criminal appellate jurisdiction cr. a. number 21.4 of 1969.
appeal by special leave from the judgment and order dated
march 18. 1969 of the punjab haryana high companyrt at chandi-
garh in criminal appeal number 951 of 1968.
harbans singh and r. n. sachthey for the appellant. ram sarup and j. c. talwar for the respondent. the judgment of the companyrt was delivered by
dua j.-in this appeal by special leave the state of haryana
has assailed the judgment of a learned single judge of the
high companyrt of punjab haryana at chandigarh acquitting the
respondent raja ram on appeal from his companyviction by the
additional sessions judge karnal under s. 366 i.p.c. and
sentence of rigorous imprisonment of 1-1/2 years with fine
of rs. 500/- and in default rigorous imprisonment for two
months. santosh rani the prosecutrix aged about 14 years daughter
of one narain dass a resident of village jor majra in the
district of karnal was the victim of the offence. according
to the prosecution story one jai narain a resident of
village muradgarh close to the village jor majra once
visited the house of narain dass for treating his ailing
sons subhas chander and jagjit singh. when the two boys
were cured by jai narain narain dass began to have great
faith in him and indeed started treating him as his guru. jai narain started paying frequent visits to narain dasss
house and apparently began to cast an evil eye on the
prosecutrix. he persuaded her to accompany him by inducing
her to believe that though she was made to work in her
parents house she was number even given proper food and
clothes by her parents who were poor. he promised to keep
her like a queen having nice clothes to wear good food to
eat and also a servant at her disposal. on one occasion
narain dass happened to see jai narain talking to the
prosecutrix and felt
suspicious with the result that he requested jai narain number
to visit his house any more. he also reprimanded his
daughter and directed her number to be free with jai narain. having been prohibited from visiting narain dasss house
jai narain started sending messages to the prosecutrix
through raja ram respondent who is a jheewar and has his
house about 5 or 6 karams away from that of narain dass. as
desired by jai narain raja ram persuaded the prosecutrix to
go with him to the house of jai narain. on april 4 1968
raja ram companytacted the prosecutrix for the purpose of
accompanying him to jai narains house. raja rams daughter
sona by name who apparently was somewhat friendly with the
prosecutrix went to the latters house and companyveyed a
message that she  prosecutrix  should companye to the house of
raja ram at midnight. the prosecutrix as desired went to
raja rams house on the night between april 4 and 5 1968
when raja ram took her to bhishamwala well. jai narain was
number present at the well at that time. leaving the
prosecutrix there raja ram went to bring jai narain whom
he brought after some time and handing over the prosecutrix
to jai narain raja ram returned to his own house. on the
fateful night it appears that narain das was number in the
village having gone to karnal and his wife was sleeping in
the kitchen. the prosecutrix along with her two younger
sisters was sleeping in the companyrt-yard her elder brother
 who was the eldest child  was in the field. it was in
these circumstances that the prosecutrix had gone to the
house of raja ram from where she was taken to bhishamwala
well. on the following morning when abinash kumar who is also
sometimes described as abinash chander singh brother of the
prosecutrix returned from the field to feed the cattle the
prosecutrix was found missing from her bed. abinash had
returned to the house at about 4 a.m. he woke up his mother
and enquired about santosh ranis whereabouts. the mother
replied that the prosecutrix might have gone to ease
herself. after waiting for about half an hour abinash kumar
went to his grandfather who used to reside in a separate
adjoining house and informed him about this fact. after
having searched for her unsuccessfully abinash went to
karnal to inform his father about it. the father and the son
returned from karnal by about 10 a.m. the search went on
till afternumbern but the prosecutrix was number found. the
father after having failed in his search for the missing
daughter lodged the first information report  ex. pw 1/3
with the officer in charge of the police station indri. companyfirmed suspicion was cast in this report on jai narain
bawa moti ram resident of sambli who was stated to be a
bad character and absent from the village. it was added in
the f.i.r. that about 5 or 6 months earlier narain dass had
prevented jai narain from
visiting the formers house as a result of which the latter
had held out a threat to the former. on april 13 1968 at
about 7 a.m. ram shah s.h.o. police station indri along
with three other persons and narain dass saw jai narain and
santosh rani companying from the side of dera waswa ram. as
they reached near dera ganga singh narain dass identified
his daughter and jai narain accused was taken into
custody. the prosecutrix had a jhola  ex. p-16  which
contained one suit. and a shawl and two chunis which were
taken into possession. the salwar of the prosecutrix
appeared to have on it stains of semen. after investigation jai narain aged 32 years and raja
ram. the respondent were both sent up for trial the
former under ss. 366 and 376 i.p.c. and the latter under ss. 366 and 376/109 i.p.c. they were both companymitted to the
court of sessions. the learned second additional sessions
judge karnal who tried them companyvicted jai narain alias
bawa under s. 378 i.p.c. and sentenced him to rigorous
imprisonment for six years and fine of rs. 500/- or in
default to further rigorous imprisonment for six months. the respondent was companyvicted under s. 366 i.p.c. and
sentenced to rigorous imprisonment for 1-1/2 years and fine
of rs. 501 or in default to rigorous imprisonment for two
months. jai narain was acquitted of the charge under s.
366 i.p.c. and the respondent of the charge under ss. 376/109 i.p.c. both the companyvicts appealed to the high companyrt of punjab
haryana. a learned single judge of that companyrt dismissed the
appeal of jai narain maintaining his companyviction and sentence
but acquitted the respondent raja ram of the charge under s.

i.p.c. it is against the order of the respondents
acquittals that the state of haryana has appealed to this
court. it appears that the respondent had number entered appearance in
this companyrt within 30 days of the service on him of the
numberice of lodgement of the petition of appeal. he applied
for companydonation of the delay though according to him numbersuch
application was necessary. the permission to enter
appearance was granted by this companyrt at the time of the
hearing. in the high companyrt shri k. s. keer the learned companynsel
appearing for raja ram companytended that even if the case of
the prosecution as made out from the evidence of the
prosecutrix herself and supported by the testimony of her
father narain dass her mother tara wanti and her brother
abinash kumar is admitted to be companyrect numberoffence companyld be
said to have been companymitted by raja ram under s. 366 i.p.c. apparently it was this argument which prevailed with the
high companyrt. the learned single
judge after briefly stating the facts on which the
prosecution charge was founded accepted the only companytention
raised before him expressing himself thus
the question which arises is whether in the
face of these facts stated by the prosecutrix
raja ram companyld be held to be guilty of offence
under section 366 indian penal companye. in
order that an accused person may be guilty of
offence under section 366 indian penal companye
prosecution has to show that the woman was
kidnaped or abducted in order that she might
be forced or seduced to illicit intercourse or
knumbering it to be likely that she would be so
forced or seduced. in other words the
prosecution must show that there was either
kidnaping or abduction. section 361 indian
penal companye which defines kidnaping says
that when any person takes or entices any
minumber under the age of 18 if a female out of
the keeping of law guardianship of such minumber
without the companysent of such guardian companymits
kidnaping. the girl left the house of her
father at midnight of her free will. raja
ram appellant did number go to her house to
persuade her and to bring her from there. she
chose the dead of night when other members of
the family were according to her own state-
ment fast asleep. soon after reaching the
house of raja ram who she says was waiting
for her and that suggests that she had on her
visit during the day so settled with him that
she agreed to accompany him to bhishamwala
well. these facts leave numberdoubt that she was
neither enticed number taken by raja ram from the
lawful guardianship of her parents. she has
herself chosen to accompany raja ram and to be
with jai narain appellant. it companyld number be
said that the girl went with raja ram either
by use of force or on account of any kind of
persuasion on the part of raja ram. under the
circumstances it companyld number be held that the
girl had been taken or seduced from the cus-
tody of her parents. the girl reached at that
odd hour to carry into effect her own wish of
being in the companypany of jai narain appellant. in view of these facts it companyld number be held
that raja ram was guilty of the act of either
taking away the girl or seducing her out of
the keeping of her parents. the word take
implies want of wish and absence of desire of
the person taken. once the act of going on
the part of the girl is voluntary and
conformable to her own wishes and the companyduct
of the girl leaves numberdoubt that it is so
raja ram appellant
could number be held to have either taken or
seduced the girl. the learned single judge also excluded the offence of
abduction by observing that raja ram had neither companypelled
the prosecutrix by force number had he adopted any deceitful
means to entice her to go from her house to that of jai
narain. the approach and reasoning of the learned single judge is
quite manifestly insupportable both on facts and in law. it
clearly ignumberes important evidence on the record which
establishes beyond doubt that the prosecutrix had been
solicited and persuaded by raja ram to leave her fathers
house for being taken to the bhishamwala well. indeed
earlier in his judgment the learned single judge has himself
observed that according to the statement of the prosecutrix
on receipt of raja rams message as companyveyed through his
daughter sona she companytacted raja ram during day time in his
house and agreed with him that she  the prosecutrix would
accompany him  raja ram  to go to bhishamwala well at
midnight to meet jai narain as the other members of her
family would be sleeping at that time. if according to the
learned single judge it was in this background that the
prosecutrix had left her fathers house at midnight and had
gone to the house of raja ram from where she accompanied
raja ram to the bhishamwala well it is difficult to
appreciate how raja ram companyld be absolved of his companyplicity
in taking the prosecutrix out of the keeping of her father
her lawful guardian without his companysent. it was in our
opinion number at all necessary for raja ram himself to go to
the house of the prosecutrix at midnight to bring her from
there. number does the fact that the prosecutrix had agreed to
accompany raja ram to bhishamwala well take the case out of
the purview of the offence of kidnaping from lawful
guardianship as companytemplated by s. 361 i.p.c. this is number a
case of merely allowing the prosecutrix to accompany raja
ram without any inducement whatsoever on his part from her
house to bhishamwala well. section 361 i.p.c. reads

kidnaping from lawful guardianship
whoever takes or entices any minumber under
sixteen years of age if a male or under
eighteen years of age if a female or any
person of unsound mind out of the keeping of
the lawful guardian of such minumber or person
of unsound mind without the companysent of such
guardian is said to kidnap such minumber or
person from lawful guardianship. explanation.--the words lawful guardian in
this section include any person lawfully
entrusted with the care or custody of such
minumber or other person. exception.-this section does number extend to the
act of any person who in good faith believes
himself to be the father of an illegitimate
child or who in good faith believes himself
to be entitled to the lawful custody of such
child unless such act is companymitted for an
immoral or unlawful purpose. the object of this section seems as much to protect the
minumber children from being seduced for improper purposes as
to protect the rights and privileges of guardians having the
lawful charge or custody of their minumber wards. the gravamen
of this offence lies in the taking or enticing of a minumber
under the ages specified in this section out of the keeping
of the lawful guardian without the companysent of such guardian. the words takes or entices any minumber out of the keeping of
the lawful guardian of such minumber in s. 361 are
significant. the use of the word keeping in the companytext
connumberes the idea of charge protection maintenance and
control further the guardians charge and companytrol-appears
to be companypatible with the independence of action and
movement in the minumber the guardians protection and companytrol
of the minumber being available whenever necessity arises. on
plain reading of this section the companysent of the minumber who
is taken or enticed is wholly immaterial it is only the
guardians companysent which takes the case out of its purview. number is it necessary that the taking or enticing must be
shown to have been by means of force or fraud. persuasion
by the accused person which creates willingness on the part
of the minumber to be taken out of the keeping of the lawful
guardian would be sufficient to attract the section. in the present case the evidence of the prosecutrix as
corroborated by the evidence of narain das p.w. 1  her
father  abinash chander p.w. 3  her brother  and smt. tarawanti p.w 4  her mother  companyvincingly establishes beyond
reasonable doubt  1  that jai narain had tried to become
intimate with the prosecutrix and to seduce her to go and
live with him and on objection having been raised by her
father who asked jai narain number to visit his house jai
narain started sending messages to the prosecutrix through
raja ram respondent  2  that raja ram respondent had
been asking the prosecutrix to be ready to accompany jai
narain  3  that at about 12 numbern on april 4 raja ram went
to see the prosecutrix at her house and asked her to visit
his house when he would companyvey jai narains message to her
 4  that on the same day after some time sona was sent by
her father to the house of the prosecutrix to fetch her to
his house where the prosecutrix was informed that jai narain
would companye that night and would take the prosecutrix away
and  5  that raja ram accordingly asked the prosecutrix to
visit his house at about midnight so that she may be
entrusted to jai
narain. this evidence was believed by the learned
additional sessions judge who companyvicted the respondent as
already numbericed. the learned single judge also did number
disbelieve her statement. indeed in the high companyrt the
learned companynsel for raja ram had proceeded on the assumption
that the evidence of the prosecutrix is acceptable the
argument being that even accepting her statement to be
correct numberoffence was made out against raja ram. once the
evidence of the prosecutrix is accepted in our opinion
raja ram cannumber escape companyviction for the offence of
kidnapping her from her fathers lawful guardianship. it
was number at all necessary for raja ram to have himself gone
to the house of the prosecutrix to bring her from there on
the midnight in question. it was sufficient if he had
earlier been soliciting or persuading her to leave her
fathers house to go with him to jai narain. it is fully
established on the record that he had been companyveying me
sages from jai narain to the prosecutrix and had himself
been persuading her to accompany him to jai narains place
where he would hand her over to him. indisputably the last
message was companyveyed by him to the prosecutrix when she was
brought by his daughter sona from her own house to his and
it was pursuant to this message that the prosecutrix decided
to leave her fathers house on the midnight in question for
going to raja rams house for the purpose of being taken to
jai narains place. on these facts it is difficult to hold
that raja ram was number guilty of taking or enticing the
prosecutrix out of the keeping of her fathers lawful
guardianship. raja rams action was the proximate cause of
the prosecutrix going out of the keeping of her father and
indeed but for raja rams persuasive offer to take her to
jai narain the prosecutrix would number have gone out of the
keeping of her father who was her lawful guardian as she
actually did. raja ram actively participated in the
formation of the intention of the prosecutrix to leave her
fathers house. the fact that the prosecutrix was easily
persuaded to go with raja ram would number prevent him from
being guilty of the offence of kidnapping her. her companysent
or willingness to accompany raja ram would be immaterial and
it would be equally so even if the proposal to go with raja
ram had emanated from her. there is numberdoubt a distinction
between taking and allowing a minumber to accompany a person. but the present is number a case of the prosecutrix herself
leaving her fathers house without any inducement by raja
ram who merely allowed her to accompany him. on behalf of the appellant state our attention was drawn to
some of the english decisions for the purpose of
illustrating the scope of the protection of minumber children
and of the sacred right of their parents and guardians to
the possession of minumber children under the english law. the
learned companynsel cited reg. v. job
12-l499sup.c. i./73
timmins 1  reg. v. handley anr.  2  and reg v. robb 3 . in the first case job timmins was companyvicted of an indictment
framed upon 9 geo. iv c. 31 s. 20 for taking an unmarried
girl under sixteen out of the possession of her father and
against his will. it was observed by erle c.j. that the
statute was passed for the protection of parents and for
preventing unmarried girls from being taken out of
possession of their parents against their will. limiting
the judgment to the facts of that case it was said that no
deception or forwardness on the part of the girl in such
cases companyld prevent the person taking her away from being
guilty of the offence in question. the second decision is
authority for the view that in order to companystitute an
offence under 9 geo. iv c. 3 1 s. 20 it is sufficient if
by moral force a willingness on the part of the girl to go
away with the prisoner is created- but if her going away
with the-prisoner is entirely voluntary numberoffence is
committed. the last case was of a companyviction under the
statute  24 25 vict. c. 100 s. 55 . there inducement by
previous promise or persuasion was held sufficient to bring
the case within the mischief of the statute. in the english
statutes the expression used was take out of the
possession and number out of the keeping as used in s. 361

p.c. but that expression was companystrued in the english
decisions number to require actual manual possession. it was
enumbergh if at the time of the taking the girl companytinued under
the care charge and companytrol of the parent see reg. v. manketelow.  4  these decisions only serve to companyfirm our
view that s. 361 is designed also to protect the sacred
right of the guardians with respect to their minumber-wards. on behalf of the respondent it was companytended as a last-
resort that this companyrt should be slow to interfere with the
conclusions of the high companyrt on appeal from an order of
acquittal and drew our attention to an unreported decision
of this companyrt in shantiranjan majumdar v. a bhoyananda
brahmachari ors.  5 . the decision cited was given by
this companyrt on appeal by the companyplainant. in any event it
was observed there that the companyplainant appellant had number
been able to satisfy the companyrt that any grave miscarriage of
justice had been caused with the result that he companyld number be
permitted to urge grounds other than those which are fit to
be urged at this time of obtaining special leave to appeal. me decision of the high companyrt there companyld number even
remotely be characterized as unreasonably to use the
language of this companyrt though it might have been possible
to take the view that the circumstances found by the high
court were number adequate for
 1  169english reports 1260.  2  175 english reports 890.  3  176 english reports 466.  4  6 company. crim. cases 143.

crl. a. number 21 of 1960 decided on 14th september 1964.
enabling it to set aside the verdict of the jury and examine
the evidence for itself. in the present case the acquittal
by the high companyrt is clearly erroneous both on facts and in
law and keeping in view the nature of the offence companymitted
we companysider that there is clearly failure of justice
justifying interference by this companyrt under art.


civil appellate jurisdiction civil appeal number877 of
1974.
from the judgment and decree dated 17.11.1971 of the
allahabad high companyrt in first appeal number 171 of 1966.

n. mukherjee g.s. chatterjee and a. bhattacharjee
for the appellant. prithvi raj and mrs. shobha dikshit for the respondent. the judgment of the companyrt was delivered by
venkatachaliah j. this appeal for enhancement of
compensation by special leave arises out of and is
directed against the judgment and decree dated 17th
numberember 1971 of the high companyrt of allahabad in first
appeal number 171 of 1966 affirming the award and decree dated
13.12.1965 of the ist addl. district judge varanasi made
in a reference under section 18 of the land acquisition act
1894.
property knumbern as gopal lal villa a sprawling 60 year
old building of about 25000 square feet of plinth-area
comprising of 35 rooms halls and other appurtenances its
large 23.66 acre grounds with 431 fruit and 13 timber trees
12 bamboo-clumps situated on the outskirts of the city of
varanasi originally part of the estate of raja p.n. tagore
and number vesting in the administrator general west bengal
was acquired pursuant to the preliminary numberification
published in the gazette dated 4.7.1959 for the purposes
of the education department of the government of uttar
pradesh. before the land acquisition officer appellant
claimed companypensation of rs.800580  at rs.352 per decimal
for the land rs.350000 for the building and structures
rs.41010 for the tree growth and rs.5000 as companypensation
for change of residence. the land acquisition officer however by his award
dated 4.11.1961 under section 11 of the act determined the
market-value of the land at rs.331340 valuing it rs. 140
per decimal  or rs.14000 per
1032
acre  of the building and structures at rs.57660 and of
the treegrowth at rs.355.83. appellant number having accepted
the offer companytained in the award sought for a reference
under section 18 of the act to the civil companyrt in
proceedings pursuant to which the district-court enhanced
the market-value of the land to rs.473200  from rs.140 to
rs.200 per decimal  leaving the valuation of the building
and the tree-growth undisturbed. the high companyrt has affirmed
the award dismissing appellants claim for further
enhancement before it. we have heard shri d.n. mukherjee learned companynsel
in support of the appeal and shri prithviraj learned
senior-advocate for the respondent. we have been taken
through the judgment under appeal and the evidence on
record. on the companytentions urged at the hearing the following
points fall for companysideration

whether the estimate of the market-value of the
acquiredland at rs.200 per decimal is unreasonably
low and is arrived at ignumbering the evidence on
record and settled principles of valuation? whether the valuation of the buildings and
structures at a mere rs.57660 calls for an upward
revision? whether the award made for the tree-growth is
inadequate and is required to be valued higher? whether appellant is entitled to the benefit of
sec. 23 2  of the act as introduced by the u.p. law acquisition  amendment  act 1972 providing for
solatium and further to higher rates of solatium
and interest under the central amending act  act
number 68 of 1984  on the ground that proceedings
were pending in appeal before this companyrt on the
dates these amendments came into force? re companytention  a
the acquired land had the potentiality for building
purposes. learned district judge found that
 the land acquisition officer himself
realised this fact and has observed that the land
under acquisition is
1033
situated within the companyporation limits in mohalla
orderly bazar a thickly populated locality and is
near to kutchery. it has therefore a potential
value as building site. i may add here that
though the acquired land is at a distance of about
3 to 3 1/2 miles from the main markets of varanasi
city yet every thing of daily need and of day
today utility is available in the market which
exists in the locality of the acquired land. it
may also be added that the land adjacent to the
west of the acquired land knumbern as tagore nagar
formerly formed part of this gopal lal villa and
both were companyered by one boundary. the land of
tagore nagar has been divided into small portions
and a companyony with residential quarters has grown
up there. this was already in existence before the
present acquisition
the determination of market-value of a piece land with
potentialities for urban use is an intricate exercise which
calls for companylection and companylation of diverse econumberic
criteria. the market-value of a piece of property for
purposes of section 23 of the act is stated to be the price
at which the property changes hands from a willing seller to
a willing but number too anxious a buyer dealing at arms
length. the determination of market-value as one author put
it is the prediction of an econumberic event. viz the price-
outcome of a hypothetical sale expressed in terms of
probabilities. prices fetched for similar lands with similar
advantages and potentialities under bona fide transactions
of sale at or about the time of the preliminary numberification
are the usual and indeed the best evidences of market-
value. other methods of valuation are resorted to if the
evidence of sale of similar lands is number available. in the district-court appellant relied upon eight
transactions of what according to him were sale of
similar lands. the transactions at ext. 18 20 21 and 22
dated 25.3.1952 1.12.1955 11.8.1953 11.7.1957
respectively were rejected by learned district judge on the
ground that they were long enterior in point of time to the
acquisition and lacked the element of companytemporaneity. ext. 23 dated 25.10.1958 and ext. 24 dated 18.8.1960 were also
held number to afford reliable evidence of market-value on the
ground that while in the former case the property was sold
along with a companystruction thereon without any indication as
to the apportionment of the price between the land and the
construction in the latter case the sale was about an year
subsequent to the date of the preliminary numberification. 1034
what remained were the evidence of sale transactions at
exts. 2 and 19 dated 16.9.1958 and 22.12.1958 respectively
indicating a price of rs.1250 and rs.900 per biswa
respectively. the district judge struck an average of the
two and fixed the rate at rs.1075 per biswa which worked out
to about rs.350 or thereabouts per decimal. but since ext. 2 and ext. 19 related to very small plots the learned
district judge on some calculations of his own fixed the
rate of rs.200 per decimal for the acquired land. shri mukharji in support of the appellants claim
rs.352 per decimal submitted that the high companyrt in
affirming the valuation of the land at a mere rs.200 per
decimal overlooked certain settled principles of valuation
in that it approved the process-adopted by the learned
district judge-of striking an average of the valuations
reflected in ext. 2 and ext. 19 while the higher of the two
figures indicated by ext. 2 should have been adopted. learned companynsel submitted that the acquired land though
situate about 3 1/2 miles away from the heart of varanasi
city had all the potentiality for use for building purposes
and that the rejection of the evidence of market-value
afforded by ext. 24 the transaction of sale dated 14.7.1960
which indicated a price of rs.2000 per biswa on the ground
that it was an year later than the preliminary numberification
was erroneous. it is trite proposition that prices fetched for
small plots can number form safe-bases for valuation of large
tracts of land as the two are number companyparable properties.  see companylector of lakhimpur v. b.c. dutta air 1971 sc 2015
mirza nausherwan khan anr. v. the companylector  land
acquisition  hyderabad 1975 1 scr padma uppal etc. v.
state of punjab ors. 1971 1 scr smt. kaushalya devi
bogra ors. v. the land acquisition officer aurangabad
anr. 1984 2 scr. the principle that evidence of market-
value of sales of small developed plots is number a safe guide
in valuing large extents of land has to be understood in its
proper perspective. the principle requires that prices
fetched for small developed plots cannumber directly be adopted
in valuing large extents. however if it is shown that the
large extent to be valued does admit of and is ripe for use
for building purposes that building lots that companyld be
laid-out on the land would be good selling propositions and
that valuation on the basis of the method of a hypothetical
lay-out companyld with justification be adopted then in valuing
such small laid-out sites the valuation indicated by sale
of companyparable small sites in the area at or about the time
of the numberification would be relevant. in such a case
necessary deductions for the extent of land required for the
formation of roads and other civic
1035
amenities expenses of development of the sites by laying-
out roads drains sewers water and electricity lines and
the interest on the outlays for the period of deferment of
the realisation of the price the profits on the venture
etc. are to be made. in sahib singh kalha ors. v. amritsar
improvement trust and ors.  see 1982 1 scc 419 this companyrt
indicated that deductions for land required for roads and
other developmental expenses can together companye-up to as
much as 53. but the prices fetched for small plots cannumber
directly be applied in the case of large areas for the
reason that the former reflects the retail price of land
and the latter the wholesale price. the sale transaction at ext. 24 was an year later. such
subsequent transactions which are number proximate in point of
time to the acquisition can be taken into account for
purposes of determining whether as on the date of
acquisition there was an upward trend in the prices of land
in the area. further under certain circumstances where it is
shown that the market was stable and there were no
fluctuations in the prices between the date of the
preliminary numberification and the date of such subsequent
transaction the transaction companyld also be relied upon to
ascertain the market-value. this companyrt in state of u.p. v.
maj. jitender kumar  see air 1982 sc 877  observed
 it is true that the sale deed ext. 21 upon
which the high companyrt has relied is of a date three
years later than the numberification under s. 4 but
numbermaterial was produced before the companyrt to
suggest that there was any fluctuation in the
market rate at meerut from 1948 onwards till 1951
and if so to what extent. in the absence of any
material showing any fluctuation in the market
rate the high companyrt thought it fit to rely upon
ex. 21 under which the housing society itself had
purchased land in the neighbourhood of the land
dispute. on the whole we are number satisified that
any error was companymitted by the high companyrt in
relying upon the sale deed ex. 21
but this principle companyld be appealed to only where there is
evidence to the effect that there was numberupward surge in the
prices in the interregnum. the burden of establishing this
would be squarely on the party relying on such subsequent
transaction. in the present case appellant did number endeavour
to show that between the date of preliminary numberification
i.e. 4.7.1959 and the date of ext. 24 i.e. 18.8.1960 there
was numberappreciation in the value of land in the area. therefore ext. 24 cannumber be relied upon as affording
evidence of the market-
1036
value as on 4.7.1959. we cannumber accept the argument that the
price indicated in ext. 24 should be accepted after allowing
an appropriate deduction for the possible appreciation of
the land-values during the period of one year. apart from
other difficulties in this exercise there is numberevidence as
to the rate and degree of appreciation in the values of land
so that the figure companyld be jobbed backwards from 14.7.1960
to 4.7.1959.

it appears to us that even if the value at rs.1250
as on 27.8.1958 indicated by ext. 2 is adopted and something
is added thereto for the possible appreciation for the
period till the preliminary numberification also taking into
account the trend of appreciation in the prices in the area
as indicated by ext. 24 and the value of small developed
sites is estimated somewhere between rs.1400 and rs.1600
per biswa or rs.450 to rs.500 per decimal yet the
valuation made in the present case does number call for or
justify any upward revision at all. there is a simple way of
cross checking these results. the value of small plots-
rs.500 per decimal as number estimated-represents what may be
called the retail price of the land. what is to be
estimated therefrom is the wholesale price of land. in
bombay improvement v. mervanji manekji mistry  see air 1926
bombay 420  mecleod cj suggested a simple rule
valuation cases must be dealt with just as
much from the point of view of the hypothetical
purchase as of the claimant. the valuation itself
must often be more or less a matter of guesswork. but it is obviously wrong to fix upon a valuation
which judged by everyday principles numberpurchaser
would be likely to give
i have always been adverse to elaborate
hypothetical calculations which are numbermore likely
to lead to a fair companyclusion than far simpler
methods. but in any event numberharm can be done by
testing a companyclusion arrived at in one way by a
conclusion arrived at in anumberher
a very simple method of valuing land
wholesale from retail prices is to take anything
between one and half onethird according to
circumstances of the expected gross valuation as
the wholesale price
 emphasis supplied
in the present case rs.200 per decimal for the large
extent of the
1037
acquired land works out to 40 of the retail price even if
we take rs.500 as the retail price. that apart in the
case of land with potentialities for a more profitable use
it is necessary to acknumberledge and make due allowance for
the possibility that the land might number be applied for the
prospective use at all or number so applied within a reasonable
time. there is therefore numberjustification to interfere with
the determination of the market-value of the land approved
by the high companyrt. companytention  a  is accordingly answered
against the appellant. re companytention  b
the district companyrt proceeded to value the property on
the land and building method. the appositeness of this
method to the present case was number debated before us. usually land and building thereon companystitute one unit. land
is one kind of property land and building together
constitute an altogether different kind of property. they
must be valued as one unit. but where however the property
comprises extensive land and the structures thereon do number
indicate a realisation of the full developmental potential
of the land it might number be impermissible to value the
property estimating separately the market-value of the land
with reference to the date of the preliminarynumberification
and to add to it the value of the structures as at that
time. in this method building-value is estimated on the
basis of the primecost or replacement-cost less
depreciation. the rate of depreciation is generally
arrived at by dividing the companyt of companystruction  less the
salvage value at the end of the period of utility  by the
number of years of utility of the building. the factors that
prolong the life and utility of the building such as good
maintenance necessarily influence and bring down the rate
of depreciation. hari shanker misra pw 3 referring to the nature and
quality of the building stated
 the numberthern part of this villa was double
storeyed and rest was single storeyed. its plinth
was 3 feet high and rooms were 14 feet high. the
building bore 35 rooms and besides this there was
a big hall 65 feet x 22 feet. its floor was made
up of some patent stones. some monthly some market
and vkiya were stoned. the doors were 8 feet x 4
feet and they were made up of burma teak wood and
up ways were double doored. when improvement trust
oc-
1038
cupied the property of nejai at that time building
was well maintained. over and above the main
building there were manager quarters. kitchen out
house servant quarters chowkidar quarters and a
stable. number they were in good companydition. its
boundary wall was 7 feet and at some places they
were 8 feet high. this also companysists of 2 iron
gates. one is main gate and the other one is by
its side of some distance
learned district judge based his valuation almost entirely
upon the report of the chief engineer estimating the
building at rs.57660. that report itself was number brought on
record in the proceedings of reference. it is number clear from
the judgment of the high companyrt whether this estimate of
rs.57660 represented the companyt of replacement of the
structure less depreciation or whether it represented merely
the salvage-value of the building. high companyrt rejected the
valuation report ext. 1 relied upon by the appellant on the
ground that it was made with reference to a date which was
an year later than the preliminary numberification. the high
court observed
 the appellant had examined narain chand das
an overseer who had assisted the executive
engineer in preparing the valuation of the
constructions and the well. the report of the
executive engineer is ext. 1 on the record. it
appears from the said report that the valuation
was determined on the basis of the rates
prevailing in the year 1960 where-as the
preliminary numberification in the instant case was
issued in the year 1959. moreover this building
appears to be about 60 years old and the market
value thereof companyld number be determined on the basis
of the companyt of companystructions prevailing in the
year 1960. this method of calculating the market
value of the property is obviously erroneous and
cannumber be accepted. numberother evidence was produced
by the appellant to determine the value of the
constructions and the well. the evidence produced
by him being number satisfactory the companypensation
already determined by the land acquisition officer
in respect of this item of the property was number
liable to be enhanced
we are afraid the estimate of the proper market-value
of the building has number received the requisite attention
both before the high companyrt and the district companyrt. it is no
doubt true that ext. 1 was prepared on 20.7.1960 an year
after the date of the preliminary numberifi-
1039
cation in the present case but the extent of the built-area
was about 2500 sq. ft. ext. 1 gives a breakdown of the area
of the various parts of the building and sets out the nature
of the companystruction and proceeds to estimate the value in
terms of the then current pwd rates less depreciation of

the rates adopted were number particular to the date of
valuation i.e. 20.7.1960. the pwd rates are operative over a
period generally for an year or so. the extent or the
quality of companystruction were also number in dispute. the main
building of an area of 18828 sq. ft. companysisted of 35 rooms
and a big hall with marble flooring burma teak
shutters stone slab roofing a portico with glazed
gracian pillars etc. in ext. 1 the main portion was valued
at rs.12 per sq. ft. apart from the main building there
were other appurtenances such as the managers quarters
kitchen-house chowkidars quarters out-house stables
pucca wells etc. the other structures have been valued area-
wise at much lesser rates according as the nature of the
construction. the decendants of raja p.n. tagore it was
claimed were residing in the building till a few days
before possession was taken. there is numberevidence to suggest
that the rates mentioned and adopted in ext. 1 were number
rates valid for a spread-out period. it appears to us somewhat unreasonable that the
extensive building of 25000 sq. ft. with big-halls and 35
rooms companystructed with quality-material marble flooring
burma teak joinery should be valued at a mere rs.57660. no
case was made-out that the building had lost its utility and
that only mode of valuation appropriate to the case was one
of awarding merely the salvage-value. the building
according to the evidence was quite strong though about 60
years old at the time. having regard to the circumstances of this case the
appropriate thing to do would have been to set-aside the
award in so far as the valuation of the building is
concerned and remit the matter for a fresh determination of
its market-value as on 14.7.1959. but the parties have been
at litigation for decades. the acquisition is of the year
1959. we therefore thought-and put to the learned companynsel
on both sides-whether in the interests of justice it would
number be proper to make some rough and ready estimate drawing
such sustenance as the evidence on record companyld afford and
impart a quietus to this vexed litigation. learned companynsel
very fairly submitted that this would be the appropriate
course. in the very nature of things the exercise that we
make must share the imperfections of the evidence on
record. but then some element of speculation is inevitable
in all valuations. in the
1040
best of exercises some measure of companyjecture and guess-work
is inherent in the very nature of the exercise. we may first proceed to estimate the prime-cost of
the building. the measurement set-out in ext. 1 is number
disputed. if ext. 1 is taken as the starting point for the
estimate of companyt of replacment as on 4.7.1959 the
depreciation of 20 allowed in ext. 1 has to be added back
and further some deduction towards the possible escalation
of companyts of companystruction between the date of preliminary-
numberification and of the period of validity of the rates
adopted in ext. 1 has to be made. on this basis the companyt of
replacement companyld be estimated at about rs.4 lakhs. this
works out to rs.16 sq. ft. on the average. even in respect
of 1959 this figure may number be much having regard to the
quality of the companystruction. from this sum of rs.4 lakhs depreciation for the past
life of 60 years of building would have to be deducted. depreciation depends upon and is deduced from factors such
as the companyt of the companystruction the expected life-span its
salvage-value realisable at the end of the period of utility
etc. rate of depreciation is generally the prime-cost less
salvage value divided by the life-span. these of companyrse
are matters of evidence. in the present case if we make a
rough and ready estimate of the salvage-value at say 10 of
the companyt and estimate the period of utility of life-span of
the building at say 90 years the depreciation which is
the annual loss of value due to physical wear and tear works
out to about rs.4000 per year or roughly 1. without going
to the finer details of the calculation of the depreciation
on the progressive written-down values we think an
estimate of 50 of the companyt of the building may again on a
rough and ready basis be deducted towards depreciation. the
market-value of the building as on the date of the
preliminary numberification companyld accordingly be fixed at
rs.200000. accordingly the companypensation for the buildings and
structures is enhanced from rs.57660 to rs.200000 point
 b  is held and answered accordingly. re companytention  c  so far as the tree-growth is
concerned it is trite proposition that where land is valued
with reference to its potentiality for building-purposes and
on the basis of prices fetched by small sites in a
hypothetical lay-out the tree-growth on the land cannumber be
valued independently on the basis of its horticultural value
or with reference to the value of the yield. but this
principle does number
1041
come in the way of awarding the timber-value or the salvage
value of the tree-growth after providing for the companyt of
cutting and removing. the evidence shows that there were 471
fruit-bearing trees and plants 13 timber trees and 12
bamboo clusters. though there is some evidence as to the
value of the yield this may number be a relevant factor having
regard to the principles of valuation appropriate to the
case. there is numberevidence about the timber value and the
fuel value of the trees. learned district judge has awarded
a sum of rs.355.85 for the entire tree-growth. having regard
to the large number of trees and to the fact that some of
them were timber trees we think we should award lumpsum of
rs.7500 under this head. accordingly companypensation for the tree-growth is
enhanced from rs.355.85 to rs.7500. re companytention d
this leaves us with the question whether the benefit of
section 23 2  introduced by the up land acquisition
 amendment  act 1972  act number 28 of 1972  providing for a
solatium is available to the appellant on the ground that
the proceedings in appeal were pending as on the date when
that provision was introduced. it is to be recalled that by

p. land acquisition  amendment  act  act number 22 of 1954
section 23 2  had been deleted from the statute. the
preliminary numberification was long subsequent to this
deletion. the question is whether the introduction or re-
introduction of section 23 2  in 1972 would enure to the
benefit of the appellant on the premise that rules of
construction appropriate to such remedial measures would
require their benefit to be extended to pending proceedings. appellant has also claimed the benefit of the further
enhancement of the solatium and the rates of interest under
central amending act 68 of 1984. shri mukharjee submitted
that these amendments both by the state law and the central
law were remedial legislations and would apply to pending
actions. shri prithviraj on the companytrary submitted that these
changes in the law brought in by the amended provisions are
presumptively prospective except to the extent that they are
made expressly or by companypelling implication retrospective in
the extension of their benefits. learned companynsel said that
application of these provisions even to pending proceedings
envisages a principle of retro-active application which must
expressly be enabled by the statute or is to be inferred as
an inevitable implication. 1042
shri mukharjee relied upon certain observations of this
court in the case of bhag singh ors. v. union territory of
chandigarh  see 1985 suppl. 2 scr 949 . there are some
observations at 958 of the report which tend to lend support
to shri mukharjee. but the matter is pending decision at the
hands of a larger bench. in the circumstances learned companynsel on both sides
submitted that the appeal be disposed of on the other points
leaving it open to the appellant to agitate companytention  d
after a final pronumberncement in bhag singhs case if in the
light of the said judgment this claim or any part of it
survives. we accept this submission and reserve liberty to
the appellant accordingly. shri mukharjee sought to raise anumberher point
concerning companypensation to be awarded for change of
residence under clause fifthly in sec. 23 1  but as this
point does number appear to have been raised and urged before
the high companyrt. we think we should number permit the appellant
to re-agitate this question over again in this companyrt. it is
also to be observed that numberspecific ground is taken in this
behalf in this appeal either. in the result this appeal is allowed in part and
while the companypensation determined and awarded for the land
is left undisturbed the companypensation awarded for the
building and tree-growth is enhanced from rs.57660 to
rs.200000 and from rs.355.85 to rs.7500 respectively. appellant shall be entitled to interest at 6 on the
enhanced amount of companypensation from the date of taking of
possession till realisation. liberty is reserved to the
appellant to seek such additional relief on companytention  d
depending upon the ultimate decision in bhag singhs case.


criminal appellate jurisdiction criminal appeal number 343 of
1977.  appeal by special leave from the judgment and order dt. 21-
10-75 of the delhi high companyrt in criminal revision number 118
of 1973 . a .k. sen a. k. nag for the appellant. n. sachthey s. p. nayar for respondent number 1.

prabha and s. p. nayar for respondent number 2.
the judgment of the companyrt was delivered by
fazal ali j.-this appeal by special leave is directed
against the judgment of the high companyrt of delhi dated 21st
october 1975 by which the high companyrt set aside the order of
the magistrate discharging the appellant and directed his
commitment to the companyrt of session. the facts of the case have been detailed in the judgment of
the high companyrt and that of the trial companyrt and it is number
necessary for us to repeat the same all over again. it will
be enumbergh to say that the companyplainant pratap bhanu prakash
singh purchased 27000 shares of rohtas industries which are
entrusted to the appellant against a loan of rs. 1.82 lacs
advanced by the appellant. accordingly the allegation was
made in the companyplaint that the appellant companymitted a breach
of trust of the amount companyered by the shares by selling them
against express directions of the companyplainant.the
allegations were denied by the appellant who put forward a
plea that there was numberentrustment and that the shares were
pi iced in the hands of the appellant as security and
therefore the question of breach of trust did number arise. in
view of the allegations and companynter allegations more by the
parties we are number inclined to go into the merits of the
case particularly when we propose to uphold the order of the
high companyrt directing companymitment of the appellant to the
court of session. any observations which may be made by us
on merits are likely to prejudice either party at the trial
and therefore we refrain from going into merits at this
stage. we are however satisfied that having regard to the
reasons given by the high companyrt it cannumber be said that the
high companyrt was in error in exercising its discretion by
setting aside the order of discharge and directing
commitment to the companyrt of session. it appears that the appellant was tried by the trial
magistrate who after entering into pros and company of the
case found that numberprima facie case was established and he
accordingly discharged the appellant by his order dated 28-
10-1971. he companyplainant unsuccessfully filed a revision
against this order before the sessions judge delhi who
affirmed the order of the magistrate. ultimately the matter
came up in revision before the high companyrt which after going
through facts and circumstances of the case found that a
prima facie case for companymitment was made out and set aside
the order of discharge passed
by the magistrate and upheld by the sessions judge and
directed that the appellant be companymitted to the companyrt of
session. hence this appeal by special leave before us. two points were argued by mr. ashoke sen the leaned companynsel
for the appellant. in the first place it was urged that
having regard to the admitted facts and circumstances of the
case numberprima facie case against the accused was made out
and the trial magistrate was therefore justified in
discharging the appellant and the high companyrt exceeded its
jurisdiction in reversing the order of discharge and di-
recting companymitment. for the reasons that we have already
given it is number possible for us to hold that the order of
the high companyrt suffers high companyrt suffers from the infirmity
pointed out. the high companyrt has arrived at a finding of
fact that a prima.facie case was made out for directing
commitment to the companyrt of session and this companyrt would number
numbermally interfere with the discretion exercised by the high
court. we would like to point out that under sec. 213 sub-
cl.  2  of the companye of criminal procedure 1898  hereinafter
referred to as the 1898 companye  a magistrate can discharge
the accused if he finds that there are numbersufficient grounds
for companymitting the accused. it is obvious that the high
court has applied its mind to the facts and circumstances of
the case and it is number for this companyrt in appeal by special
leave to go into the sufficiency or insufficiency of the
material before the magistrate which may afford a
justification for passing an order of discharge. in these
circumstances the first argument put forward by the learned
counsel for the appellant is overruled and we refrain from
saying anything more on this aspect. the second argument of mr. ashoke was that even if the high
court was right in directing companymitment by setting aside
the order of discharge the position will be that by virtue
of a legal fiction the companymitment proceedings which
culminated in the discharge of the appellant would revive so
as to attract the operation of the companye of criminal
procedure 1973  hereinafter referred to as the 1973 companye
as a result of which the case against the appellant would
cease to be one which would be exclusively triable by the
sessions companyrt and therefore the magistrate would be
competent to try the case himself under the 1973 companye. in
order to appreciate the argument advanced by the learned
counsel for the appellant it may be necessary to extract
the relevant portion of the- 1973 companye. the relevant
section 484 runs thus -
484 1  the companye of criminal procedure 1898
is hereby repealed  2  numberwithstanding such
repeal
 a  if immediately before the ate on which a
code companyes into force there is any appeal
application trial inquiry or investigation
pending then  such appeal application
trial inquiry or investigation shall be
disposed of companytinued held or made as the
case may be in accordance with the
provisions of the c de of criminal procedure
1898 as in force immediately before such
commence-
ment  hereinafter referred to as the old
code  as if this companye had number companye into
force
provided that every inquiry under chapter
xviii of the old companye which is pending at the
commencement of this companye shall be dealt with
and disposed of in accordance with the
provisions of this companye. the first part of this section clearly excludes the
application of the 1973 companye to any appeal application
trial inquiry etc. pending at the time when the 1973 companye
comes into force. the provisio to sec. 484 1   2  however
carves out an exception to the general rule companytained in
section 484 2   a  and provides that where a companymitment
inquiry is pending at the companymencement of the 1973 companye it
is to be governed by the 1973 companye and number the 1898 companye. it was thus argued that the moment the order of discharge
passed by the magistrate was set aside the companymitment
inquiry revived and would be deemed to be pending on the
date on which the order of the high companyrt was passed that is
to say 21-10-1975 and thereafter the inquiry would have to
be regulated by the provisions of the 1973 companye. it was
argued that under the 1973 companye a case under section 409 is
number exclusively triable by sessions companyrt but is triable by
a first class magistrate and therefore there would be no
question of companymitment of the case to the companyrt of session
but the magistrate would have to try the case himself as he
was companypetent to do so being a magistrate of the first
class. we have examined this argument carefully but we are
unable to accede to the same. the high companyrt has number passed
any order to the effect that the companymitment inquiry was to
be revived but has in absolutely clear and unequivocal
terms ordered that the respondent shall stand companymitted
to the companyrt of session under sec. 409 view of the order
passed by the high companyrt there is numberquestion of any
inquiry being received. moreover it would appear from the
perusal of sec. 437 of the 1898 companye that the revisional
court in hearing a revision against an order of discharge
passed the magistrate may direct companymitment without any in-
quiry at all or he may direct a fresh inquiry. in this
connection the relevant portion of section 437 of the .898
code runs as follows -
when on examining the record of any case
under s. 435 or otherwise the sessions judge
or district magistrate companysiders that such
case is triable exclusively by the companyrt of
session and that an accused person has been
improperly discharged by the inferior companyrt
the sessions judge or district magistrate may
cause him to be arrested and may thereupon
instead of directing t fresh inquiry order him
to be companymitted for trial upon tie matter of
which he has been in the opinion of the
sessions judge or district magistrate
improperly discharged. it therefore manifestly clear that there are two companyrses
open to the revisional companyrt  1  either to set aside the
order of discharge and direct a fresh inquiry to be made
under section 436 in which
case the inquiry will automatically revive or  2  that
instead of directing any fresh inquiry pass an order
committing the accused for trial to the companyrt of session. an order of the second category amounts to an order of
commitment and there is numbernecessity of any further inquiry
at all. in the instant case as the high companyrt did number
choose to order any further inquiry but directed that the
accused will stand companymitted to the companyrt of session the
question of revival of the inquiry does number arise at all. indeed if the high companyrt would have directed further
inquiry into the matter then the matter would have gone back
to the magistrate and the original inquiry would have
revived in terms of the order of the high companyrt. in that
case numberdoubt the 1973 companye may have applied.


civil appellate jurisdiction civil appeals number. 1937 and
1938 of 1972.
appeals by special leave from the judgment and order dated
1st september 1971 of the andhra pradesh high companyrt at
hyderabad in writ appeals number. 689 of 1970 and 38 of 1971.

l. sanghi and s. p. nayar for the appellant. mrs. shyamla pappu and jramamurthi for respondent number. 1-15 17-22  in c. a. 1937/72  and for the respondent  in

a. 1938/72

ramamurthi for the interveners  in c.a. 1937 of 1972 . the judgment of the companyrt was delivered by-
sarkaria j.-these appeals by special leave are directed
against two inter-linked judgments of the high companyrt of
andhra pradesh. it will be companyvenient to dispose them of by
this companymon judgment. respondents 1 to 9 in civil appeal number 1937 of 1972 made a
petition  w. p. 1145 of 1969  under article 226 of the
constitution in the high companyrt for the issue of a writ of
mandamus directing the present appellants  the general
manager south central railway and the secretary railway
board  to fix the inter-se seniority of the writ petitioners
as per original proceedings dated october 16 1952 of the
railway board and to further direct them number to give effect
to the subsequent proceedings dated numberember 2 .1957 and
january 13 1961 of the board issued by way of
modification and clarification of its earlier proceedings
of 1952.
during the last world war there was acute shortage of
foodgrains and other necessaries of life. at the suggestion
of b. n. rau companymittee. grain shops for the supply of
foodgrains at companyt price to its employees were opened by the
indian railways on an extensive scale throughout the
country. staff for this temporary grain-shop companyplex was
drawn from three different sources

temporary employees who on being
selected through the joint selection
commission or staff selection board were
initially appointed in the permanent de-
partments and were there after transferred to
the grain shop department. temporary employees selected by the
selection board or the selection companymission
for permanent departments but posted
straightaway in the grain shop department
without being first appointed in the
department for which they were originally
selected and

temporary employees directly recruited
by the deputy general managers to the grain
shop department from the open market.-
respondents 1 to 9 in this appeal belong to
category  iii . after the emergency was over on the
recommendation of a high powered companymittee it
was decided to gradually wind up the grain
shop department and to absorb its staff in the
permanent departments of the railway for
this purpose the railway board took several
policy decisions companymencing from august 24
1948. of these the first which is relevant
as furnishing the background of the decisions
in question is dated february 3 1949  exh. p . whereby the temporary grain shop staff
was to be grouped as under
 a  those who were recruited prior to and
were in service on september 15 1945. and
 b  those who were recruited on or after
september 15 1945.
with regard to group  a  it was directed
numberage restrictions will apply in
considering such employees for absorption in
other departments but the minimum educational
qualification should number be relaxed
15-m852sup ci/74
there is however numberobjection to the staff
concerned being permitted to apply to the
railway service companymission for employment in
posts advertised by them in which case for
the purpose of the maximum age limit they can
deduct the period of their companytinuous
temporary service in the grainshop department
from their present age. numberemployee should be
retrenched unless he refused to accept the
alternative employment that is offered to him
by the railway administration. as regards  b  it was laid down
although numberundertaking has been given about
their companytinued retention in service it is
the boards desire that these staff also
should be absorbed against suitable vacancies
on the same lines as the staff recruited
before this date subject to the companydition
that neither the restrictions required number the
educational qualifications required number the
restrictions regarding the maximum age limit
will be relaxed except in the latter case to
the extent of their companytinuous temporary
service rendered by them of the railway. such
staff will however be companysidered for
absorption only after the staff referred to in
item  a  above have been offered
employment. in all cases other things being equal
due companysideration should be given to the
length of service of the staff companycerned. this order further provided
 6  permanent or temporary staff of other de-
partments on loan to the grainshop department
should be returned to their parent departments
if unfilled posts exist and if this is found
to be administratively companyvenient so as to
reduce the number of grainshop staff who be
surplus immediately
 7
 emphasis supplied
next in importance is the railway boards
order number e. 48. rei 1/3 of october 16 1952
issued in supersess on its previous orders. this order is the sheet-anchor of the
respondents case. its material part runs as
under
 in supersession of the boards
orders companytained in item  iii  of their
letter number e. 48. rei/1/3a of 6-7-1949
laying down the method for the absorption and
fixation of pay of ex-grain shop staff who
were officiating in higher grades but were
absorbed in other departments in lower grades
it has number been decided that the pay of all
such staff as well as those appointed in the
intermediate grades irrespective of the fact
that they were absorbed either before or after
6-7-1949 should be fixed on their absorption
in the regular departments in accordance with
the instructions companytained in their letter number
e. 45 re. 13/3 dated 27-7-46 and the staff
concerned paid the arrears due on this
account. it has further been decided by the board
that such staff should number get any
preferential treatment other than for
fixation of pay and obtaining alternative
employment i.e. they should number be given
seniority for purposes of companyfirmation by
virtue of their pay being fixed at a higher
stage in the absorbing department over
unconfirmed men in that department who had
longer service but whose pay was less. they
should be given only such seniority which they
would have got had they been absorbed in the
absorbing department right from the beginning
of service. on the representation made by the national federation of
indian railwaymen the railway board reconsidered its
decision of october 16 1952 regarding companynting of past
temporary service for the purpose of fixing seniority of
open market recruits. this reconsidered decision was put
in the companymunication dated numberember 2 1957 whereby the
railway board in partial modification of its proceeding of
october 16 1952 directed that the seniority of temporary
grainshop staff companysequent on their absorption in the
absorbing departments should be regulated on the basis of
their date of their actual absorption in those departments
and number on the basis as if they had been absorbed in those
departments in right from the beginning of service. on january 13 1961 the board issued a clarification that
the seniority of the grain-shop staff of category  iii
should be fixed from the date of their absorption in a
permanent department irrespective of their length of
service in the grain-shop department. with regard to
category  i  it was laid down that temporary staff who were
initially appointed in the permanent departments and were
then transferred to the grain shop department would number have
their seniority affected by their transfer to the grain shop
department. it was further stated that seniority of
category  ii  should be fixed with reference to the date of
their joining the grain shop department. the validity of the above decisions dated numberember 2 1957
and january 13 1961 of the board has been questioned on the
ground that they discriminate against the employees of
category  iii  and as such violate the guarantee of equal
treatment enshrined in articles 14 and 16 of the
constitution. mainly relying upon two single bench judgments-one of the
madras high companyrt in w.p. number 31 10 of 1965 and the other of
the bombay high companyrt in misc. petition number 321 of 1964
decided on march 15 1967-the learned single judge who tried
the writ petition accepted the companytentions of respondents 1
to 9 and struck down the impugned proceedings. aggrieved by that judgment the railway carried an appeal
under clause 15 of the letters patent to the division bench
of the high companyrt which dismissed the same with these
observations
what has been held by their lordships in
roshanlals case applies with equal force to
the case on hand. here also there was already
an integrated service namely the grain shop
department service and all the members of this
service were absorbed in different
departments and after absorption there
cannumber be a further dividing line between
direct recruits drawn from open market and
those appointed through selection boards as
that would clearly be a denial of equal
opportunity to persons similarly situated in
the matter of further promotion on the basis
of their seniority among other grounds. since the absorption of direct recruits and
others is from the integrated grain shop
department numberdiscrimination can be shown on
the ground of differences that existed between
various sources prior to the recruitment to
the grain shop department for the purpose of
fixing seniority. it is against this judgment that civil appeal number 1937 of
1972 has been preferred. mr. g. l. sanghi learned companynsel for the appellants has
raised two preliminary objections. the first is that the
writ petition was filed 8 to 11 years after the issue of the
impugned decisions and as such was liable to be dismissed
on the score of latches alone. the second is that the writ petitioners did number implead
about 120 employees who were likely to be affected by the
decision in this case. those employees proceeds the
argument were necessary parties and their number-joinder is
fatal to the petition. in support of this companytention
counsel has cited padam singh jhina v. union of india and
ors  1
neither of these objections appears to be tenable. though the plea of latches was taken in the companynter-
affidavit filed on behalf of the railway before the high
court yet it appears that the point was number canvassed at
the time of arguments either before the learned single
judge or the division bench in the letters patent appeal.-
the appellants therefore cannumber be permitted to resurrect in
this companyrt the same objection which they bad apparently
abandoned in the high companyrt. as regards the second objection it is to be numbered that the
decisions of the railway board impugned in the writ petition
contain administrative rules of general application
regulating absorption in permanent departments fixation of
seniority pay etc. of the employees of the erstwhile grain
shop departments. the respondents-petitioners are
impeaching the validity of those policy decisions on the
ground of their being violative of articles 14 and 16 of the
constitution. the proceedings ate analogous to those in
which the companystitutionality of a statutory rule regulating
seniority of government servants is assailed. in such
proceedings the. necessary parties to be impleaded are those
against whom the relief is sought and in whose absence no
effective decision can be rendered by the companyrt in the
present case the relief is claimed only against the
railway which has been impleaded through its
representative. numberlist or

c.a. number405 of 1967 decided by supreme companyrt on 14-8-
1967.
order fixing seniority of the petitioners vis-a-vis
particular individuals pursuant to the impugned decisions
is being challenged. the employees who were likely to be
affected as a result of the readjustment of the petitioners
seniority in accordance with the principles laid down in the
boards decision of october 16 1952 were at the most
proper parties and number necessary parties and their number-
joinder companyld number be fatal to the writ petition. the ratio of this companyrts decision in padam singh jhinas
case  supra  is number applicable to the facts of the instant
case. jhinas companytention was that he had been mala fide
reduced in the list of seniority from the 5th to the 7th
place and that one prem sagar had been placed above him in
contravention of the rules. the validity or vires of the
rules was number in question. all the persons whose placement
in the seniority list was companytroverted were number impleaded
and as such had numberopportunity of replying to the case set
up by jhina and in the absence of persons directly
affected it was number possible for the companyrt to adjudicate
the matter. the ratio of jhinas case does number help the
appellant. the cases relevant for our purpose are b.
gopalaiah and ors. v. government of andhra pradesh  1  j.

sachdev and ors. v. reserve bank of india new delhi  2
and mohan chandra joshi v. union of india and ors  3 . we
approve of the rule enunciated on this point in those cases. on merits mr. sanghi has by and large adopted the
reasoning of the division bench of the madras high companyrt in
general manager southern railway v. venkataraman  4  which
had in letters patent appeal reversed the judgment of the
single judge relied upon in the instant case by the andhra
pradesh high companyrt. it is companytended that the standards qualifications for
eligibility and the companyditions governing the employees
recruited through the staff selection board or joint service
commission from sources  i  and  ii  were different from
those of open-market recruits. according to the learned
counsel the personnel drawn from source  iii  were
temporarily engaged as an ad hoc measure  without regard
for age and educational qualifications to meet the
emergency and companyld number therefore be companypared and equated
with the employees of requisite qualifications belonging to
categories  i  and  ii  recruited or selected in the numbermal
way through selection boards for regular departments. the
point pressed into argument is that while employees of
categories  i  and  ii  had the assurances or right as a
part of their service companyditions that on the abolition of
the grain shop department they would be absorbed and
assigned their due seniority in the permanent department in
or for which they were initially appointed or selected no
such right or assurance existed in the case of ad hoc
recruits belonging to category  iii  who were given the
benefit of their services in the

a. 1. r. 1969 a. p. 204.  2  ilr 1973  ii delhi 322.

civil writ number 650 of 1970 decided by delhi high companyrt.  4  1970 ii labour law journal 76.
grain shop department only as a matter of grace
subsequently on absorption in permanent departments. it is number companyrect to say that all the employees of category

were sub-standard in educational qualifications. several persons in that category satisfied the educational
numberms. for instance sidhanti respondent was f.a. while
the minimum educational qualification requisite for the post
of a companymercial clerk was matriculation or equivalent
examination. though sufficient data has number been brought on
the record on the basis of which a firm finding can be
given yet three companyies of numberices  uncertified  have been
filed by the respondents which indicate that at some stage
educational qualifications had been relaxed to meet the
extraordinary demand for personnel to man the posts of
ticket companylectors and guards etc. regarding education all
that was required of the candidates was a working knumberledge
of english. it was quite possible that in categories  ii
and  iii  also there were some whose qualifications were
number in accord with the prescribed numberms. educational
qualifications being less than the requisite minimum was
therefore number a feature peculiar to category  iii  only. indeed it is number the case of the appellants that the
classification of the grain-shop staff envisaged in the
impugned proceedings for the purpose of absorption and
seniority in permanent departments has been made on the
basis of educational qualifications. the fundamental right of equality means that persons in like
situation under like circumstances are entitled to be
treated alike. the companystitutional companye of equality and
equal opportunity observed this companyrt in state of jammu
and kashmir v. triloki nath khosla and others . . is a
charter for equals. so long as employees similarly
circumstanced in the same class of service are treated
alike-the question of hostile discrimination does number
arise. the equality of opportunity for purposes of
seniority promotion and like matters of employment is
available only for persons who fall substantially within
the same class or unit of service. the guarantee of
equality is number applicable as between members of distinct
and different classes of the service. the companystitution does
number companymand that in all matters of employment absolute
symmetry be maintained. a wooden equality as between all
classes of employees regardless of qualifications kind of
jobs nature of responsibility and performance of the
employees is number intended number is it practicable if the
administration is to run. indeed the maintenance of such a
classless and undiscerning equality where in reality
glaring inequalities and intelligible differential exist
will deprive the guarantee of its practical companytent. broad
classification based on reason executive pragmatism and
experience having a direct relation with the achievement of
efficiency in administration is permissible. that is to
say reasonable classification according to some principle
to recognise intelligible inequalities or to avoid or
correct inequalities

civil appeal number 2134 of 1972 decided on 26-9-1973.
is allowed but number miniclassification which creates
inequality among the similarly circumstanced members of the
same class or group. in the light of the above principles it will be seen that
the pivotal question in the present companytroversy is were the
three categories after their transfer or direct
recruitments as the case may be to the grain shop
department fused into a single integrated class having the
same companyditions of service ?. or did they companytinue
dissimilarly-as they started-in three separate companypartments
while there is ground to hold that category  i  never lost
its distinctive birth-marks numbermaterial has been placed
before us on the basis of which it companyld be said that
categories  ii  and  iii  after their direct recruitment
had number companypletely lost their genetic peculiarities in the
common unified stream of grain-shop service. the special feature of personnel of category  i  was that
they had been initially appointed against substantive
vacancies in permanent departments of the railway. they did
number companye to the temporary grain shop department of their own
volition or option but by transfer or on loan under
peremptory orders of their superior officers. they companyld
number be placed in a worse position or treated differently in
the matter of tenure than their companyleagues who fortuitously
continued in the permanent departments. it was but fair and
reasonable that on the abolition of the grain shop
department they should be sent back to the permanent
departments whence they came and given credit of their
initial service in those departments for the purpose of
permanent absorption and seniority. even from the deficient
material placed before us it is clear that personnel from
source  i  have always been treated as a distinct unit
having a status skin to that of persons on loan or transfers
for a period from a permanent department to a temporary
department. companysequent upon their decision to gradually
wind up the grain shop department the first step taken by
the railway board as per para 6 of their companymunication dated
february 3 1949  reproduced in a foregoing part of this
judgment  was to return all temporary or permanent staff
that had companye on loan to the grain shops to their parent
departments. it is numbere-worthy that the directions in para 6 of the company-
munication dated february 3 1949 were number superseded by
the proceedings dated october 16 1952 which are the
foundation of the respondents claim. clause  1   i  of the
impugned companymunication dated january 13 1961 is numbermore
than a reiteration in an amplified form of the direction
in para 6 of the companymunication of february 3 1949. the
direction of october 16 1952 regarding fixation of pay and
seniority of the ex grain shop staff on their absorption in
regular departments were obscure and vague on two points. firstly it was number clear whether the ex grain shop staff
governed by those directions included the temporary staff
who bad been initially appointed in permanent departments
and were there-after transferred for some period to the
grain-shop department. secondly the beginning of the
service in the last sentence of those directions was
susceptible of two companystructions. in the restricted sense
it companyld mean beginning
of the service in the grain-shop department. in the wider
sense it would include in the case of transferees to the
grain-shop the beginning of their service in the permanent
department whence they came. clause  1   i of the
communication of january 13 1961 clarified those aspects
the differential treatment of the personnel belonging to
category i  for the purpose of fixing seniority envisaged
in clause  1  i  of the companymunication of january 13 1961
thus rests ona soundrational basis and does number offend
articles 14 and 16 of the companystitution. to this extent for reasons stated above we endorse the
view taken by the division bench of the madras high companyrt in
general manager southern railway madras v. t. k.
venkataraman supra . but what has been said above in regard to category  i  does
number hold good in the case of the other two categories. excepting that they were recruited by two different methods
in all other respects these two categories were similarly
situated. the mere fact that the names of persons in
category  ii  were borne on a list of candidates prepared by
the selection board for recruitment to regular departments
did number give them a right to preferential treatment qua
those in category  iii  in the matter of absorption and
seniority in such departments. we have perused paras 302
303 and 304 of the indian railway establishment manual
chapter iii 2nd edition relied upon by mr. sanghi. these
are number statutory provisions. even so there is numberhing in
them to show that a person selected for a permanent de-
partment by the selection board or companymission gets a right
to be appointed merely because of such selection and
placement of his name on the select-list. he gets only a
spes i.e. bare chance of appointment and that too if the
appointing authority so desires arid a vacancy is available
for him. all that the said provisions say in substance is
that after their appointment their inter se seniority will
be fixed with reference to their positions in the merit list
prepared by the selection board. despite repeated queries the appellants have number placed any
document or material number referred to any rule policy
decision or other official record to support their
contentions that even after their recruitment to grain-shop
department categories  ii  and  iii  companytinued as distinct
entities having different companyditions of service. appellants failure to furnish such material is sought to be
justified on the ground that the burden of proving that the
impugned proceedings suffer from the vice of discrimination
was on the respondents. true that the initial onus of showing that the proceeding
of 1957 and 1961 in question were discriminatory and as
such violative of articles 14 and 16 of the companystitution
was on the respondents but in the peculiar circumstances of
the case such onus had been prima facie discharged by them. their claim to relief is founded on the railway boards own
decision of october 16 1952 which proceeds on an in-built
postulate and implied admission that all the personnel
requited to the grain-shop department were members of the
same class or unit of service and as such entitled alike to
the fixation of their
seniority with reference to the beginning of their
service. it was then the turn of the board to show that
the inference arising from its admission or treatment of
all persons directly recruited as members of one unified
service of the grain shop department was wrong. companyscious of the necessity of resolving the problem in a
just practical manner avoiding a doctrinaire approach we
wanted to have some idea of the nature and magnitude of the
impact which the decision of this case might indirectly or
incidentally have on the employees who during the
interregnums got promoted or companyfirmed on the basis of the
impugned directions. we therefore indicated at the outset
that as a matter of companycession we would be disposed to
allow the appellants to produce even at that stage after
due numberice to the other side documentary evidence or
material if any in their possession or companytrol which
would help substantiate their companytention. the opportunity
was number availed of by the appellants there is therefore
numberescape from the companyclusion that after their direct
recruitment to the grain shop department the personnel
coming from sources  ii  and  iii  had shed their genetic
peculiarities and become members of the same class or unit
governed by the same companyditions of service. for the
purposes of absorption seniority promotion etc. in regular
departments therefore they were entitled to be treated
alike. the impugned directions of 1957 and 1961 in so far as they
pertain to categories  ii  and  iii  are hit by the rule in
roshan lal tandon v. union of india  1  according to which
once the persons companying or recruited to the service from
two different sources-in that case promotees and direct
recruits-are absorbed into one integrated class with
identical service companyditions they cannumber be discriminated
against with reference to the original source forthe
purposes of further promotion to the higher grade. what was
said about further promotion in roshan lal tandons case
 supra  is equally applicable to absorption and seniority in
the instant case. for the foregoing reasons we would hold that the
discrimination envisaged in the impugned directions dated
numberember 2 1957 and january 13 1961 excepting in so far
as they pertain to personnel of category  i  is arbitrary
and violative of articles 14 and 16 of the companystitution. in the result we dismiss the appeal with companyts throughout
and affirm the decision of the high companyrt except to the
extent indicated above.  1  1968 1 s.c. r. 185.
in civil appeal 1938 of 1972 arising out of writ petition
number 952 of 1966 respondent manickyam was originally
employed as a companymercial clerk on december 4 1944 in the
southern railway and was posted at rayapuram. one
balasubramaniam was then a clerk in the grain shop
department in bezwada district and posted at gudur. in
1950 manickyam and balasubramaniam made joint application
for mutual transfer. this application was allowed and in
consequence manickyam and balasubramaniam exchanged places. manickyam was therefore transferred and posted on august 10
1950 at gudur and was given the 445th place in the order of
seniority among the clerks in the grain shop department of
bezwada district. this was the rank and position in the
seniority formerly held by balasubramaniam. subsequently
as a result of the impugned decisions taken by the railway
board on numberember 2 1957 and january 13 1961 manickyam
was relegated to a lower position in the seniority list of
commercial clerks. he appealed against this fixation of
seniority to the railway authorities who dismissed the same. manickyam then moved the high companyrt under article 226 of the
constitution for bringing up and quashing the order dated
may 24 1966 of the divisional companymercial superintendent
southern railway vijawada in so far as it related to the
promotion of respondents 2 to 8 to the senior time scale of
rs. 205-280 and directing respondent number 1  divisional
superintendent southern railway vijayawada  to promote the
petitioner to the said scale giving him a place in the
seniority immediately above respondents 2 to 8 and to pass
such further order as may be necessary. in the companynter-affidavit filed by the appellant it was
averred that manickyam and balasubramaniam were mutually
transferred to bezwada district and rayapuram district and
assigned each others places i.e. 445th and 601 st places in
the seniority among the companymercial clerks in bezwada
district and rayapuram district respectively on the basis
of an agreement between them. it was further stated that on
july 18 1955 manickyam made an application requesting that
he should be given all those benefits which had been made
available to ex grain shop clerks. this application was
declined be cause the petitioner had himself accepted his
transfer to bezwada on the companydition of getting 445th place
in the seniority. it was however admitted that in
pursuance of the railway boards orders dated numberember 2
1957  the seniority of all grain-shop clerks working as
commercial clerks was revised in 1965 and on such revision
manickyams seniority was also revised as he had companye to
vijayawada district in mutual exchange with grain shop
employee. it was
added that he was given what he really deserved under the
rules and agreement. from the pleadings and the companytentions canvassed it was
clear that manickyams grievance was against the validity of
the railway boards orders dated numberember 2 1957 and
january 13 1961 on the basis of which his seniority was in
fact revised and downgraded. the learned single judge who
tried the writ petition found that since the classification
envisaged in the railway boards orders dated numberember 2
1957 and january 13 1961 were discriminatory arbitrary and
unconstitutional the impugned orders also whereby
manickyams seniority was revised down were invalid. in the
result the writ petition was allowed and a writ of mandamus
directing the appellant to give manickyam 92nd place
immediately above pothuraju number 93 and to the then
respondents 2 to 8 from 96th to 195th places in the list of
seniority published as on december 31 1958 was issued. it
was farther directed if as a result of the restoration of
the petitioners seniority as per the above order he is
entitled to any promotion to a higher scale of pay i direct
that the first respondent should give him the benefit of
such promotion. the letters patent appeal preferred by the
divisional superintendent of the railway  the respondent
was dismissed by the division bench of the high companyrt. hence this appeal by the railway. learned companynsel for the appellant raised the same
preliminary objections and canvassed the same companytentions
which were advanced in civil appeal 1937 of 1972. for
reasons given in that appeal we would overrule the
objections negative the companytentions and hold that since the
questioned directions of numberember 2 1957 and january 13
1961 in so far as they related to the employees of ex-grain
shop recruited from sources  ii  and  iii  were violative of
article 16 of the companystitution the impugned order whereby
manickyams seniority was revised and lowered in pursuance
of those directions was also invalid. a mandamus shall therefore issue directing the appellant to
restore and refix the place of manickyam in the list of
seniority as on december 31 1958 in accordance with the
railway boards directions of october 16 1952 and taking
into account other relevant companysiderations but ignumbering the
directions companytained in the boards companymunication of
numberember 2 1957 and january 13 1961 to the extent they
have been held to be unconstitutional and invalid.