JUDGMENT

By an order of this Court dated March 1, 1978 this appeal was directed to be listed with Civil Appeal No. 357 of 1971. Both these appeals, therefore, were to be heard together. However, it appears that Civil .Appeal No. 357 of 1971 alone was heard and dismissed by an order dated January 16, 1985.

2. The questions which are raised in this appeal and which were common to Civil Appeal 357 of 1971 having been concluded by the decision in that appeal, are rightly not pressed before us by Mr. E. C. Agarwala, advocate for the appellant. However, he submits that there is one question, namely, the mala fides involved in withdrawing the notification of January 24, 1969 by another notification of August 23, 1917 and this point is distinct to the present appeal.

3. In support of his contention of mala fides he pointed out to us that in the writ petition which was filed by the appellants in the High Court in paragraph 15, it was averred as follows:

"That in June, 1977, General Elections were held to the Haryana State Legislature. The Congress party was defeated and the Janata Party formed the Government in Haryana."

4. It is his contention that when the industry was first established the appellants were granted exemption from pavment of octroi duty by notification of April 23, 1965 up to February 27, 1971. This exemption was, withdrawn by notification of June 19, 1966. It was this withdrawal which was challenged earlier by writ petition filed in the High Court which writ petition was dismissed on September 24, 1970. It is against the said order of dismissal, that the present appeal was filed so also was the appeal No. 3571/71 as stated earlier. The said appeal 357/ 71 was dismissed on January 16, 1985 as stated earlier.

5. However, in the meanwhile, by another notification of September l968, a fresh exemption was granted up to the originally fixed date, namely, February 27, 1971. Nevertheless, the matters were pursued because for the interregnum, namely, the period from January, 1967 till September 7, 1968 there was no exemption. As stated earlier, even this grievance with regard to the absence of exemption for the said interregnum has been concluded by the decision in Appeal No. 357/71.

6. Thereafter the events which are relevant to the present appeal and to the present point urged before us occurred. On January 24, 1969, by a notification the exemption was extended up to September 7, 1978. However, before the expiry of the said period, by a notification of August 23, 1977 the exemption was withdrawn for the remaining period, viz., from 23rd August, 1977 till September 7, 1978. The contention is that it is this withdrawal of exemption which is mala fide since the new Government, viz., the Janata Government which came to power in the General Elections of June, 1977 did it to undo what the earlier Congress Government had done.

7. Although in the special leave petition a specific allegation is made that the withdrawal of the exemption by the notification of August 23, 1977 was a mala fide act on the part of the new Government, there is no such averment made admittedly in the writ petition which was filed before the High Court. Except a bare statement of the event in paragraph 15 which we have reproduced verbatim above, we do not find any averment with regard to the mala fides or any contention on that behalf in the petition. The mala fides are essentially questions of fact and they have not only to be alleged but have also to be supported by the relevant material. Since not even an averment was made in that behalf in the writ petition, the point cannot be permitted to be taken up for the first time in this appeal.

8. Shri Agrawala referred us to the decision of the Privy Council in R. T. Rangachari v. Secretary of State, AIR 1937 PC 27. That was a case where a sub-inspector of police was granted an invalid pension by a competent authority. However, thereafter the officer who succeeded the authority granting the pension, reconsidered the mat