# Prabhakaran v. P. Jayarajan, in which it

- **Citation:** (2009) 3 ILRA 752
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-09-09
- **Case number:** Civil Misc. Writ Petition No.33589 of 2007
- **Bench:** A. P.Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prabhakaran-v-p-jayarajan-in-which-it-41443
- **Pages:** 8

## Headnote

U.P.Panchayat Raj Act, 1947-Section 5A(a)- readwith Representation of People
Act 1551-Section 8(3)- Disqualificationrespondent
-7
elected
as
village
Pradhan-admittedly
convicted
under
section 302-defence taken about bail in
appeal and stay of conviction in pending
criminal
appeal-not
available-writ
of
'quo warrante' issued declaring the
election of respondent 7 as illegal -who
shall not be construed to hold public
office of village Pradhan.

Held: Para-13 & 20

It has been held that mere filing of an
appeal
would
not
take
away
the
disqualification
incurred
by
the
petitioner by virtue of his conviction. The
aforesaid decision has taken notice of
the
decision
in
the
case
of
K.
Prabhakaran Vs. P. Jayarajan, in which it
has been held that once the conviction
has been pronounced and the sentence
awarded, then the disqualification is
attached in view of the provisions, which
are presently in consideration. Section 5A of the Act 1947 clearly entails that a
person shall be disqualified for being
chosen in the event he is convicted. In
the instant case, it is an admitted
position that the conviction has been
pronounced and sentence awarded.

In view of the aforesaid conclusion
drawn and in view of the fact that the
respondent no. 7 admittedly suffers from
an inherent disqualification as provided
under Section 5-A, a declaration is
hereby issued that the election of the
respondent no. 7 as Gram Pradhan was
illegal and invalid and he shall not be
construed to hold the public office of
Gram
Pradhan
of
Gram
Panchayat
Muriari, District Ghazipur forthwith as it
stands
accordingly
annulled.
The
impugned order dated 30.03.2007 is also
quashed.
Case law discussed:
1964 ALJ 1118, 2003 (2) AWC 1385, 2005
(99) RD 746, 2001 (7) SCC 231, AIR 1999 SC

## Text

752 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2009

BEFORE
THE HON'BLE A. P.SAHI, J.

Civil Misc. Writ Petition No.33589 of 2007

Dhanai

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ramendra Asthana
Sri Atul Srivastava

Counsel for the Respondents:
Sri P.N. Rai,
Sri Jai Prakash Singh
S.C.

U.P.Panchayat Raj Act, 1947-Section 5A(a)- readwith Representation of People
Act 1551-Section 8(3)- Disqualificationrespondent
-7
elected
as
village
Pradhan-admittedly
convicted
under
section 302-defence taken about bail in
appeal and stay of conviction in pending
criminal
appeal-not
available-writ
of
'quo warrante' issued declaring the
election of respondent 7 as illegal -who
shall not be construed to hold public
office of village Pradhan.

Held: Para-13 & 20

It has been held that mere filing of an
appeal
would
not
take
away
the
disqualification
incurred
by
the
petitioner by virtue of his conviction. The
aforesaid decision has taken notice of
the
decision
in
the
case
of
K.
Prabhakaran Vs. P. Jayarajan, in which it
has been held that once the conviction
has been pronounced and the sentence
awarded, then the disqualification is
attached in view of the provisions, which
are presently in consideration. Section 5A of the Act 1947 clearly entails that a
person shall be disqualified for being
chosen in the event he is convicted. In
the instant case, it is an admitted
position that the conviction has been
pronounced and sentence awarded.

In view of the aforesaid conclusion
drawn and in view of the fact that the
respondent no. 7 admittedly suffers from
an inherent disqualification as provided
under Section 5-A, a declaration is
hereby issued that the election of the
respondent no. 7 as Gram Pradhan was
illegal and invalid and he shall not be
construed to hold the public office of
Gram
Pradhan
of
Gram
Panchayat
Muriari, District Ghazipur forthwith as it
stands
accordingly
annulled.
The
impugned order dated 30.03.2007 is also
quashed.
Case law discussed:
1964 ALJ 1118, 2003 (2) AWC 1385, 2005
(99) RD 746, 2001 (7) SCC 231, AIR 1999 SC
1723.

(Delivered by Hon'ble A.P. Sahi, J.)

1. Heard Shri Atul Srivastava,
learned counsel for the petitioner and Shri
Jai Prakash Singh, learned counsel for the
respondent no. 7 and Shri C.P. Mishra,
learned standing counsel appearing on
behalf of the respondent nos. 1 to 6.

2. In spite of repeated time having
been granted by the Court no counter
affidavit was filed, as a result whereof,
the Court had to summon the concerned
officials. Today a short counter affidavit
supported with an application has been
filed by Shri Arvind Kumar Singh,
District Panchayat Raj Officer, Ghazipur
stating therein that unqualified apology is
being tendered for the delay caused in
providing assistance to the Court and
another short counter affidavit has been
filed by Shri Jitendra Mohan Singh, SubDivisional
Magistrate,
Jakhaniya,
Ghazipur stating therein that pursuant to
3 All] Dhanai V. State of U.P. and others

753
the interim order of this Court, the District
magistrate passed an order restraining the
respondent no. 7 from functioning as
Gram Pradhan. Keeping in view the
allegations as contained in the writ
petition, the functions of the Gram
Pradhan are being carried out by a person
appointed and deputed vide order dated
17.12.2007.

3. This writ petition has been filed
on the ground that the respondent no. 7Shyam Narain has been convicted in a
criminal case under Section 302 I.P.C.
and has been awarded a punishment of
life imprisonment, and as such in view of
the provisions of Section 5-A(a) of the
Uttar Pradesh Panchayat Raj Act, 1947
(hereinafter referred to as 'the Act'), the
respondent no. 7 could have neither
contested the election of the Gram
Pradhan nor could have been elected and
therefore a writ of quo warranto should be
issued to prevent the respondent no. 7 to
function as such as he is totally
disqualified to hold any such public
office. A further prayer has been made to
quash the order dated 30.03.2007 passed
by the Tehsildar rejecting the petitioner's
representation.

4. Notices were issued and a counter
affidavit has been filed on behalf of the
respondent no. 7 as well.

5. The fact that the respondent no. 7
has been convicted in a criminal case has
not been disputed. It has further been
stated that the respondent no. 7 did not
conceal this fact at the time when the
nomination
was
filed.
The
further
contention of the learned counsel for the
respondent is that the removal of the
answering respondent can be brought
about only by an appropriate election
petition or under a procedure prescribed
in any law for the time being in force for
such purpose. It has further been
submitted that a criminal appeal filed
against the said conviction is still pending
before this Court and, therefore, the said
conviction should not be taken to be a
disqualification.

6. Learned standing counsel, on the
other hand, submitted that it appears that
it was on account of an erroneous
calculation of the period of 5 years as
provided for under Rule 3 of the Uttar
Pradesh Panchayat Raj Rules, 1994. He
contends that so far as the question of
continuance
or
otherwise
of
the
respondent no. 7 is concerned, the same
has to be construed in accordance with the
provisions of the Act and Rules and the
authorities are equally bound by it. He
contends that so far as the election of the
respondent no. 7 has not been set aside
under any election petition or any other
proceeding provided for in law. He
submits that the records have already been
filed along with the writ petition and there
is nothing which is required to be added
on facts. He contends that the criminal
appeal, which is pending before this
Court, would finally decide the fate of the
respondent no. 7.

7. The petitioner had earlier come up
before this Court for a quo warranto in
Writ Petition No. 62339 of 2006 alleging
the aforesaid disqualification. The petition
was disposed of on 16.11.2006 with a
direction to approach the Presiding
Officer who was to take a decision in the
matter.
The
impugned
order
dated
30.03.2007 was passed holding that no
authority could be shown to the effect that
a person convicted under Section 302
I.P.C. would stand disqualified under
754 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Section 5A (g) of the Act. The contention
of the petitioner is that the disqualification
is under Section 5A (a) of the Act and
therefore the impugned order proceeds
erroneously.

8. Having heard learned counsel for
the parties and having perused the facts
on record, it is evident that the impugned
order overlooks the provisions of Section
5-A(a) of the Act. The disqualification of
a person to be elected as a member of the
legislative assembly is also provided for
as a disqualification for being chosen as
Pradhan. This would be clear upon a
combined reading of Section 5-A(a) of the
Act
and
Section
8
(3)
of
the
Representation of the People Act, 1951
quoted below:-

[5-A.
Disqualification
of
membership. - A person shall be
disqualified for being chosen as, and for
being, [the Pradhan or] a member of a
Gram Panchayat, if he- (a) is so
disqualified by or under any law for the
time being in force for the purposes of
elections of the State Legislature:

Provided that no person shall be
disqualified on the ground that he is less
than twenty-five years of age, if he has
attained the age of twenty-one years;
8(3). A person convicted of any
offence and sentenced to imprisonment
for not less than two years [other than any
offence referred to in sub-section (1) or
sub-section (2)] shall be disqualified from
the date of such conviction and shall
continue to be disqualified for a further
period of six years since his release.]

9. Apart from this, it is true that as
held by this Court in the case of Harsukh
Lal Vs. Sarnam Singh and others reported
in 1964 ALJ 1118, a sentence of life
imprisonment awarded upon a conviction
under Section 302 I.P.C., may not
necessarily involve moral turpitude if the
offence was a result of provocation as
distinct from a cold-blooded murder.
Reference may be had to the decision in
the case of Ran Vijay Chandra Vs. State
of U.P. and others reported in 2003 (2)
AWC 1385.

10. A perusal of the said decision
therefore carves out exceptions where
moral turpitude can be inferred. The
respondent no. 7 was a teacher and
professed rivalry with the deceased. His
wife contested elections of Pradhan
against the wife of the respondent. The
murder was committed and from a perusal
of the judgment of the trial court, it is
evident that it was a well planned murder,
not on provocation but by taking the
deceased by surprise. The respondent no.
7 is alleged to have exhorted and the other
accused fired with country made pistols.
The intention therefore is indicated, not
on provocation, but as a pre-planned
commission of an offence. In such
circumstances to say that the elements of
moral turpitude did not exist is a total
misconception of law.

11. Apart from this it is doubtful as
to whether the Tehsildar had any authority
to decide the matter. Thus on all three
scores as concluded hereinabove, the
order dated 30.03.2007 is unsustainable.

12. There is no doubt that the
respondent no. 7 is holding a public
office. He was elected as Gram Pradhan
in spite of the fact that he was convicted
in a criminal case and has been awarded a
sentence of life imprisonment. The issue
as to whether such disqualification can be
3 All] Dhanai V. State of U.P. and others

755
computed in the given circumstances of a
case such as presently involved has
already been considered by this Court in
the case of Amrendra Singh Vs. State of
U.P. and others reported in 2005 (99) RD
746. In paragraphs 12 and 13 of the said
judgment it has been held that since an
accused/convict had not undergone the
sentence of imprisonment therefore the
computation
of
5
years
does
not
commence until and unless he serves out
the sentence. The contention advanced on
behalf of the respondent no. 7 is that an
appeal has been filed. The aforesaid issue
has also been answered in the aforesaid
decision in paragraph 11, which is quoted
below:

"11. Thus the mere fact that an
appeal has been filed by the petitioner
against his conviction which has been
admitted and he has been released on bail,
does not wipe out the disqualification
which has been attached on the strength
of conviction dated 13.06.1977. The
submission of the petitioner that the
conviction has not yet started since the
petitioner is on bail has also to be repelled
in view of the clear pronouncement of the
Apex Court as quoted above. The mere
fact that the petitioner has not yet served
his sentence he cannot be heard in saying
that he is not disqualified."

13. It has been held that mere filing
of an appeal would not take away the
disqualification incurred by the petitioner
by virtue of his conviction. The aforesaid
decision has taken notice of the decision
in the case of K. Prabhakaran Vs. P.
Jayarajan, in which it has been held that
once the conviction has been pronounced
and the sentence awarded, then the
disqualification is attached in view of the
provisions,
which
are
presently
in
consideration. Section 5-A of the Act
1947 clearly entails that a person shall be
disqualified for being chosen in the event
he is convicted. In the instant case, it is an
admitted position that the conviction has
been pronounced and sentence awarded.

14. The said issue has been
answered by the Apex Court in the case of
B.R. Kapur Vs. State of T. N. and
another reported in 2001 (7) SCC 231,
paragraphs 34 and 40 as follows:

"34. It is true that the order of the
High Court at Madras on the application
of the second respondent states: "Pending
criminal
appeals
the
sentence
of
imprisonment alone is suspended and the
petitioners shall be released on bail .....",
but this has to be read in the context of
Section 389 under which the power was
exercised. Under Section 389 an appellate
court may order that "the execution of the
sentence or order appealed against be
suspended ....:. It is not within the power
of the appellate court to suspend the
sentence; it can only suspend the
execution of the sentence pending the
disposal of appeal. The suspension of the
execution of the sentence does not alter or
affect the fact that the offender has been
convicted of a grave offence and has
attracted the sentence of imprisonment of
not less than two years. The suspension of
the execution of the sentences, therefore,
does not remove the disqualification
against the second respondent. The
suspension of the sentence, as the Madras
High Court erroneously called it, was in
fact only the suspension of the execution
of the sentences pending the disposal of
the
appeals
filed
by
the
second
respondent. The fact that she secured the
suspension of the execution of the
sentences against her did not alter or
756 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

affect the convictions and the sentences
imposed on her and she remained
disqualified
from
seeking
legislative
office under Section 8(3).

40. In much the same vein, it was
submitted
that
the
presumption
of
innocence continued until the final
judgment affirming the conviction and
sentence was passed and, therefore, no
disqualification operated as of now
against the second respondent. Before we
advert to the four judgments relied upon
in support of this submission, let us clear
the air. When a lower court convicts an
accused
and
sentences
him,
the
presumption that the accused is innocent
comes to an end. The conviction operates
that the accused has to undergo the
sentence. The execution of the sentence
can be stayed by an appellate court and
the accused released on bail. In many
cases, the accused is released on bail so
that
the
appeal
is
not
rendered
infructuous, at least in part, because the
accused
has
already
undergone
imprisonment. If the appeal of the
accused succeeds the conviction is wiped
out as cleanly as if it had never existed
and the sentence is set aside. A successful
appeal means that the stigma of the
offence is altogether erased. But that is
not to say that the presumption of
innocence continues after the conviction
by the trial court. That conviction and the
sentence it carries operate against the
accused in all their rigour until set aside in
appeal, and a disqualification that attaches
to the conviction and sentence applies as
well."

15. The next issue, which has been
raised is as to whether a writ petition
under Article 226 of the Constitution of
India praying for prohibiting or recalling a
person who is holding a public office can
be a issue or not. The aforesaid issue
came up for consideration before the
Apex
Court
in
the
case
of
K.
Venkatachalam Vs. Swamichan and
another reported in AIR 1999 SC 1723.
In which the Supreme Court ruled as
follows:

"26. The question that arises for
consideration is if in such circumstances
High court cannot exercise its jurisdiction
under Article 226 of the Constitution
declaring that the appellant is not
qualified to be member of the Tamil Nadu
Legislative
Assembly
from
Lalgudi
Assembly Constituency. On the finding
recorded by the High Court it is clear that
the appellant in his nomination from
impersonated
a
person
known
as
Venkatachalam
s/o
Pethu,
taking
advantage of the fact that such person
bears his first name. Appellant would be
even criminally liable as he filed his
nomination on affidavit impersonating
himself. If in such circumstances he is
allowed to continue to sit and vote in the
Assembly his action would be fraud to the
Constitution.
27. In view of the judgment of this
Court in the case of Election Commission
of India V. Saka Venkata Rao, AIR 1953
SC 210, it may be that action under
Article 192 could not be taken as the
disqualification
which
the
appellant
incurred was prior to his election. Various
decisions of this Court which have been
referred
to
by
the
appellant
that
jurisdiction of the High Court under
Article 226 is barred challenging the
election of a returned candidate and which
we have noted above do not appear to
apply to the case of the appellant now
before us. Article 226 of the Constitution
is couched in widest possible term and
3 All] Dhanai V. State of U.P. and others

757
unless there is clear bar to jurisdiction of
the High Court its powers under Article
226 of the Constitution can be exercised
when there is any act which is against any
provision
of
law
or
violative
of
constitutional
provisions
and
when
recourse cannot be had to the provisions
of the Act for the appropriate relief. In
circumstances like the present one bar of
Article 329(b) will not come into play
when cause falls under Articles 191 and
193 and whole of the election process is
over. Consider the case where the person
elected is not a citizen of India. Would the
Court allow a foreign citizen to sit and
vote in the Legislative Assembly and not
exercise jurisdiction under Article 226 of
the Constitution?
28. We are, therefore, of the view
that the High Court rightly exercised its
jurisdiction in entertaining the writ
petition
under
Article
226
of
the
Constitution
and
declared
that
the
appellant was not entitled to sit in Tamil
Nadu
Legislative
Assembly
with
consequent restraining order on him from
functioning
as
a
member
of
the
Legislative Assembly. The net effect is
that the appellant ceases to be a member
of the Tamil Nadu Legislative Assembly.
Period of the Legislative Assembly is
long since over. Otherwise we would
have directed respondent no. 2, who is
Secretary to Tamil Nadu Legislative
Assembly,
to
intimate
to
Election
Commission
that
Lalgudi
Assembly
Constituency seat has fallen vacant and
for the Election Commission to take
necessary steps to hold fresh election
from
that
Assembly
Constituency.
Normally in a case like the Election
Commission should invariably be made a
party."

16. A perusal of the aforesaid
decision leaves no room for doubt that the
Article 226 of the Constitution of India
would be clearly maintainable even if
there was a provision for filing of an
election petition.

17. Such an issue also came before
the Apex Court in B.R. Kapur's case
(supra) which involved the continuance of
the then Chief Minister of Tamil Nadu
Ms. J. Jayalalitha upon being convicted in
the
case
under
the
Prevention
of
Corruption Act, 1988. A writ of quo
warranto was prayed for as she had been
sworn
in
as
Chief
Minister.
The
contention was that she was ineligible for
being elected to the legislative assembly
having earned a conviction as such she
could not continue as Chief Minister. The
Apex Court in para 45 of the said decision
ruled as under:

"45. Our conclusion, therefore, is
that on the date on which the second
respondent was sworn is as Chief Minister
she was disqualified, by reason of her
convictions under the Prevention of
Corruption Act and the sentences of
imprisonment of not less than two years,
for becoming a member of the Legislature
under Section 8(3) of the Representation
of the People Act."

18. After having recorded the said
finding the Apex Court also ruled that in
such an event the Court is obliged to
intervene through a writ of quo warranto.
Reference be had to paras 51 to 55 quoted
below:

"51. If perchance, for whatever
reason, the Governor does appoint as
Chief Minister a person who is not
qualified to be a member of the
758 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Legislature or who is disqualified to be
such, the appointment is contrary to the
provisions
of
Article
164
of
the
Constitution, as we have interpreted it,
and the authority of the appointee to hold
the appointment can be challenged in quo
warranto proceedings. That the Governor
has made the appointment does not give
the appointee any higher right to hold the
appointment.
If
the
appointment
is
contrary to constitutional provisions it
will be struck down. The submission to
the
contrary-unsupported
by
any
authority-must be rejected.
52. The judgment of this Court in
Kumar Padma Prasad v. Union of India is
a case in point. One K.N. Srivastava was
appointed a Judge of the Gauhati High
Court by a warrant of appointment signed
by the President of India. Before the oath
of office could be administered to him,
quo warranto proceedings were taken
against him in that High Court. An
interim order was passed directing that the
warrant of appointment should not be
given effect to until further orders. A
transfer petition was then filed in this
Court and was allowed. This Court, on
examination of the record and the material
that it allowed to be placed before it, held
that Srivastava was not qualified to be
appointed a High Court Judge and his
appointment was quashed. This case goes
to show that even when the President, or
the Governor, has appointed a person to a
constitutional office, the qualification of
that person to hold that office can be
examined in quo warranto proceedings
and the appointment can be quashed.
53. It was submitted that we should
not enter a political thicket by answering
the question before us. The question
before us relates to the interpretation of
the Constitution. It is the duty of this
Court to interpret the Constitution. It must
perform that duty regardless of the fact
that the answer to the question would
have a political effect. In State of
Rajasthan v. Union of India it was said by
Bhagwati, J.: (SCC pp. 660-61, para 149)
"But merely because a question has a
political complexion, that by itself is no
ground why the court should shrink from
performing its duty under the Constitution
if it raises an issue of constitutional
determination.
Every
constitutional
question concerns the allocation and
exercise of governmental power and no
constitutional question can, therefore, fail
to be political ..... So long as a question
arises whether an authority under the
Constitution has acted within the limits of
its power or exceeded it, it can certainly
be decided by the court. Indeed it would
be its constitutional obligation to do so. It
is necessary to assert the clearest possible
terms, particularly in the context of recent
history, that the Constitution is suprema
lex, the paramount law of the land, and
there is no department or branch of
Government above or beyond it."
54. We are satisfied that in the
appointment of the second respondent as
the Chief Minister there has been a clear
infringement of a constitutional provision
and that a writ of quo warranto must
issue.
55. We are not impressed by the
submissions that the writ petitions for quo
warranto filed in this Court are outside
our jurisdiction because no breach of
fundamental rights has been pleaded
therein; that the appeal against the
decision of the Madras High Court in the
writ petition for similar relief filed before
it was correctly rejected because the same
issue was pending here; and that the
transferred writ petition for similar relief
should, in the light of the dismissal of the
writ petitions filed in this Court, be sent
3 All] Committee of Management and another V. State of U.P. and others

759
back to the High Court for being heard.
Breach of Article 14 is averred in at least
the lead writ petition filed in this Court
[WP (C) No. 242 of 2001]. The writ
petition which was dismissed by the High
Court and against which order an appeal
is pending in this Court was filed under
Article 226, as was the transferred writ
petition.
This
Court,
therefore,
has
jurisdiction to issue a writ of quo
warranto. We propose to pass the order in
the lead writ petition, and dispose of the
other writ petitions, the appeal and the
transferred writ petition in the light
thereof."

19. In the instant case, there being
no doubt about the admitted position of
disqualification having been incurred by
the respondent no. 7, there is no occasion
for this Court to dismiss the writ petition
on the ground of availability of any other
alternative remedy. Apart from this, it is
evident that the respondent no. 7 had been
restrained by this Court by an interim
order commanding the opposite parties
not to allow the said respondent to
function as Gram Pradhan. It is to be
noted that the order was passed by this
Court on 25th July, 2007 whereas the
District Magistrate took 5 months to pass
a consequential order. The aforesaid
situation
is
absolutely
unfortunate,
inasmuch as, the authorities are required
to obey the orders forthwith without any
hesitation. It is not understood as to why
the District Magistrate took 5 months to
obey the command of this Court.

20. In view of the aforesaid
conclusion drawn and in view of the fact
that the respondent no. 7 admittedly
suffers from an inherent disqualification
as provided under Section 5-A, a
declaration is hereby issued that the
election of the respondent no. 7 as Gram
Pradhan was illegal and invalid and he
shall not be construed to hold the public
office of Gram Pradhan of Gram
Panchayat Muriari, District Ghazipur
forthwith
as
it
stands
accordingly
annulled. The impugned order dated
30.03.2007 is also quashed.

21. The writ petition is allowed with
the directions aforesaid with no order as
to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.09.2009

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No.43575 of 2009

Committee of Management and another

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vinod Sinha
Sri Mahesh Sharma

Counsel forthe Respondents:
Sri P.N. Saxena
Sri K.C. Shukla
C.S.C.

Constitution
of
India
Article-226-
Appointment of authorized controller
without affording opportunity- while the
order of withdrawal of approval granted
to the selection of petitioner was stayed
by single judge with specific direction
restraining
the
authorities
from
interfering with functioning of petitioner
as
manage-special
appeal
also
dismissed-held-order impugned passed
in utter violation of principle of natural
justice-can not sustain.