Input:
Civil Appeal No. 111(N) of 1981.
From the Judgment and Order dated 21.10.1980 of the Madras High Court in Application No. 2875 of 1980.
Abdul Kareem, A.T.M. Sampath and P.N. Ramalingam for the Appellant.
section Govind Swaminathan, Rajendra Chowdhary, N.S. Sivam and K. Madhavan for the Respondents.
T.S. Krishnamoorthi Iyer, section Balakrishnan and M.K.D. Namboodiri for the Intervener.
A question which arose for decision was whether the appellant should discharge the mortgage of the suit property created by the respondent in favour of the South Indian Bank.
The High Court held that the appellant was liable to discharge the mortgage and directed her to deposit in Court a sum of Rs.3,50,000 with interest for the purpose.
The appellant paid the amount direct to the mortgagee.
The High Court refused to accept the payment made directly to the mortgagee as due compliance with its decree and against that order of the High Court the appellant preferred civil Ap peals Nos.
1993 1994 of 1977.
This Court disposed of the said appeals by the following order dated 29 November, 1979: "We direct that a decree be passed that the plaintiff Appellant do deposit within six months from today the entire sum of Rs.3,45,000 together with interest due upto date at the rate of 11 per cent, together with an undertaking that she would give up all her rights under the mortgage decree passed in her favour in C.S. No. 154 of 1968 except to the extent of the amount actually paid to the South Indian Bank for taking the assignment.
If these two 822 conditions are fulfilled, the appeals will stand allowed and a final decree for specific performance passed.
In the event of non com pliance with either of these conditions the appeals will stand dismissed with costs.
" Purporting to comply with the above order of this Court, the appellant deposited a sum of Rs.2,42.822.19 on 11 April, 1980 in the High Court with the undertaking to give up all her rights decreed in C.S. No, 15 of 1968 and filed C.M.P Nos.
2424 and 2425 of 1980 in the High Court for a declara tion that the payment as mentioned above was in compliance with the order of this Court and she claimed a set off of the amount of Rs.5,96,687.19 paid by her earlier to the South Indian Bank which she was entitled to recover from the respondent in accordance with the second condition of the order of this Court dated 29 November, 1979.
The time limit fixed for fulfilling the two conditions set out in this Court 's order dated 20 November, 1979 having fallen on 29 May, 1980 and the High Court not having passed orders on her C.M.Ps.
2424 2425 of 1980 till then, she paid into the High Court a sum of Rs.6,02,000 on 29 May, 1980 by cheque purporting to comply with the first condition set out in this Court 's order aforesaid.
C.M.Ps.
2424 and 2425 of 1980 filed by the appel lant in the High Court were dismissed by a Single Judge by an order dated 6 June, 1980 against which the appellant preferred Petitions for Special Leave to Appeal Nos.
947 48 of 1981.
The appellant also filed another C.M.P. No. 2875 of 1980 in the High Court for a declaration that she had com plied with the aforesaid order of this Court dated 29 Novem ber.
1979 which was dismissed by the High Court.
Civil Appeal No. 111 of 1981 has been preferred against the judg ment and order of the High Court in C.M.P. No. 2875 of 1980.
The only question decided against the appellant by the High Court in C.M.P. No. 2875 of 1980 was with regard to the deposit of the amount stipulated in the first condition of the order of this Court dated 29 November, 1979.
The crucial issue was whether the payment made by the appellant on 29 May, 1980 by cheque of the amount of Rs.6,02,009 together with the amount deposited earlier on 11 April, 1980 was in due compliance of the first condition of this Court 's Order dated 29 November, 1979.
The High Court found that the simple delivery of the cheque on 29 May, 1980 could not be deemed to be deposit of the specified sum of 29 May, 1980 in satisfaction of the order of this Court when the amount of the cheque had been realised only on 16 June, 1980.
The High Court held that the appellant was bound to 823 comply with the Original Side rules of the High Court which prescribed the procedure to be followed in depositing the money in Court, and in particular, Order 31, rules 1 to 6 thereof which were aimed at securing the deposit of the money in the Reserve Bank of India to the credit of a par ticular proceeding on or before the specified date.
Accord ingly, the High Court refused to grant the declaration that the appellant had complied with the order of this Court dated 29 November, 1979.
It is contended before us on behalf of the appellant that the cheque for Rs.6,02,000 was tendered in Court on 29 May, 1980 and that it was duly honoured by the Bank and money was realised under the cheque, and therefore it must be taken that payment had been effected by the appellant on 29 May, 1980 within the time stipulated by this Court in its order dated 29 November, 1979.
In Commissioner of Income Tax, Bombay South, Bombay vs Messrs Ogale Glass Works Ltd. Ogale Wadi; , it was laid down by this Court that payment by cheque realised subsequently on the cheque being honoured and encashed relates back to the date of the receipt of the cheque, and in law the date of payment is the date of delivery of the cheque.
Payment by cheque is an ordinary incident of present day life, whether commercial or private, and unless it is specifically mentioned that payment must be in cash there is no reason why payment by cheque should not be taken to be due payment if the cheque is subsequently encashed in the ordinary course.
There is nothing in the order of this Court providing that the depos it by the appellant was to be in cash.
The terms of the order dated 29 November, 1979 are conclusive in this respect and it is the intent of that order which will determine whether payment by cheque within the period stipulated in that order was excluded as a mode in satisfaction of the terms of that order.
The time for payment is governed by the order of this Court.
It is alleged on behalf of the respondent that there was no money on the date of delivery of the cheque to support payment of it and that it was subsequently when arrangements were made that the cheque was realised.
Now, the High Court has not found that if the cheque was presented for encash ment on the date it was delivered the cheque would not have been encashed.
There is nothing to suggest also that the cheque was not honoured in due course and that the Bank had at any time declined to honour it for want of funds in the ordinary course.
In any event, there is nothing to suggest that, under the arrangements made for payment of the cheque, even if it had been encashed on the date it was delivered the cheque would not have been encashed.
There 824 is no finding by the High Court that on 29 May, 1980 the cheque would not have been realised.
That being so, the question whether the appellant had wrongly stated that her counsel had offered to pay cash to the High Court office on 29 May, 1980 ceases to be relevant.
We also see no substance in the objection taken before the High Court that in the letter dated 29 May, 1980 addressed by counsel for the appellant forwarding the cheque for Rs.6,02,000 there was a request for the return of the cheque in case it was found that the appellant was entitled to the set off claimed by her.
The application of the appellant claiming adjustment was pending in Court, and no conclusion can be drawn against her on the ground that she had requested a return of the cheque in the event of the adjustment being allowed by the Court.
We are of the view that the conditions set forth in the order of this Court dated 29 November, 1979 in the facts and the circumstances of the case have been complied with by the appellant substantially and she is entitled to the benefit of that order.
The appeal is allowed, the order dated 21 October, 1980 of the High Court is set aside and the application by the appellant for a direction to the respondent to execute the sale deed in her favour is allowed.
In the circumstances of the case, there is no order as to costs.
N.V.K. Appeal allowed.

Output:
The appellant filed a civil suit in the High Court for specific performance of a contract to sell the suit property by the respondents to her.
The High Court held the appellant liable to discharge the mortgage and directed her to deposit in Court a sum of Rs.3.5 lakhs with interest for the pur pose.
The appellant paid the amount direct to the mortgagee, which the High Court refused to accept as due compliance with its decree.
The appellant preferred appeals to this Court, which were disposed of on 29th November, 1979 with the direction that the appellant was to deposit within six months from the date of the order, the entire sum of Rs.3.15 lakhs together with interest.
Purporting to comply with the aforesaid order of this Court, appellant deposited a sum of Rs.2,42,822.19 on 11 April, 7980 and filed two Civil Misc.
Petitions in the High Court for a declaration that the payment was in compliance with the order of this Court and claimed as set off of the amount of Rs.5,96,687.19 paid by her earlier to the South Indian Bank, which she was entitled to recover from the respondent.
The time limit fixed for fulfilling the two conditions set out in this Court 's order dated 29th November, 1979 having fallen on 29th May, 1980 and the High Court not having passed orders on the appellant 's two CMP 's the appel lant paid into the High Court a sum of Rs.6.02 lakhs on 29th May, 1980 by cheque purporting to comply with the first condition of this Court 's order.
820 The High Court dismissed the appellant 's CMP and refused to grant the declaration that the appellant had complied with the order of this Court dated 29th November.
1979, on the ground that the appellant was bound to comply with the Original Side Rules of the High Court which prescribed the procedure to be followed in depositing money into Court particularly Order XXXI Rules 1 to 6 which aimed at securing the deposit of the money in the Reserve Bank of India to the credit of a particular proceeding, on or before the speci fied date.
In the appeal to this Court, on the question; whether payment made by the appellant on 29th May, 1980 by cheque of the amount of Rs.6.02 lakhs together with the amount depos ited earlier on 11th May, 1980 was in due compliance with this Court 's order dated 29th November, 1979.
Allowing the Appeal and setting aside the order of the High Court, this Court HELD: 1.
Payment by cheque is an ordinary incident of present day life, whether commercial or private, and unless it is specifically mentioned that payment must be in cash there is no reason why payment by cheque should not be taken to be due payment if the cheque is subsequently encashed in the ordinary course.
[823D E] In the instant case, there is nothing in the order of this Court providing that the deposit by the appellant was to be in cash.
The terms of the order dated November 29, 1979 are conclusive in this respect and it is the intent of that order which will determine whether payment by cheque within the period stipulated in that order was excluded as a mode in satisfaction of the terms of that order.
The time for payment of governed by the order of this Court.
[823E F] 2.
Payment on the cheque being honoured and encashed relates back to the date of the receipt of the cheque, and in law the date of payment is the date of delivery of the cheque.
[823F] Commissioner of Income Tax, Bombay South, Bombay vs Messrs Ogale Glass Works Ltd. Ogale Wadi, A.I.R. 1954 S.C. 429 referred to.
In the instant case, there is nothing to suggest that the cheque was not honoured in due course and that the Bank had at any time declined to honour it for want of funds in the ordinary cause.
[823G] 821 3.
The conditions set forth in the order of this Court dated 29th November, 1979 have been complied with by the appellant substantially and she is entitled to the benefit of that order.
[824C D]


Input:
ivil Appeal Nos.
1454 63 & 1642 45 of 1981.
From the Judgment and Order dated 10.4.1981 of the Andhra Pradesh High Court in Writ Petition No. 3720 of 1979.
G. Ramaswamy, M.S Ganesh, section Murlidhar, Sanjeev Ahuja and B. Parthasarthy for the Appellants.
C. Sitaramaiya, T.V.S.N. Chari and Mrs. B. Sunita Rao for the Respondents.
The Judgment of the Court was delivered by OJHA, J.
These appeal are directed against the judgment of the Andhra Pradesh High Court dated 10th April, 1981 rendered in a batch of writ petitions, reported in M/s. Poddar Projects Ltd. (Multi Steels) vs A.P.S.E. Board, AIR 1982 Andhra Pradesh 189.
For the sake of convenience, these appeals are being decided by a common judgment.
In order to appreciate the respective submissions made by learned counsel for the parties necessary facts may be stated in brief.
The appellants are some of the mini steel plants of Andhra Pradesh.
Revised terms and conditions of electricity supply were notified by the Andhra Pradesh State Electricity Board (for short the Electricity Board) in B.P. Ms. No.690 (Coml.) on 17.9.75 to be effec 628 tive from 20 October, 1975, Subsequently, G.O. Ms. No. 832 dated 2nd November, 1977 was issued by the State Government whereby concessional tariff of 0.11 p. per unit for the period of three years commencing from 1st November, 1977 and endings with 31st October, 1980 was applied in respect of the following five consumers: 1.
Andhra Pradesh State Corporation Limited 2.
Poddar Projects Limited 3.
A.K. Corporation Limited 4.
Andhra Steels, Vishakapatnam 5.
A.K. Corporation, Vishakapatnam.
This concessional tariff was subsequently enhanced to 12.5 p. by the State Government vide G.O. Ms. No. 876 dated 26th November, 1977.
The concessional tariff referred to above, however, was not extended to M/s. Andhra Steel Corporation by the Electricity Board by passing a resolution in its meeting held on 26th November, 1977 inasmuch as the Andhra Steel Corporation had already filed a writ petition inter alia claiming that the agreement which it had entered into with the Electricity Board for availing high tension electric supply was no longer in force.
In respect of the remaining four steel plants referred to above the Electricity Board extended the concessional tariff of 12.2 p. subject to escalations and other terms and conditions of supply and fixed minimum consumption of 403.325 units/KVA.
This was done by issuing B.P. Ms. No. 78 dated 20th January, 1978.
These four mini steel plants were, however, subsequently directed by the Electricity Board vide B.P. Ms. No. 436/Coml.
dated 3rd May, 1978 to be charged at a tariff rate of 16 p. per unit instead of 12.2 p. without reference to the maximum demand charges from 1st March, 1978.
The Electricity Board also sought clarification from the State Government vide its letter No. DE (Coml.) 1205 1/76 32 dated 27 November, 1978 with regard to fixation of minimum consumption of 403.325 units/KVA and fixation of concessional tariff at 0.16 p. per unit in view of the new levy of central excise duty and in view of the increased cost of generation.
The State Government vide G.O. Ms. No. 697 dated 5th December, 1978 issued a clarification that the aforesaid G.O. Ms.
Nos. 832 and 876 did not preclude the Electricity Board from applying the normal terms and conditions of supply and prescribing the monthly minimum charges and the working out of the escalated rate from time of time.
Subsequently the State Government vide G.O. Ms. No. 146 dated 12th March, 1979 withdrew the concessional tariff contemplated by G.O. Ms. Nos. 832 and 876 referred to above.
This was done on the representation of the Electricity Board which in its turn through its B.P. Ms. No. 830 dated 2nd April, 1979 cancelled B.P.Ms.
Nos. 78 and 436 with effect from 12th March, 1979.
The State Government 629 subsequently also issued G.O. Ms. No. 10 dated 16th January., 1980 whereby it was clarified that its intention in issuing the earlier G.O. Ms. No. 697 dated 5th December, 1978 was to allow the concessional tariff rate notified in G.O. Ms. no 876 without limiting the concession by imposition of minimum consumption charges till the end of March, 1979.
The Electricity Board felt aggreived by this G.O. and requested the Government to cancel it for the reasons set out in its letter dated 28th January, 1980.
One of the grievances of the Andhra Steel Corporation in its writ petition before the High Court was that the Electricity Board while applying the concessional tariff to the other mini steel plants was not justified in refusing the said concession to it merely because it had filed a writ petition.
The action of the Electricity Board is singling it out was, according to the Andhra Steel Corporation, discriminatory and mala fide.
This plea has been reiterated before us also and is confined to the appeal preferred by the Andhra Steel Corporation.
The pleas common to all the appellants which were raise before the High Court as also before us may now be enumerated.
It has been asserted that in view of the direction issued by the State Government fixing concessional tariff for the appellants it was not open to the Electricity Board to have levied minimum charges and it was bound to supply electricity to the appellants on the concessional tariff alone as fixed by the state Government.
As regards the order of the State Government dated 5th December, 1978 which clarified that its earlier orders fixing concessional tariff did not preclude the Electricity Board from levying inter alia minimum charges it has been asserted that the said order is illegal.
In the alternative, it is asserted that if clarificatory orders could be issued by the State Government with regard to its orders fixing concessional tariff the subsequent clarification made by order dated 16th January, 1980 had to prevail over the earlier clarification dated 5th December, 1978.
The order of the State Government dated 12th March, 1979 withdrawing the concessional tariff with effect from that date had also been assailed on the ground that it was passed on the representation of the Electricity Board without giving any opportunity to the appellants to show cause against the said representation and consequently the said order was in violation of principles of natural justice.
Pleas of promissory estoppel and right based on the doctrine of legitimate expectation have also been raised.
630 As regards the submission made on behalf of the Andhra Steel Corporation about singling it out in the matter of grant of concessional tariff on the basis of the order issued by the State Government for the period ending 12th March, 1979 Shri Shanti Bhushan, learned counsel for the Electricity Board has very fairly stated that the Electricity Board would extend to the Andhra Steel Corporation also the same benefit which was extended to the other four mini steel plants in the matter of grant of concessional tariff for the said period ending 12th March, 1979.
In this view of the matter it is not now necessary to deal with this plea.
As regard the plea that in view of the direction issued by the State Government fixing concessional tariff for the appellants it was not open to the Electricity Board to have levied minimum charges as it was bound to supply electricity to the appellants on the concessional tariff alone as fixed by the State Government it was submitted by learned counsel for the appellants that not only it was specifically stated in the G.O. dated 26th November, 1977 that the directions contend there were issued under section 78A of the Act, it was accepted even by the Electricity Board to be a direction under Section 78A of the Act as is apparent from its proceedings dated 20th January, 1978.
According to learned counsel for the appellants a direction issued under Section 78A of the Act was of a compulsive nature and was binding on the Electricity Board.
The only dispute which the Electricity Board could raise was as envisaged and in the manner provided by Sections 78A(2) of the Act about the direction being a matter of policy.
The Electricity Board according to learned counsel not having taken raucous to the procedure contained in Section 78A(2) of the Act was precluded from asserting before the High Court that the Government orders granting concessional tariff to the appellants did not fall within the purview of Section 78A of the Act.
The contention of the learned counsel for the Electricity Board on the other hand has been that a direction under Section 78A of the Act can be only with regard to a matter of policy vis a vis the consumers generally or of a particular class or category as distinguished from individual consumers and even such a direction does not have a binding force and is calculated only to guide the Electricity Board in the discharge of its statutory functions.
Learned counsel for the parties were at variance even on the question as to whether the power of fixing tariff under Section 49 of the Act could be regulated by a direction under Section 78A thereof.
In support of the submission that a direction issued by the Government is compulsive in nature learned counsel appearing for the appellants and the State of Andhra Pradesh drew or attention to 631 certain decisions and principles of administrative laws laying down the scope of a direction.
Having considered the respective submissions of learned counsel for the parties on this point we are of the opinion thaton the facts of the instant appeals it is not necessary to go into the rival contentions referred to above on this point.
Here, the Electricity Board as is apparent from its proceedings dated 20th January, 1978 proceeded to implement the directions with regard to fixation of concessional tariff issued by the State Government and resolved to realise electricity charges from the appellants only at the concessional tariff of 12.2 p. as fixed in the Government Order dated 26th November, 1977.
It, however, took the further view in the said proceedings that the directions issued by the Government did not have any bearing on the obligation of the appellants to pay minimum charges which they were bound to pay under the agreements executed by them even though such minimum charges were to be calculated at the rate of 12.2 p. per unit subject to escalation as indicated in the Government Orders in question.
Such minimum charges were payable even if no electricity was consumed by the appellants for any reason whatsoever.
It is in this context that we are of the opinion that the question with regard to the nature of a direction issued under section 78A of the Act is only of academic value in these appeals.
The basic question which falls for our consideration, however, is as to whether the obligation of the appellants to pay minimum charges under the agreement executed by them ceased to be operative on account of the directions issued by the State Government fixing concessional tariff as has been asserted by learned counsel for the appellants.
As indicated earlier the case of the electricity Board in this behalf has been that the directions in question did not have any bearing on the obligation of the appellants to continue to pay minimum charges, of course, to be calculated on the basis of the concessional tariff of 12.2 p. per unit.
A plain reading of the Government Orders dated 2nd Movement, 1977 and 26th November, 1977 makes it clear that there is no specific direction contained therein that the appellants would not be bound to pay minimum charges or that the obligation to pay minimum charges under the agreements executed by them would remain suspended during the period when the concession tariff would be operative.
What was, however, urged by learned counsel for the appellants was that the very purpose of fixing concessional tariff by the State Government would be frustrated if the appellants are held to be bound to continue to pay minimum charges in pursuance of the agreements entered into by them.
With regard to this submission it is at the outset necessary to appreciate the genesis of 632 prescription of minimum charges.
To put it succinctly the purpose of prescribing minimum charges is to ensure that no undue loss is caused to the Electricity Board because the absence of minimum charges is likely to create a tendency in a prospective consumer to have connection for an inflated requirement and having agreed to meet such requirement the Electricity Board would be under an obligation to maintain the supply upto that requirement even if no or very little energy is consumed.
In Amalgamated electricity Co. vs Jalgaon Borough Municipality, [1975] 2 SCC Page 508 it was held in paragraph 9 of the Report: "Moreover it is obvious that if the plaintiff company was to give bulk supply of electricity at a concessional rate of 0.5 anna per unit it had to lay down lines and to keep the power ready for being supplied as and when required.
The consumers could put their switches on whenever they liked and therefore the plaintiff had to keep everything ready so that power is supplied the moment the switch was put on.
In these circumstances it was absolutely essential that the plaintiff should have been ensured the payment of the minimum charges for the supply of electrical energy whether consumed or not so that it may be able to meet the bare maintenance expenses.
" In Bihar State Electricity Boara vs Green Rubber Industries, [1990] 1 S.C.C. Page 731 while dealing with the question whether the stipulation to pay minimum guarantee charges irrespective of whether energy was consumed or not is reasonable and valid it was inter alia held that considered by the test of reasonableness it cannot be said to be unreasonable inasmuch as the supply of electricity to consumer involves incurring of overhead installation expenses by the Board which do not very with the quantity of electricity consumed and the installation has to be continued irrespective of whether the energy is consumed or not.
The purpose of prescribing minimum charges being, as stated above, can it be said that while issuing the direction to the Electricity Board to supply electricity to the five mini steel plants at concessional rate the State Government was oblivious of the said purpose and required the Electricity Board not only to supply electricity on the concessional rate but also incur undue loss in maintaining the required bulk of energy stipulated in the various agreements even if the concerned mini plants either used no energy or used very little energy.
633 In our opinion, on the material placed before us it is not possible to take the view that such was the intention of the State Government in directing supply to be made to the appellants on concessional tariff.
That it was not the intention of the State Government to do so was subsequently clarified by the State Government itself vide Government Order dated 5th December, 1978.
In this view of the matter the submission made on behalf of the appellants that with the grant of concessional tariff the agreements in so far as they required the appellants to pay minimum charges ceased to be operative or that the purpose of granting concessional tariff was likely to be frustrated if they were required to continue to pay minimum charges cannot, therefore, by accepted.
In granting concessional tariff obviously it does not appear to be the purpose to compel the Electricity Board to maintain the supply of the contracted load of electricity to the appellants by incurring losses in the manner stated above.
The only purpose in directing supply of energy at concessional rates was reduce the charges of actual energy consumed by the appellants and this purpose could not be frustrated till the Electricity Board complied with the direction of supplying electricity to them at the concessional rate.
In this view of the matter it is apparent that the direction of the State Government to the Electricity Board to supply electricity to the appellants at concessional rate did not either expressly or by necessary implication grant immunity to the appellants from payment of of minimum charges.
In support of the plea that the order of the State Government dated 5th December, 1978 which clarified that its earlier orders fixing concessional tariff did not preclude the Electricity Board from levying minimum charges and the subsequent order dated 12th March, 1979 withdrawing the concessional tariff were invalid it was submitted by learned counsel for the appellants that those orders were in violation of principles of natural justice as also the doctrine of promissory estoppel.
In so far as this submission is concerned what is of significance is that by the Government Order dated 2nd November, 1977 and 26th November, 1977 concession was granted to the appellants.
This is manifest from the aforesaid Government Orders themselves which expressly used the expression "concessional power tariff" or "concessional tariff.
At no stage, does it appear to have been disputed by the appellants that what was extended to them by the said Government Orders was by way of concession.
In the context of granting exemption from sales tax certain observations were made by this Court in Shri Bakul Oil Industries vs State of Gujarat, [1987] 1 S.C.C. Page 31 which would, keeping in view the principle laid down therein with regard to 634 the grant of concession, be, in our opinion, useful in considering the above stated submission made by the learned counsel for the appellants.
It was held: "Viewed from another perspective, it may be noticed that the State Government was under no obligation to grant exemption from sales tax.
The appellants could not, therefore, have insisted on the State Government granting exemption to them from payment of sales tax, What consequently follows is that the exemption granted by the government was only by way of concession.
Once this position emerges it goes without saying that a concession can be withdrawn at any time and no time limit can be insisted upon before the concession is withdrawn.
The notifications of the government clearly manifest that the State Government had earlier granted the exemption only by way of concession and subsequently by means of the revised notification issued on July 17, 1971, the concession had been withdrawn.
As the State Government was under no obligation, in any manner known to law, to grant exemption it was fully within its powers to revoke the exemption by means of a subsequent notification.
This is an additional factor militating against the contentions of the appellants.
" It was further held: "The exemption granted by the government as already stated, was only by way of concession for encouraging entrepreneurs to start industries in rural and undeveloped areas and as such it was always open to the State Government to withdraw or revoke the concession.
We must, however, observe that the power of revocation or withdrawal would be subject to one limitation viz. the power cannot be exercised in violation of the rule of promissory estoppel.
In other words, the government can withdrawn an exemption granted by it earlier if such withdrawal could be done without offending the rule of promissory estoppel and depriving an industry entitled to claim exemption from payment of tax under the said rule.
If the government grants exemption to a new industry and if on the basis of the representation made by the government an industry is established in order to avail the benefit to exemption, it may then follow that the new industry can legitimately raise a grievance that 635 The exemption could not be withdrawn except by means of legislation having regard to the fact that promissory estoppel cannot be claimed against a statute.
" This being the law with regard to grant of concession we are of the opinion that neither of the two orders mentioned above can be said to be illegal on the ground that they were passed in violation of principles of natural justice.
Who only question in this connection which survives is that of promissory estoppel.
With regard to this plea it would be seen that it is not the case of the appellants that they established their mini plants after the grant of concessional tariff by the two Government Orders referred to above and but for the grant of such concessional tariff they would not have established their mini plants.
The necessary facts so as to sustain the plea of promissory estoppel are not, in our opinion, to be found to have been either pleaded or established by the appellants.
To take it by way of an illustration reference may be made to the special leave petition giving rise to Civil Appeal Nos.
1454 1463 of 1981 filed by M/s. Andhra Steel Corporation Ltd. The plea with regard to promissory estoppel is to be found in ground no.(i) which reads : "Whether in view of the fact that the Petitioner had acted upon the Government orders dated 2.11.1977 and 26.11.1977 and thus altered its position (as without the concessions being granted to the Petitioner they would not have possibly run the industry, since it was bound to suffer huge (losses) is the State Government stopped from revoking, or modifying the same before the full period of concession had run out of efflux of time that is, by 31 10 1980?" (emphasis supplied) Almost identical is ground no.(i) in the special leave petition giving rise to Civil Appeal Nos. 1642 1645 of 1981.
The use of the word "possible" is obviously indicative of lack of specific averment with regard to principle of estoppel.
Even such an averment has not been made qua the Electricity Board.
With regard to the plea based on the doctrine of legitimate expectation suffice if to say that except invoking the said doctrine nothing substantial was brought to our notice on the basis of which the appellants could be held entitled to any relief.
In so far as the Government Order dated 16th January, 1980 on which reliance has been placed by learned counsel for the appellants in 636 The alternative is concerned it may be pointed out that the said order even though in substance amounts to a clarification of the earlier order of clarification dated 5th December, 1978, states nothing as to why the clarification contained in the order dated 5th December, 1978 in categorical terms did not express the real intention of the State Government in issuing the earlier Government Orders granting concessional tariff.
As already indicated above, the orders granting concessional tariff, in our opinion, did not either expressly or by necessary implication grant immunity to the mini steel plants from their obligation to pay minimum charges and this having been categorically stated by the State Government in its clarificatory order dated 5th December, 1978 there was apparently no basis for issuing the second clarificatory order dated 16th January, 1980.
Further, the said order dated 16th January, 1980 had been issued on some representation made on behalf of the mini steel plants at a point of time when writ petitions on their behalf had already been filed in the High Court and the matter was subjudice.
In such a situation , apart from the propriety of issuing the second clarificatory order datd 16th January, 1980 it is obvious that what was contained in this order is analogous to an averment made by the State Government in replay to the writ petitions filed on behalf of the appellants.
In our opinion, in the circumstances poinited out above the order dated 16th January, 1980 has no bearing in finding out the true import of the orders of the State Government granting concessional tariff.
In view of the foregoing discussion, we do not find any substance in these appeals.
They are accordingly dismissed.
No. costs.

Output:
The appellants owning mini steel plants have been getting supply of electricity from the Respondent Board.
The Board revised its terms and conditions for supply of electricity, and concessional tariff of 11 paise per unit for 3 years from 1.11.1977 was applied to five steel plants.
This tariff was subsequently enhanced to 12.5 paise per unit.
However, the concessional tariff was not extended to one of the appellants viz. M/s. Andhra Steel Corporation since a Writ Petition had been filed by it claiming that the agreement entered into with the Respondent Board for availing high tension electric supply was no longer in force.
In respect of the other steel plants, the Bard extended the concessional tariff subject to escalations and other terms and conditions and fixed a certain minimum consumption.
However, the tariff was revised to 16 paise without reference to the maximum demand charges from 1.3.1978.
In reply to a clarification sought by the Respondent Board, the State Government clarified that the Government order did not preclude the Board from applying the normal terms and conditions of supply and prescribing the monthly minimum charges and the working out of the escalated rate from time to time.
Subsequently the State Government withdrew the concessional tariff.
The State Government made a further clarification that its intention was to allow the concessional tariff without limiting the concession by imposition of minimum 625 consumption charges till the end of March, 1979.
Aggreived by the withdrawal of the concessional tariff, the mini steel plants filed Writ Petitions before the High Court contending that it was not open to the Electricity Board to have levied minimum charges and it was bound to supply electricity to them at the concessional tariff fixed by the State Government.
It was also contended that State Government 's subsequent clarification should prevail over the earlier one.
Violation of principales of natural justice, doctrine of promissory estoppel and right based on doctrine of legitimate expectation were also contended.
It was further contended that the directions were issued under section 78A of the Electricity Supply Act and hence they were of a compulsory nature and binding on the Board.
The Andhra Steel Corporation contended that while applying the concessional tariff to other mini steel plants, the Electricity Board was not justified in refusing the same to it thereby singling it out and hence its action was discriminatory and male fide.
The High Court rejected the various contentions and dismissed the Writ Petitions.
Aggrieved by the dismissal of their Writ Petitions, the mini steel plants filed appeal before this Court, raising the same contentions as were advanced before the High Court.
Dismissing the appeals, this Court, HELD: 1.
In granting concessional tariff obviously it does not appear to be the purpose to compel the Electricity Board to maintain the supply of the contracted load of electricity to the appellants by incurring loses.
The only purpose in directing supply of energy at concessional rates was to reduce the charges of actual energy consumed by the appellants and this purpose could not be frustrated till the Electricity Board complied with the direction of supplying electricity to them at the concessional rate.
Though the order dated 16.1.80 in substance amounts to a clarification of the earlier order of clarification dated 5th December,1978, it states nothing as to why the clarification contained in the order dated 5th December, 1978 in categorical terms did not express the real intention of the State Government in issuing the earlier Government orders granting concessional tariff.
The orders 626 granting concessional tariff, did not either expressly or by necessary implication grant immunity to the mini steel plants from their obligation to pay minimum charges and this having been categorically stated by the State Government in its clarificatory order dated 5th December, 1978 there was apparently no basis for issuing the second clarificatory order dated 16th January, 1980.
It was issued on some representation made by the mini steel plants at a point of time when Writ Petition on their behalf had already been filed in the High Court and matter was sub judice.
In such a situation, apart from the propriety of issuing the second clarificatory order on 16th January, 1980 it is obvious that what was contained in this order is analogous to an averment made by the State Government in reply to the Writ Petitions filed on behalf of the appellants and it has no bearing in finding out the true import of the orders of the State Government granting concessional tariff.
[633C D;636A E] Amalgamated Electricity Co. vs Jalgaon Borough Municipality, ; and Bihar State Electricity Board vs Green Rubber Industries, [1990] 1 SCC 731, referred to.
By the Government Orders dated 2nd November, 1977 and 26th November, 1977 concession was granted to the appellants.
This is manifest from the government Orders themselves which expressly used the expression "concessional power tariff" or "concessional tariff".
At no stage, the appellants disputed that what was extended to them by the said Government Order was by way of concession.
In view of the settled law.
Neither of the two orders viz., order dated 5.12.78 and 12.3.79 can be said to be illegal on the ground that they were passed in violation of principles of natural justice.[633F H] Shri Bakul Oil Industries vs State of Gujarat, ; ; relied on.
With regard to the plea of promissory estoppel, it is not the case of the appellants that they established their mini plants after the grant of concessional Tariff by the said two Government Orders and but for the grant of such concessional tariff they would not have established their mini steel plants.
The necessary facts so as to sustain the plea of promissory estoppel are not pleaded or established by the appellants.
[635B D] 4.
There is nothing on record to substantiate the plea of doctrine of legitimate expectation on the basis of which the appellants could be held entitled to any relief.[635G] 627 5.
On the facts of the present appeals it is not necessary to go into the question whether the power of fixing tariff under section 49 of the Electricity Supply Act could be regulated by a direction under section 78A thereof.
The electricity Board proceded to implement the directions with regard to fixation of concessional tariff issued by the State Government and resolved to realise electricity charges from the appellants only at the concessional tariff of 12.2 p. as fixed in the Government Order dated 26th November, 1977.
It, however, took the further view that the directions issued by the Government did not have any bearing on the obligation of the appellants to pay minimum charges which they were bound to pay under the agreements executed by them even though such minimum charges were to be calculated at the rate of 12.2 p. per unit subject to escalation as indicated in the Government Orders in question.
Such minimum charges were payable even if no electricity was consumed by the appellants for any reason whatsoever.
[631B D]


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N: Criminal Appeal No. 324 Of 1985 From the judgment and order dated 7.7.
1984 of the High Court of Rajasthan in Crl.
Appln.
No. 758 of 1983.
Sobhag Mal Jain and S.K. Jain for the Appellant.
A.N. Mulla, Surya Kant and B. Sharma for the Respondents.
The Judgment of the Court was delivered by DESAI, J.
Special leave granted.
Unusual though it may appear to be, under a compelling necessity in the interest of justice, we would depart from the ordinary response of this Court to matters involving bail.
Ordinarily, this Court is loathe to interfere with the orders granting or refusing bail but it cannot be an insurmountable obstacle in the way of rectifying an order which tends to disclose miscarriage of justice.
An incident occurred on August 23, 1983 in which one Bhanwaria, son of the present appellant received fatal injuries resulting in his death.
An information was lodged with the Police Station, Khedapa, District Jodhpur, Rajasthan State about the occurrence on August 24, 1983 around 11.30 A.M.
At that time Bhanwaria was alive and the offence was registered under Sec.
307, 447 read with Sec. 149 under Sec. 148, 379 and 327 of the Indian Penal Code.
When the hospital authority sent the message 784 that Bhawaria, the victim of assault, who was admitted in the hospital for treatment has succumbed to his injuries, the Investigating Officer also added an offence under Sec.
30 ' IPC.
Soon thereafter on September 29, 1983, the second respondent Chandan Singh s/o Shri Ranjit Singh ( 'respondent ' for short) appeared before the learned Sessions Judge, Jodhpur and moved an application under Sec.
438, Cr. P. C. for granting him anticipatory bail.
The public prosecutor appearing for the State opposed the application for grant of anticipatory bail.
The learned Judge by his order dated September 30, 1983 accepted the application and granted anticipatory bail to the respondent observing that the dispute is with regard to the right to cultivate a certain field from which when deceased Bhanwaria was coming out, the respondent fired at him and caused the injuries which proved fatal.
The learned Judge further observed that keeping in view some decisions referred to by him, he was of the opinion that the application tor anticipatory bail should be granted.
The learned Judge then ordered that if the 1) accused is taken into custody by the police, he must be released on bail on his furnishing security in the amount of Rs. 5,000 on condition that he will assist in investigation and will not interfere in the investigation and will not go out of India. ' The present appellant moved the High Court of Rajasthan questioning the correctness of this order and for cancellation of the anticipatory bail.
A learned Single Judge of the High Court negatived the contention that the petitioner had no locus standi to move the High Court for cancellation of anticipatory bail.
On merits, the learned Judge after referring to several decisions observed that while dealing with an application for cancellation of bail warranting interference with the discretionary order passed by the learned Sessions Judge granting bail, the considerations which should weigh with the court were whether: (1) the accused would be readily available during the trial; (2) he is not likely to abuse the discretion granted his favour 'by tampering with the prosecution witnesses, concluded that the respondent and his father are influential persons and hold important posts in the Panchayat or Zila Parishad furnished no ground for cancelling bail and that it is not necessary to examine whether anticipatory bail ought to have been granted, but what must be considered is whether a case tor cancellation of the same is made out.
The learned Judge then held that 785 such grounds are not shown to exist and accordingly rejected the application.
Hence this appeal by special leave.
Relevant considerations governing the court 's decision in granting anticipatory bail under Sec.
438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his 13 appeal is pending before the higher court and bail is sought during the pendency of the appeal.
Three situations in which the question of granting or refusing to grant bail would arise, materially and substantially differ from each other and the relevant considerations on which the courts would exercise its discretion, one way or the other, are substantially different from each other.
This is necessary to be stated because the learned Judge.
in the High Court unfortunately fell into an error in mixing Up all the considerations, as if all the three become relevant in the present situation.
The decision of the Constitutional Bench in Shri Gurbaksh Singh Sibbia & Ors.
vs State of Punjab(1) clearly lays down that 'the distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and there fore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. ' Unlike a post arrest order of bail, it is a pre arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.
direction under Sec.
438 is intended to confer conditional immunity from the touch as envisaged by Sec. 46 (1) or confinement.
In para 31, Chandrachud, CJ clearly demarcated the distinction between the relevant considerations while examining an application for anticipatory bail and an application for bail after arrest in the course of investigation, Says the learned Chief Justice that 'in regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the appellant on bail in the event of his arrest ' would generally be made.
It was observed that 'it cannot be laid down as an inexorable rule that anticipa (1) ; 786 tory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. ' Some of the relevant considerations which govern the discretion, noticed therein are the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant 's presence not being secured at the trial, a reasonable apprehension.
that witnesses will be tampered with and "the larger interests of the public or the State", are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. ' caution was voiced that 'in the evaluation of the consideration whether the applicant is likely to abscond, there can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, and more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it.
Having noticed the relevant considerations which should weigh with the court in the matter of granting or refusing to grant anticipatory bail, let us first look at the order made by the learned Sessions Judge.
The incident in which Bhanwaria was injured with fire arm occurred on August 23, 1983 in respect of which the first information report was lodged on August 24, 1983, in which it was in clear and unambiguous terms alleged that the respondent was at the relevant time armed with a gun and fired towards Bhanwaria who suffered injuries by gun shot The incident occurred as stated earlier around 4.00 P. M.
On August 23, 1983 and this information is lodged with the Police Station at a distance of 30 k.m.
from the scene of occurrence on August 24, 1983 at 11.30 a.m.
Amongst others, the offence registered was under Sec.
307 IPC i.e. attempt to commit murder.
The first information report thus discloses use of fire arm with which the respondent attempted to commit murder of Bhanwaria.
Surprisingly, the Investigating Officer had not arrested him till September 29, 1983 when he moved an application for anticipatory bail under Sec.438 of the Code of Criminal Procedure presumably after coming to know that injured Bhanwaria has succumbed to his injuries and the offence would one of murder 787 punishable under Sec.
302 IPC.
This conduct of the Investigating Officer left us guessing.
Some light is shed by some averments from the affidavit filed in the High Court and extracted by the learned Judge in his judgment.
It is stated that the respondent is the Sarpanch of Vil.
Danwara and is an influential person and that his father Ranjit Singh is ex M.L.A. and is at present Pradhan of the Panchayat Samiti.
Are these relevant considerations for not cancelling anticipatory bail when it appears to have been granted by a clear misconception of the relevant considerations governing of anticipatory bail ? The answer is emphatically in the negative in view of the extracted observations from the decision of the Constitution Bench in Gurbaksh Singh Sibbia 's case.
The accusation against the respondent is that he has committed an offence of murder punishable under Sec.
302 IPC.
Surprisingly, when anticipatory bail was granted on September 30, 1983, there is not a whisper of it in the order of the learned Sessions Judge, Jodhpur.
When a person is accused of a offence of murder by the use of a fire arm, the Court has to be careful and circumspect in entertaining an application for anticipatory bail.
Relevant considerations are conspicuous by silence in the order of the learned Sessions Judge.
Could it be said in this case that the accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive ? Could it be said that the object being to injure and humiliate the respondent by having him arrested ? What prompted the learned Sessions Judge to grant anticipatory bail left us guessing and we arc none the wiser by the discussion in the order of the learned Single Judge declining to interfere.
Mr. Mulla, learned counsel who appeared for the respondent urged that the order of the learned Sessions Judge is not of anticipatory bail under Sec.
438 but it is an order made after looking into the papers of investigation and therefore, it is an order of bail under Section 439 of the Code of Criminal Procedure.
We remain unconvinced because the order of the learned Sessions Judge clearly directs that if the respondent is taken into custody by the police, he must be released on bail on his furnishing security in the amount mentioned by him.
The learned Judge himself styled the order as one under Sec.
438 of the Code of Criminal Procedure.
If there was any doubt about this aspect? the penultimate para of the judge 788 ment of the learned Single Judge of the High Court dispels the same when it recites that no order for cancelling bail can be made when the learned Additional Sessions Judge No. 1, Jodhpur has granted anticipatory bail to the respondent by his order dated September 30, 1983.
Mr. Mulla then attempted to urge that on merits a good case for granting bail is made out.
We are not inclined to examine this contention because neither the learned Sessions Judge nor the learned Single Judge of the High Court has examined the case from that angle.
The only question which we were called upon to decide is whether: the learned Sessions Judge was justified in granting anticipatory bail in the facts and circumstances of this case ? Unquestionably, no case was made out for granting anticipatory bail in this case.
Let it be made distinctly clear that status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail.
Anticipatory bail to some extent intrudes in the sphere of investigation of crime and the court must be cautious and circumspect in exercising such power of a discretionary nature.
This case amply illustrates that the power was exercised sub silentio as to reasons or on irrelevant or considerations not germane to the determination.
This Court, to avoid miscarriage of justice, must interfere.
The High Court referred to two decisions of the Rajasthan High Court on the question of locus standi of the present appellant but once that was conceded and not questioned before us, we need not refer to them.
The learned Judge then referred to the decision in Gurbax Singh sibba 's case, but failed to take note of the relevant observations which we have extracted herein before.
Reference to the decision in Gurcharan Singh & Ors.
vs State (Delhi Administration)(1) by the High Court is hardly apposite because the controversy centered round the power of the High Court to deal with the application for cancellation of bail under Section 439(2? of the Code of Criminal Procedure and on merits this Court held that the High Court was not justified in cancelling the bail The Court was not concerned with examining the relevant considerations for granting or refusing to grant anticipatory hail in that case.
The deision in (1) 789 State vs Capt.
Jagjit singh(1) would be of n assistance as the provision of anticipatory bail come to be introduced in the Code of 1973.
Similarly the decision in Delhi Admn.
vs Sanjay Gandhi(2) is of no assistance because the court was concerned with the question of cancellation of bail already granted long back in the facts and circumstances of the case on account of events subsequent to the order granting bail.
The High Court lastly referred to Bhagirath Singh Judeja vs State of Gujrat (3) because that was the case in which accusation was for an offence under Sec.
307 IPC and the learned Sessions Judge had granted bail which order was quashed by the High Court.
As stated earlier, by reference to these decisions not of topical interest bearing on the question of grant or refusal of anticipatory bail the High Court unfortunately missed crux of the matter.
Before we conclude this judgment, it must be made distinctly clear that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that to when the investigation is in progress.
In fact, the Investigating Officer did not even attempt to arrest the appellant though the initial accusation was under Sec.
307 IPC punishable with imprisonment for life.
And as soon as the victim of the assault succumbed to his injuries and an offence under Sec.
302 was registered, promptly an application for anticipatory bail was made and granted.
If such an order is allowed to stand, faith of public in administration of justice is likely to be considerably shaken.
Therefore, we have no option but to cancel the order granting anticipatory bail.
By our setting aside the order granting anticipator bail, respondent should in no way be prejudiced.
If consequent upon the setting aside of the order granting anticipatory bail, the respondent is arrested which must ordinarily follow, it is open to him, if he is so advised, to move an application for being enlarged on bail and the Court would consider the same on merits wholly uninfluenced by the earlier orders, the judgment of the learned Single Judge of the High Court and this judgment.
(1) ; (2) ; (3) [1984] 1 S.C.C.284.
790 Accordingly this appeal is allowed and the order dated September 30, 1983 granting anticipatory bail to the respondent Chandan Singh s/o Ranjit Singh is quashed and set aside and the bond furnished by him is cancelled.
We order accordingly.

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The respondent was not arrested till September 29 , 1983 , when he appeared before the Sessions Judge , and moved an application under s.438 Cr.
P.C. for anticipatory bail , and by order dated September 30 , 1983 it was granted with a direction that if the respondent was taken into custody by the police he must be released on bail on his furnishing security in the amount of Rs. 5,000 on condition that he will assist in the investigation and will not go out of India.
The appellant moved the High Court questioning the correctness of the order granting anticipatory bail and for cancellation of the same.
A Single judge held that he had locus standi to move the High Court for cancellation of the anticipatory bail but on merits held that no grounds were made out for its cancellation , and accordingly rejected the application.
The Appellant appealed to this Court.
Allowing the Appeal , ^ HELD: 1.
Relevant considerations governing the Court 's decision in granting anticipatory bail under s.438 are materially different from those when an application for bail by a person who is arrested in the course of an investigation as also by a person who is convicted and his appeal is pending before the 781 higher court and bail is sought t during the pendently of the appeal.
In the instant case, the High Court unfortunately fell into error in mixing up all the consideration , as if all the three become relevant in the present situation.
[785B C] 2.
The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and, therefore means release from the custody of the place, the latter is granted in anticipa tion of arrest and`is, therefore, effective at the very moment of arrest.
Unlike a post arrest order of bail, it is a pre arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.
A direction under s.438 is intended to confer conditional immunity from the touch as envisaged by s.46(1) or confinement.
[78D E] 3.
In regared to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made.
It cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears (1) to be actuated by malafides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond.
Some of the relevant considerations which govern the discretion of the Court while deciding an application for anticipatory bail are the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant s presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the State " In the evaluation of the consideration whether the applicant is likely to abscond.
there can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and poor will run away from the course of justice, any more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it.
[785G H; 786A D] 4.
The incident in which Bhanwaria was injured with fire arm occurred on August 23,1983 in respect of which the First Information Report was lodged on August 24, 1983 and it was in clear and unambiguous terms alleged that the respondent was at the relevant time armed with a gun and fired towards Bhanwaria who suffered injuries by the gunshot.
Amongst others the offence registered was under s.307 I.P.C. that is attempt to commit murder.
The first information report thus discloses use of fire arm with which the respondent attempted to commit murder of Bhanwaria.
Surprisingly, the Investigating Officer had not arrested him till September 29, 1983 when he moved an application for anticipatory bail under s.438 Cr.
P.C. presumably after coming to know that injured has succumbed to his injuries and the offence would be one of murder punishable under s.302 I.P.C.
This conduct of the Investigating Officer leaves the Court guessing.
The affidavit led in the High Court states that the Respon 782 dent is the Sarpanch of the village and is an influential person and that his father is Ex M.L.A. and is at present Pradhan of the Panchayat Samiti.
They are not relevant considerations for cancelling anticipatory bail, when it appears to have been granted by a clear misconception of the relevant considerations governing the grant of anticipatory bail, [786F H; 787A B] 5.
The accusation against the respondent is that he has committed an offence of murder punishable under s.302 I.P.C. Surprisingly, when anticipatory bail was granted on September 30, 1983 there is not a whisper of it in the order of the learned Session Judge.
When a person is accused of an offence of murder by the use of a fire arm the Court has to be careful and circumspect in entertaining an application for anticipatory bail.
Relevant considerations are conspicuous by silence in the order of the Session Judge, In the instant case, it cannot be said that the accusation does not appear to stem from motives of furthering the ends of Justice but from some ulterior motive and the object was to injure and humiliate the respondent by having him arrested.
What prompted the Sessions Judge to grant anticipatory bail leaves the Court guessing and the Court is none the wiser by the order of the High Court declining to interfere.
[787D F] 6.
The order of the Session Judge clearly directs that if the respondent is taken into custody by the police, he must be released on bail on his furnishing security in the amount mentioned by him.
The order is styled as one under s.438 Cr.
P.C. [787H] 7.
Unquestionably, no case was made out for granting anticipatory bail in this case.
Status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail.
Anticipatory bail to some extent intrudes in the sphere of investigation of the crime and the Court must be cautious and circumspect in exercising such power of a discretionary nature.
In the instant case, the power was exercised sub silentio as to reasons or on irrelevant or considerations not germane to the determination.
This Court, to avoid miscarriage of justice, must interfere .
[787D E] 8.
Some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too when the investigation is in progress.
In the instant case the Investigating Officer did not even attempt to arrest the appellant though the initial accusation was under s.307 I.P.C. punishable with imprisonment for life and as 50 n as the victim of the assault succumbed to his injuries and offence under s.302 was registered, promptly an application for anticipatory bail was made and granted.
If such an order is allowed to stand, faith of public in administration of justice is likely to be considerably shaken Therefore, the order granting anticipatory bail is cancelled.
[789D F] 9.
Settling aside the order granting anticipatory bail should in no way prejudice the respondent.
It si open to him to move an application for being 783 enlarged on bail and the Court would consider the same on merits wholly uninfluenced by the earlier orders, the judgment of the learned Single Judge of the High Court and this Judgment.
[789G H] Shri Gurbaksh Singh Sibbia and Ors.
vs State of Punjab, ; , relied upon.
Gurcharan Singh and Ors.
State(Delhi Administration), ; , State vs Capt.
Jagjit Singh, ; , Delhi Admn.
vs Sanjay Gandhi, ; and Bhagirath Singh Judeja vs State of Gujarat, [1984] I S.C.C. 284, referred to


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urt held that there was no consequential relief involved since neither the decree nor the alienation binds the plaintiffs in any manner.
The 1st defendant in the suit has, therefore, filed this appeal.
Before us a preliminary objection was raised based on the observations of this Court in Raihnavaramaraja vs Smi.
Vimla (1) that the present appeal is not competent.
In that case this Court observed that whether proper court fee is paid on a plaint is primarily a question between the plaintiff and the State and that the defendants who may believe and even honestly that proper court fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision against the order adjudging payment of court fee payable on the plaint.
But the observations must be understood in the background of the facts of that case.
This Court was there dealing with an application for revision filed before the High Court under section 115 of the Code of Civil Procedure and pointed out that the jurisdiction in revision exercised by the High Court is strictly conditioned by clauses (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that the Court has acted illegally or with material irregularity in the exercise of its jurisdiction, and the provisions of sections 12 and 19 of the Madras Court Fees Act do not arm the defendant with a weapon of technicality to obstruct the progress of.
the suit by approaching the High Court in revision against an order determining the court fee payable.
The ratio of that decision was that no revision on a question of court fee lay where no question of jurisdiction was involved.
This decision was correctly interpreted by the Kerala High Court in Vasu vs Chakki Mani(2)where it was pointed out that no revision will lie against the decision on the question of adequacy of court fee at the instance of the defendant. unless the question of court fee, involves also the question of jurisdiction of the court.
In the present case the plaint was rejected under Order 7, Rule 1 1 of the C.P.C. Such an order amounts to a decree under section 2(2) and there is a right of appeal open to the plaintiff.
Furthermore, in a case in which this Court has granted special leave the question whether an appeal lies or not does not arise.
Even otherwise a second appeal would lie under section 100 of the C.P.C. on the ground that the decision of the 1st Appellate Court on the interpretation of section 7(iv) (c) is a question of law.
There is thus no merit in the preliminary objection.
As regards the main question that arises for decision it appears to us that while the court fee payable on a plaint is certainly to be decided on the basis of the allegations and the prayer in the plaint and the question whether the plaintiff 's suit will have to fail for failure to ask for consequential relief is of no concern to the court at that stage the court in deciding the question of court fee should look into the allegations in the plaint to see what is the substantive relief that is asked for Mere astuteness in drafting the plaint will not be allowed to stand in the way of the court looking at the substance of the relief asked for.
In this case the relief asked for is on the basis that the property in dispute is a joint Hindu family property and there was no legal necessity (1) A. I. R. (2) A. I. R. 1962 Kerala 84. 325 to execute the mortgage.
It is now well settled that under Hindu Law if the manager of a joint family is the father and the other members are the sons the father may by incurring a debt so long as it is not for an immoral purpose, lay the joint family estate open to be taken in execution proceedings upon a decree for the payment of the debt not only where it is an unsecured debt and a simple money decree for the debt but also to a mortgage debt which the father is personally liable to pay and to a decree for the recovery of the mortgage debt by the sale of the property even where the mortgage is not for legal necessity or for payment of antecedent debt (Faqir Chand vs Harnam Kaur(1).
Consequently when the plaintiffs sued for a declaration that the decree obtained by the appellant against their father was not binding on them they were really asking either for setting aside the decree or for the consequential relief of injunction restraining the decree holder from executing the decree against the mortgaged property as he was entitled to do.
This aspect is brought out in a decision of the Full Bench of the Lahore High Court in Zeb ul Nisa vs Din Mohammad(2)where it was held that : "The mere fact that the relief as stated in the prayer clause is expressed in a declaratory form does not necessarily show that the suit is for a mere declaration and no more.
If the relief so disclosed is a declaration pure and simple and involves no other relief, the suit would fall under article 17(iii).
" In that case the plaintiff had sued for a twofold declaration : (i) that the property described in the plaint was a waqf, and (ii) that certain alienations thereof by the mutwalli and his brother were null and void and were ineffectual against the waqf property.
It was held that the second part of the declaration was tantamount to the setting aside or cancellation of the alienations and therefore the relief claimed could not be treated as a purely declaratory one and inasmuch as it could not be said to follow directly from the declaration sought for in the first part of the relief, the relief claimed in the case could be treated as a declaration with a "consequential relief.
" It was substantive one in the shape of setting aside of alienations requiring ad valorem court fee on the value of the subject matter of the sale, and even if the relief sought for fell within the purview of section 7 (iv) (c) of the plaintiffs in view of sections 8 and 9, Suits Valuation Act, having already fixed the value of the relief in the plaint for purposes of jurisdiction were bound to fix the same value for purposes of court fee.
It was also pointed out that in deciding whether a suit is a purely declaratory, the substance and not merely the language or the form of the relief claimed should be considered.
The court also observed : "It seems to me that neither the answer to the question whether the plaintiff is or is not a party to the decree "or the deed sought to be declared as null and void, nor to the ques tion whether the declaration sought does or does not fall within the purview of section 42, Specific Relief Act, furnishes a satisfactory or conclusive test for determining the court fee payable (1) ; (2) A. I. R. [1941] Lahore 97. 326 in the suit of this description.
When the plaintiff is a party to the decree or deed, the declaratory relief, if granted, neces sarily relieves the plaintiff of his obligations under the decree or the deed and, hence it seems to have been held in such cases, that the declaration involves a consequential relief.
In cases where the plaintiff is not a party to the decree or the deed.
tile declaratory relief does not ordinarily include any such consequential relief.
But there are exceptional cases in which the plaintiff though not a party to the deed or the decree is nevertheless bound thereby.
For instance, when a sale or mortgage of joint family property is effected by a manager of a joint Hindu family, the alienation is binding on the other members of the family (even if they are not parties to it) until and unless it is set aside.
Similarly, a decree passed against the manager will be binding on the other members of the If therefore a copartner sues for a declaration that such an alienation or decree is null and void, the declaration must I think be held to include consequential relief in the same may as in those cases in which the plaintiff is himself a party to the alienator, or the decree, which is sought to be, declared null and void.
The case dealt with in AIR 1936 Lah 166 seems to have been of this description.
The case of an alienation by a mutwalli of waif property would also ap pear to stand on a similar footing.
In the case of waif property, it is only the trustee or the mutwalli who can alienate the property.
If he makes an alienation it is binding on all concerned, until and unless it is set aside.
If therefore a person sues to get such an alienation declared null and void, lie can only do so by getting the deed invalidated.
The relief claimed in such cases also may therefore be found to include a consequential relief.
" The decision of the Lahore High Court in Prithvi Raj vs D. C. Ralli (1) is exactly in point.
It was held that in a suit by the son for a declaration that the mortgage decree obtained against his father was not binding upon him it is essential for the son to ask for setting aside of the decree as a consequence of the declaration claimed and to pay ad valorem court fee under section 7(iv)(c).
It was pointed out that a decree against the father is a good decree against the, son and unless the decree is set aside it would remain executable against the son, and it was essential for the, son to ask for setting aside the decree.
In Finayakrao vs Mankunwarbai(2) it was held that in a suit by the son for a declaration that decree against the father does not affect his interests in the family property, consequential relief is involved and ad valorem court fee would be necessary.
We should now refer to certain decisions relied upon by the respondents.
We do not consider that the decision of the learned Single Judge of the Madras High Court in Venkata Ramani vs Mravanaswami(3) lays down the correct law.
It proceeds on the basis that (1) A.I.R. 1945 Lahore 13.
(2) A.I.R. 1943 Nagpur 70.713.
(3) A.I.R. 1925 327 the plaintiffs not being parties to the document they were not bound to get rid of it by having it actually cancelled, but it ignores the effect of Hindu Law in respect of a mortgage decree obtained against the father.
As pointed out by the Lahore High Court, in such cases in suing for declaration that the decree is not binding on him the son is really asking for a cancellation of the decree.
This aspect does not seem to have been taken into consideration by the learned Single Judge.
The decision of a learned Single Judge of the Nagpur High Court in Pandurang Mangal vs Bhojalu Usanna(1) suffers from the same error.
Though it refers to the decision of the Full Bench of the Lahore High Court as well as the same High, Court 's decision in Prithvi Raj vs D. C. Ralli(2) it does not seek to distinguish them for holding otherwise.
The learned Judge gives no reason whether and if so why he dissents from the view taken in the latter case.
This decision also suffers from the learned Judge 's misapprehension that there is a difference between a simple money decree and a mortgage decree.
obtained against a Hindu father when it is questioned by the son and its view that in execution of a simple money decree the entire joint family property, inclusive of the interest of the sons, is liable to be sold in execution of the decree, but that in the case of a mortgage decree it is not necessary for a son to allege or prove that the debt was incurred for an illegal or an immoral purpose and he can succeed if it is proved that the mortgage was not for legal necessity or for the payment of antecedent debt.
We have already referred to the decision of the Court on this point.
We must also hold in view of the reasons already set forth that the decision of the Allahabad High Court in Ishwar Dayal vs Amba Prasad (3) is not a good law.
As regards the decision of the Full Bench of the Allahabad High Court in Bishan Sarup vs Musa Mal(4) there is nothing to show whether the alienation was made by the manager of a joint Hindu family and therefore the decision is not in point.
We, therefore, hold that the decision of the High Court was not correct and allow this appeal with costs.
The plaintiffs would be given a month 's time for paying the necessary court fee.
Appeal allowed.
(1) A.I.R. 1949 Nagpur 37.
(2) A.T.R. 1945 Lahore 13.
(3) A.T. R. 1935 Allahabad 667.
(4) A.I.R. 1935 Allahabad.

Output:
There was a mortgage of a property in favour of the appellant for a sum of Rs. 15,000/ .
The mortgagee filed a suit and obtained a decree.
When he tried to take out execution proceedings for the sale of the mortgaged property, respondents 1 and 2 filed a suit for a declaration that the mortgage executed by their father was null and void as against them.
as the property was a joint Hindu family property and the mortgage had been effected without consideration and family necessity.
The plaintiffs (Respondent 1 and 2) paid a Court Fee of Rs. 19.50 and the value of the suit for purposes of jurisdiction was given as Rs. 16,000/ .
A preliminary objection was raised by the Appellant that the suit was not properly valued for purposes of Court Fee and jurisdiction.
The Subordinate Judge held that although the case is 'covered by S.7(iv)(c) of the Court Fee Act, the proviso to that Section applied and directed the plaintiffs to pay Court.
Fee on the value of Rs. 16,000/ .
Thereafter, the Court Fee not having been paid, the plaint was rejected.
The plaintiff appealed before the High Court against that decision.
The High Court held against the defendants taking the view that the plaintiffs were not at all bound by the mortgage in dispute since it was a joint family property.
The first defendant appealed before this Court.
In this Court, preliminary objection were raised that the present appeal is not competent and secondly, the plaintiffs were not bound by the mortgage ,of the joint Hindu family property where there was no legal necessity to execute the mortgage.
Allowing the appeal, HELD (i) in the present case, the plaint was rejected under Order 7, Rule 11 of the C.P.C. Such an order amounts to a decree under S.2(ii) and there is a right to appeal open to the plaintiff.
Furthermore, in a case in which.
this Court has granted special leave, the question whether an appeal lies or not, does not arise.
Even otherwise, a second appeal would lie under S.100 of the C.P.C. on the ground that the decision of the 1st appellate Court on the interpretation of S.7(iv)(c) is a question of law.
There is thus no merit in the preliminary objection.
[324E G] Vasu vs Chakki Mani (A.I.R. 1962 Kerala 84 referred to).
Rathnavarmaraja vs Smt.
Vimla, ; referred to and distinguished.
(ii) While the Court Fee payable on a plaint is certainly to be decided on the basis of the allegations and the prayer in the plaint and the question whether the plaintiff 'section suit will have to fail for failure to ask for consequential relief is of no concern to the Court question of Court Fee, should look into at that stage, the Court in deciding the allegations in the plaint to see what the substantive relief that is asked for Mere cleverness in drafting the plaint will not be allowed to stand in the way of the Court looking at the substance of the relief asked for.
In the present case, the relief asked for is on the basis that the property in dispute is a joint Hindu family property and there was no legal necessity to execute the mortgage.
It is now well settled that under Hindu Law, if the manager of a joint family is the father and the ,other members are sons, the father may, incur a debt, so long as it is not for immoral purposes and the joint family estate is open to be taken in execution ,of proceedings upon a decree for the payment of the debt.
[324G 3250] Fakir Chand vs Harnam Kaur ; , referred to.
323 (iii) In the present case, when the plaintiffs sued for a declaration that the decree obtained by the appellant against their father was not binding on them, they were really asking for setting aside the decree or for the consequential relief of injunction restraining the decree holder from executing the decree against the mortgaged property.
[325B C] In deciding whether a suit is purely declaratory, the substance and not merely the language or the form or relief claimed should be considered.
[325G] Zeb ul Nisa vs Din Mohammad, A.I.R. 1941 Lahore 97 referred to.
(iv) In a suit by the son for a declaration that the mortgage decree obtained against his father is not binding upon him.
it is essential for the son to ask for setting aside the decree as a consequence of the declaration claimed and to pay ad velorem Court fee under section 7(iv)(c).
A decree against the father is a good decree against the son and unless the decree is set aside, it will remain executable against the son and it is essential for the son to ask to set aside the decree.
Further, in a suit by the son for a declaration that a decree against the father, does not affect his interest in the family property, consequential relief is involved and ad velorem Court fee is necessary.
[326F G] Prithvi Rai vs D. C. Ralli, A.I.R. 1945 Lahore 13, and Vinayakrao vs Mankunwar Bai, A.I.R. 1943 Nagpur 70, referred to The Judgment of the Court was delivered by ALAGIRISWAMI, J.
This appeal raises the, question of the court fee payable in the suit filed by the 1st respondent and his minor brother the 2nd respondent against their father the 3rd respondent and the alienee from him the appellant.
On 13 7 1962 the father executed a mortgage deed in favour of the appellant of a property of which he claimed to be the sole owner for a sum of Rs. 15,000/ .
The mortgagee, the appellant filed a suit on the foot of this mortgage and obtained a decree.
When he tried to take out execution proceedings for the sale of the mortgaged property, respondents 1 and 2 filed a suit for a declaration that the mortgage executed by their father in favour of the appellant is nun and void and ineffectual as against them as the property was a joint Hindu family property, and the mortgage had been effected without consideration and family necessity.
On this plaint the plaintiffs _paid a fixed court fee of Rs. 19.50 and the value of the suit for purposes of jurisdiction was given as Rs. 16,000.
A preliminary objection having been raised by the appellant that the suit was not properly valued for purposes of court fees and jurisdiction, the Subordinate Judge tried it as a preliminary issue.
He held that although the case is covered by section 7(iv) (c) of the Court Fees Act, the proviso to that section applied and directed the plaintiffs to pay court fee on the value of Rs. 16,000 which was the amount at which the plaintiff , valued the suit for the purposes of jurisdiction.
The court fee not having been paid the plaint was rejected.
The plaintiffs thereupon carried the matter up on appeal before the High Court of Punjab & Haryana.
Before that Court the plaintiffs did not seriously contest the position that the consequential relief of setting aside the decree within the meaning of Section 7 (iv) (c) of the Court Fees Act was inherent in the declaration which was claimed with regard to the decree.
But taking the view that the plaintiffs were not at all bound by the mortgage in dispute or the decree, the High 324