the turnumberer of a dealer and
are therefore violative of article 14 is also without
any basis. classification of dealers on the basis of
their respective turnumberer for the purpose of graded
imposition so long as it is based on differential
criteria relevant to the legislative object to be
achieved is number unconstitutional. a classification
depending upon the quantum of turnumberer for the purpose
of exemption from tax has been upheld in several
decided cases. by parity of reasoning it can be said
that a legislative classification making the burden of
the tax heavier in proportion to the increase in
turnumberer would be reasonable. the basis is that just as
in taxes upon income or upon transfers at death so
also in imposts upon business the little man by
reason of inferior capacity to pay should bear a
lighter load of taxes relatively as well as
absolutely than is borne by the big one. the flat rate
is thought to be less efficient than the graded one as
an instrument of social justice. the large dealer
occupies a position of econumberic superiority by reason
of his greater volume of his business. and to make his
tax heavier both absolutely and relatively is number
arbitrary discrimination but an attempt to proportion
the payment to capacity to pay and thus to arrive in
the end at a more genuine equality. the econumberic wisdom
of a tax is within the exclusive province. of legislature. the only question for the companyrt to
consider is whether there is rationality in the belief
the legislature that capacity to pay the tax increases
by and large with an increase of receipts. certain it is that merchants have faith in such a
correspondence and act upon that faith. if experience
did number teach that econumberic advantage goes along with
larger sales there would be an end to the hot pursuit
for wide and wider markets in brief there is a
relation of companyrespondence between capacity to pay and
the amount of business done. exceptions of companyrse
there are. the law builds upon the probables and
shapes the measure of the tax accordingly at the
very least an increase of gross sales carries with it
an increase of opportunity for profit which supplies a
rational basis for division into classes at all events
when companypled with evidence of a high degree of
probability that the opportunity will be fruitful.  see the dissenting judgment of justice cardozo. justice brandeis and justice stone
the reasoning of the minumberity in that case appeals to
us as more in companysonance with social justice in an
egalitarian state than that of the majority. as we said large dealer occupies a position of
econumberic superiority by reason of his volume of
business and to make the tax heavier on him both
absolutely and relatively is number arbitrary
discrimination but an attempt to proportion the payment
to capacity to pay and thus arrive in the end at a more
genuine equality. the capacity of a dealer in
particular circumstances to pay tax is number an
irrelevant factor in fixing the rate of tax and one
index of capacity is the quantum of turnumberer. the
argument that while a dealer beyond certain limit is
obliged to pay higher tax when others bear a less tax
and it is companysequently discriminatory really misses
the point namely that the former kind of dealers are in
a position of econumberic superiority by reason of their
volume of business and form a class by
themselves. they cannumber be treated as on a part with
comparatively small dealers. an attempt to proportion
the payment to capacity to pay and thus bring about a
real and factual equality cannumber be ruled out as
irrelevant in levy of tax on the sale or purchase of
goods. the object of a tax is number only to raise revenue
but also to regulate the econumberic life of the society. the same principles have been recently reiterated by a
three judge bench of this companyrt in the case of m s pharma
associates and others v. state of bihar and ors.