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Appeal No.180 of 1959.
Appeal from the judgment and order dated June 30, 1955 of the former Nagpur High Court in Misc.
First Appeal No. 162 of 1949.
80 634 N. C. Chatterjee and B. P. Maheshwari, for the appellant.
G. C. Mathur, for the respondents.
March 29.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
This appeal, by certificate under articles 132(l) and 133(l)(c) of the Constitution, has been filed against an order of the High Court at Nagpur dated June 30, 1955.
Though the facts necessary to decide the appeal lie within a comparatively narrow compass, the case itself has had a long and somewhat unique history.
In July, 1922, the Municipal Committee, Khandwa, resolved to impose a tax on the trade of ginning and pressing cotton by means of steam, or mechanical process, and after sundry procedure, a notification was published on November 25, 1922 in the Central Provinces and Berar Gazette, imposing the tax.
Certain traders including the appellant, affected by the tax, filed suits seeking injunction against the Municipal Committee on the ground that the tax was invalid and illegal.
Meanwhile, the Municipal Committee had served notices on the present appellant, and demanded and recovered the tax for 1923 24.
The appellant then filed a second suit for refund of the tax paid by her on the ground that the imposition of the tax was illegal and ultra vires.
The suits had varying fortunes in the Courts in India, till they reached the Privy Council.
The Judicial Committee by its first decision remitted the cases for additional evidence, while the appeals were kept pending.
The decision of the Judicial Committee is reported in Radhakrishan Jaikishan vs Khandwa Municipal Committee (1).
After the additional evidence was received, the Judicial Committee pronounced its decision, which is reported in Badhakishan Jaikishan vs Municipal Committee, Khandwa (9).
The Judicial Committee held that the tax was not validly imposed by the Municipal Committee, and reversing the decree of the Judicial Commissioner, decreed the suits.
(1) (1933) L.R. 611 A. 125.
(2) 635 The Provincial Legislature then passed the Khandwa Ginning and Pressing Cotton Tax Validating Act 8 of 1938, validating, the tax.
The Act contained only one operative section, which read as follows: "2.
Notwithstanding anything contained in the Central Provinces Municipal Act, 1903, or the Central Province Municipalities Act, 1922, or any decree or order of a civil court, the tax on the trade of ginning and pressing cotton by means of steam or mechanical process within the limits of the Khandwa municipality which was imposed by Notification No. 2639 1298 VIII, dated the 21st November, 1922, shall be deemed to have been legally imposed from the date of its imposition to the date on which this Act comes into force.
Explanation.
All decrees or orders of a civil court directing a refund of the tax already recovered by the committee of the said municipality or restraining the committee from recovering the tax shall be deemed to have no legal effect.
" The appellant had, in the meanwhile, applied for the execution of the decrees, and the Validating Act was pleaded in bar.
This plea was upheld by the executing Court, but the High Court at Nagpur, on appeal, rejected it and ordered the executions to proceed.
The decision of the High Court is reported in Firm Radhakishan vs Municipal Committee, Khandwa (1).
The reason given by the High Court was that the Explanation, though not the operative part of the Validating Act, conflicted with 0.
45 R. 15 of the Code of Civil Procedure, and that the assent of the Governor General had not been obtained, as required by is.
107(2) of the Government of India Act, 1935.
Meantime, the Provincial Legislature had been dissolved, and the Governor had assumed all the powers of the Provincial Legislature under section 93 of the Government of India Act,.
The Governor, with the assent of the Governor General enacted the second Validating Act intituled the Khandwa Municipality (Validation of Tax) Act, 1941,(16 of 1941), which received the assent of the Governor Genera I on June (1) (1940) N.L.J. 638.
636 30, 1941, and was published in the C. P. and Berar Gazette on July 11, 1941.
That Act, omitting parts not relevant here, read as follows: "2.
The tax the imposition of which purported to be sanctioned in the Notification of the Local Government (Ministry of Local Self Government) No. 2639 1298 VIII, dated the 21st November 1922, shall be, and shall be deemed always to have been, validly recoverable by the Municipal Committee of Khandwa in respect of the period from the 21st November 1922 to the 31st March 1938 (both dates inclusive).
Where the net sum recovered from any person before the commencement of this Act on account of the said tax is less than the aggregate of the sum recoverable from such person, the balance shall be payable to the said Municipal Committee on demand made at any time after the commencement of this Act and, if not paid within fifteen days from the date of the demand, shall be recoverable by any method available under the Central Provinces Municipalities Act,, 1922, for the recovery of a tax imposed thereunder or by such other method as the Provincial Government may by rule prescribe.
For the purposes of section 3 the net sum recovered from any person means the aggregate sum recovered from such person less any sum refunded to him and less so much of the amount of any decree or order for the payment of money executed by him against the said Municipal Committee as represents an amount previously paid by him on account of the said tax.
Nothing in this Act shall preclude the execution against the said Municipal Committee of any decree or order for the payment of money arising out of a payment on account of the said tax but upon the execution of such decree or order so much of the amount thereof as represents a sum previously paid on account of the said tax shall be payable to and recoverable by the said Municipal Committee in accordance with section 3. 6.
The Khandwa Ginning and Pressing Cotton Tax Validating Act, 1938, is hereby repealed.
" 637 The Provincial Government framed a rule, which, shortly stated, provided for the recovery of the IV amount by way of execution application made to the very Court, which executed the decree.
The Municipal Committee deposited the decretal amount in Court, which was withdrawn by the appellant on furnishing security.
On August 7, 1947, the Municipal Committee filed its application under the rule for execution of the decree.
Objections were raised by the appellant, but were disallowed, and the Municipal Committee realised the amount of the tax from the surety.
The appellant had raised many objections, but we are concerned with one only, viz., that the Act was ultra vires the Provincial Legislature and consequently the Governor, being repugnant to a. 142 A, which was introduced in the Government of India Act, 1935, and which imposed a limit of Rs. 50 on taxes on professions, trades and callings after March 31, 1939.
On November 16,1949, an appeal was taken by the present appellant to the High Court at Nagpur.
This appeal was heard by Sinha, C. J., and Mudholkar, J. (as they then were).
Mudholkar, J. held that by the second Validating Act which was passed after March 31, 1939, the limit of Rs. 50 per annum imposed by the second sub section of section 142 A was exceeded, 'and that the Act was thus ultra vires, the Governor.
Sinha C., J., was of the contrary opinion.
The case was then laid before Deo, J., who agreed with Sinha, C. J., and the appeal was dismissed.
The appellant then obtained the certificate, and filed this appeal.
Section 142 A of the Government of India Act, 1935, is as follows: "142 A. (1) Notwithstanding anything in section one hundred of this Act, no Provincial Law relating to taxes for the benefit of a Province or of a municipality, district board, local board or other local authority therein in respect of professions, trades," callings or employments shall be invalid on the ground that it relates to a tax on income.
(2) The total amount payable in respect of any 638 one person to the Province or to any one municipality, district board, local board, or other local authority in the Province by way of taxes on professions, trades, callings, and employments shall not, after the thirty first day of March nineteen hundred and thirty nine, exceed fifty rupees per annum: Provided that if in the financial year ending with that date there was in force in the case of any Province or any such municipality, board or authority a tax on professions, trades, callings, or employments the rate, or the maximum rate, of which exceeded fifty rupees per annum, the preceding provisions of this sub section shall, unless for the time being provision to the contrary is made by a law of the Federal Legislature, have effect in relation to that Province, municipality, board or authority as if for the reference to fifty rupees per annum there were substituted a reference to the rate or maximum rate, or such lower rate, if any, (being a rate greater than fifty rupees per annum) as may for the time being be fixed by a law of the Federal Legislature; and any law of the Federal Legislature made for any of the purposes of this proviso may be made either generally or in relation to any specified Provinces, municipalities, boards or authorities.
(3) The fact that the Provincial Legislature has power to make laws as aforesaid with respect to taxes on professions, trades, callings and employments, shall not be construed as limiting, in relation to professions, trades, callings and employments, the generality of the entry in the Federal Legislative List relating to taxes on income." Simultaneously with the introduction of section 142 A, Entry No. 46 in the Provincial Legislative List, which had till then stood as "Taxes on professions, trades, callings and employments" was amended by the addition of the words "subject, however, to the provisions of section 142 A of this Act".
The impugned Act was passed by the Governor under section 90 of the Government of India Act, 1935.
Under sub section
(3) of that section, it had the same force and 639 effect and was subject to disallowance in the same manner as an Act of the Provincial Legislature assent led to by the Governor.
The impugned Act was enacted with the concurrence and assent of the Governor General and thus complied with all the formalities required for such enactment.
The powers of the Provincial Legislatures under the Legislative Lists have been the subject of numerous decisions by the Federal Court and also by this Court.
It has been pointed out that these powers are as large and plenary as those of Parliament itself.
These powers, it has been held, include within themselves the power to make retrospective laws; and as pointed out by Gwyer, C.J. in The United Provinces vs Atiqa Begum (1), the burden of proving that Indian Legislatures "were subject to a strange and unusual prohibition against retrospective legislation lay upon those who asserted it".
This has not been asserted in this case, as, indeed, it could not be, after the decision of the case cited by us.
In the case before the Allahabad High Court, out of which the appeal before the Federal Court had arisen [sub nom Mst.
Atiqa Begum vs U. P. (2)], it was held that retrospective legislation was not possible in view of the provisions of section 292 of the Government of India Act, 1935, which continued all law in force in British India immediately before the commencement of Part III of the Act, until altered or repealed or amended by a competent Legislature or other competent authority.
This view was not accepted by the Federal Court, which held that section 292 of the Act did not prevent Legislatures in India from giving retrospective effect to measures passed by them.
There have been numerous occasions on which retrospective laws were passed, which were upheld by the Federal Court and also by this Court.
It is not necessary to cite instances, but we refer only to the decision in M. P. V. Sundararamier & Co. vs The State of Andhra Pradesh (3), where this Court approved the dictum of the Federal Court.
Retrospective legislation being thus open to the (1) (2) A.I.R. (1940) All. 272.
(3) ; 640 Provincial Legislatures, the Act of the Governor had the same force.
Retrospective laws, it has been held, can validate an Act, which contains some defect in its enactment.
Examples of Validating Acts which rendered inoperative, decrees or orders of the Court or alternatively made them valid and effective, are many.
In Atiqa Begum 's case (1), the power of validating defective laws was held to be ancillary and subsidiary to the powers conferred by the Entries and to be included in those powers.
Later, the Federal Court in Piare Dusadh,v.
King Emperor (2) considered the matter fully, and held that the powers of the Governor General which were conterminous with those of the Central Legislature included the power of validation.
The same can be said of the Provincial Legislatures and also of the Governor acting as a Legislature.
The only question thus is whether the power to pass a retrospective and validating law was taken away by the enactment of section 142 A and the amendment of the Entry in the Government of India Act.
It is on this point that the difference in the High Court arose.
The amendment of the Entry is of no special significance, because it only subjects the otherwise plenary powers to the provisions of section 142 A. Apart from the implications arising from that section, the supremacy of the Legislature to pass retrospective and validating laws was unaffected.
We have thus to see what section 142 A enacted and to what extent it trenched upon the powers of the Provincial Legislature and the Governor.
Mr. N. C. Chatterjee, in arguing the case, adopted the line of reasoning of the minority view in the High Court.
He pointed out that a. 142 A was enacted to achieve three purposes.
The first was that it removed doubts whether the charge of tax on professions, etc., would be regarded as income tax.
The second was that it put a limit upon the powers of the Provincial Legislature to enact a law imposing a tax in excess of rupees fifty after March 31, 1939;and thirdly it preserved only existing valid laws already in force, which imposed a tax in excess of the amount indicated.
He (1) (2) 641 contended that the second sub section and the proviso covered the entire field, and a law passed after March 31, 1939, could not freshly impose a tax in excess of the limit and this was such a law.
Under the scheme of the Government of India Act, 1935, income tax, though a Central levy, was, under section 138 (1), distributable among the Provinces and for which an elaborate scheme prepared by Sir Otto Niemyer was accepted and embodied in the Government of India (Distribution of Revenues) Order in Council, 1936.
The Centre could levy a surcharge for federal purposes.
Taxes on trades, professions and callings, which were taxes already leviable by the Provinces under Schedule 11 of the Rules made by the Governor General in Council under .s. 80A(3)(a) of the Government of India Act, were also included in the Provincial Legislative List as a source of revenue for the Provinces.
It was, however, felt that these taxes might come into clash with tax on income in the Federal List, and also if unlimited in amount, might become a second tax on income to be levied by the Provinces.
It was to remove these contingencies that section 142 A was enacted.
Sub section (1) provided I ,hat, a tax on professions, etc., would not be invalid on the ground that it related to a tax on income.
Sub section (3) was a counterpart of sub section
(1), and provided that the, generality of the Entry in the Federal Legislative List relating to taxes on income would not be construed as in any way limited by the power of the Provincial Legislature to levy a tax on professions, etc.
The fields of the two taxes were thus demarcated.
No other implication arises from these two sub sections.
It was also apprehended that under the (guise of taxes on professions, etc., the Provincial Legislatures might start their own scheme of a tax on income, thus subjecting incomes from professions etc., to an additional tax of the nature of income tax.
A limit was therefore placed upon the amount which could be collected by way of tax on professions, etc., and that limit, was Rs. 50 per annum per person.
The, second 642 sub section achieved this result.
It was, however, realised that the tax being an old tax, there were laws under which the limit of Rs. 50 was already exceeded in relation to a Province, municipality, board or like authority, and the imposition of such a limit might displace their budgets after March 31, 1939.
A proviso was, therefore, added to the second sub section that if in the financial year ending with the thirty first day of March, nineteen hundred and thirty nine there was in force in the case of any Province, etc., a tax on professions, trades, callings or employments the rate or the maximum rate of which exceeded Rs. 50 per annum, the provisions of the second sub section shall have effect, (unless for the time being provision to the contrary was made by a law of the Federal Legislature) as if instead of Rs. 50 per annum there was substituted a reference to the rate or maximum rate exceeding Rs. 50.
Where no such law was passed by the Federal Legislature, the tax even in excess of Rs. 50 continued to be valid.
There can be no doubt that if a law was passed after the amendment and sought to impose taxes on professions etc., for any period after March 31, 1939, it had to conform to the limit prescribed by section 142A (2).
The prohibition in the second sub section operated to circumscribe the legislative power by putting a date line after which a tax in excess of Rs. 50 per annum per person for a period after the date line could not be collect id unless it came within the proviso.
But neither sub section
(2) nor the proviso speaks of a period prior to March 31, 1939.
The sub section speaks only of "the total amount payable. after the thirty first day of March, nineteen hundred and thirty.
nine".
These words are important.
They create a limit on the amount leviable as tax for a period after that date.
But if a law was passed validating another which imposed a tax for a period prior to the date indicated, it would be taxing professions etc., in excess of Rs. 50 not after March 31, 1939, but before it.
Neither the Entry nor the section either directly or indirectly prohibited this, nor did they create any limit for the prior period.
The Validating Act, though 643 passed in 1941, can be read only as affecting a period for which there was no limit.
If the sub section said that tax shall not be payable in excess of Rs. 50 without indicating the period or date, the argument would have some support, but it puts in a date, and the operation of the prohibition is confined to a period after that date.
The Validating Act, being thus completely within the powers of the Governor, could remove retrospectively the defect in the ' earlier Act.
Though it reimposed the tax from the date of the earlier Act, it took care to impose the tax for a period ending with March 31, 1938.
The impugned Act did not need the support of the proviso, because it did not fall within the ban of the second sub section.
In our opinion, the Validating Act of 1941 was within the powers of the Governor, and was a valid piece of legislation.
The appeal fails, and is dismissed with costs.
Appeal dismissed.
| The property in dispute was granted in inam to the ancestors of the predecessors in interest of the plaintiff respondents for the performance of parak service in certain temples but the grantees alienated considerable portion of the property and ceased to perform the parak service.
On being moved by the trustees under section 44 B(2)(a)(i) and (ii) of the Madras Hindu Religious Endowments Act, 1927, the revenue authorities after holding an enquiry ordered resumption of the inam lands and regranted them to the temple.
The alienees thereupon filed a suit in which their main contention was that the revenue authorities had no jurisdiction to order the resumption of the inam under S.44 B of the Act which is in these terms "Any exchange, gift, sale or mortgage and any lease for a term exceeding five years, of the whole or any portion of any inam granted for the performance of a charity or service connected with a math or temple and made, confirmed or recognised by the British Government, shall be null and void.
" Both the trial court and the High Court on appeal held that the inam was a personal inam burdened with service to the temple and the case did not fall under section 44 B of the Act.
On appeal by the trustees with a certificate of the High Court, Held, that the distinction between a grant for an office to be remunerated by the use of land and a grant of land burdened with service is that the former is a case of service grant and is resumable when the service is not performed; the latter is not a service grant as such but a grant in favour of a person though burdened with service and its resumption will depend upon whether the circumstances in which the grant was made establish a condition that it was resumable if the service was not performed.
Shrimant Lakhamgouda vs Raosaheb Baswantrao, (1931) LXI M.L.J. 449, referred to.
Though on a wide interpretation section 44 B(1) might also include personal inams burdened with service it is really confined to inams directly granted to the temple or service inams for the purpose of a temple or math or inams the whole income of which is meant for charity and does not include personal inams burdened with service.
Such inams would continue to be dealt with under Board 's Standing Order 54 class (b) as introduced by the amendment to that order.
|
vil Appeal Nos. 1274 to 1278 of 1984.
From the Judgment and Order dated 27.5.81 of the Punjab and Haryana High Court in R.F.A. Nos.
688 to 692 of 1979.
Rajinder Sachar and K.C. Dua for the Appellants.
S.P. Goel, Rana Ranjit Singh and Mahabir Singh for the Respondents.
The Judgment of the Court was delivered by RAY, J.
These appeals on special leave are directed against the judgment .and order dated May 27, 1981 passed in R.F.A. Nos.
688 to 592 of 1979 and 1112 of 1979 by the High Court of Punjab and Haryana at Chandigarh.
The short ques tion raised in these appeals is whether the appellants are entitled to any compensation 'for nursery plants existing on the land at the time of acquisition as well as at the time of notification published under Section 4 of the Land Acqui sition Act, 419 1894.
Secondly, whether the valuation made in respect of the mother plants is low and the same needs to be increased in accordance with the report of the Horticulture Expert.
The facts of these appeals in short, are as follows.
A notification under section 4 of the Land Acquisition Act, 1894 was published on March 24, 1971 for acquisition of the lands in question in village Faridabad, Hadbust No. 123, Tehsil Ballabgarh, District Gurgaon for a public purpose viz. for planned development of residential sector No. 19 by the Haryana Government.
Thereafter, a declaration under Section 6 of the said Act was published vide Notification No. LAC 71/NTLA/376 dated January 18, 1972 in Haryana Gov ernment Extraordinary Gazette.
The Government declared that the Government was satisfied that the said land was needed at public expenses for a public purpose namely for the planned development in the area of this village Faridabad.
Thereafter a notice under Section 9 and 10 was issued call ing upon the owners and other interested persons to file their claims in respect of the interest in the land and also other particulars as regards their claims for compensation for such interest.
The owners of the land and other inter ested persons filed their claims demanding compensation for the land @ Rs.35 per sq.
and also claimed compensation for the nursery plants and potted plants in the land ac quired.
The Land Acquisition Collector awarded compensation in respect of the land acquired @ Rs.900 per Biswa.
The Land Acquisition Collector held that the mother plants and trees were irremovable and as such he assessed the value thereof at Rs.2,41,576.
He also awarded the shifting charges for the shifting of potted plants amounting to Rs. 1,773.20 paise together with compulsory charges @ 15% of the amount award ed.
This award was made by the Land Acquisition Collector on February 22, 1975.
The possession of the acquired land was taken by the Government.
The Land Acquisition Collector also granted six months ' time or any such further period as extended by the Government to enable the appellants to remove the nursery plants as well as the potted plants from the acquired land.
The Collector further stated in the award that the nursery plants can be removed from the land and the same be sold by the owners to the customers.
So no compensa tion was awarded in respect of these plants as well as in respect of the potted plants.
The appellants filed five claim petitions being Petition Nos.
191/85 to 195/85 of 1973/78 in the Court of the Addi tional District Judge, Gurgaon.
The 2nd Additional District Judge, Gurgaon after hearing 420 the parties and also considering the evidences enhanced the rate of compensation of the acquired land (C) Rs. 10 per sq.
It has also been held that the appellants will be enti tled to double the compensation for trees and plants as given by the Land Acquisition Collector.
He also ordered that the appellants shall be entitled to solatium at the rate of 15% on the enhanced amount of compensation on these two items.
In all other respects the impugned order made by the Land Acquisition Collector was upheld.
He further or dered that the appellants will be entitled to recover inter est @ 6% from the date of compensation to the date of reali zation of the enhanced amount to be paid to them and the appellants shall also be entitled to recover the proportion ate costs of the petitions from the Government.
The appellants filed R.F.A. Nos.
688 to 692 of 1979 in the High Court of Punjab and Haryana.
The High Court fixed the value of the acquired land considering the potentiality of the land @ Rs. 16 per sq.
The total area of the land acquired in these appeals being 11.38 acres, at the rate of Rs. 16 per sq.
the value of the land acquired comes to Rs.8.8 lakhs.
The Land Acquisition Collector awarded a sum of Rs.2,41,576 for the trees, which value had been doubled by the Court below.
The High Court held that no case was made out for doubling the value of the trees in the evidence recorded before remand.
It has been further observed by the High Court that the appellants ' own case was that most of their income was from potted plants, flowers and nursery plants, the potted plants gave the maximum income, as was shown by the vouchers produced by the appellants on record.
The potted plants had been taken away by the appellants after acquisition.
Similar was the position of nursery plants.
The High Court, therefore, held that the value awarded by the Land Acquisition Collector would be for the trees and since no justification was made, the Court below was in error in doubling the value of the trees.
The High Court, therefore, valued the acquired land at the enhanced rate of Rs. 16 per sq.
, for the trees the compensation awarded by the Land Acquisition Collector was directed to be paid to the appellants and the enhancement awarded in re spect of trees by the Court below was set aside.
It was further ordered that the appellants would be entitled to solatium at the rate of 15 per cent and interest at the rate of 6% per annum from the date of taking of possession till payment thereof.
The appeals were thus disposed of.
Against this judgment and decree passed in R.F.A. Nos.
688 to 692 of 1979, the appellants filed five Special Leave Petitions before this Court.
On February 27, 1984 this Court granted Special Leave 421 confined only to the compensation for mother plants and nursery plants.
Mr. Rajinder Sacbar, learned counsel appearing on behalf of the appellants has made two fold submissions before this Court.
His first submission is that the Land Acquisition Collector as well as the Courts below were wrong in not granting any compensation for the nursery plants.
Nursery plants were grown in the nursery on the acquired land for the purpose of rearing them for a certain period and there after selling those plants to the customers on taking out the same from the nursery.
There has been an inspection and a list was prepared of the various varieties of fruits and flower plants existing on the acquired land at the time of acquisition.
He further submitted that the value of these various plants has been assessed by Shri Som Dutta Diwan, Deputy Director, Horticulture/Vegetable, Haryana, Chandi garh, who was requested to assess the value of all sorts of trees.
Copies of the assessment made by him had been filed before the Land Acquisition Collector and it will be evident from the said assessment lists that each variety of trees has been assessed separately with reference to the total number of those trees.
It has been submitted by Mr. Sachar in this connection that these nursery plants if taken out of the land will die after two three days.
The appellants have got no other land where they could plant these plants and keep them alive.
It has, therefore, been submitted by him that the High Court was wrong in refusing to assess the value of the nursery plants and to award compensation in respect of the same.
Mr. Sachar next submitted that the compensation awarded with regard to the mother trees by the Land Acquisition Collector has been made arbitrarily without reference to the market price of these trees.
It has been further submitted by referring to the judgment and order of the 2nd Additional District Judge, Gurgaon that the 2nd Additional District Judge held that the.
appellants were entitled to double the compensation under the head 'value of trees and plants ' as assessed by the Land Acquisition Col lector.
The High Court arbitrarily and wrongly rejected this on the mere ground that there was no justification for doubling the compensation as awarded by the Land Acquisition Collector in respect of the mother trees and plants.
It has, therefore, been submitted by Mr. Sachar that the amount of compensation awarded by the Land Acquisition Collector in respect of the mother trees should be doubled and the com pensation for the nursery plants should also be assessed on the basis of the value of the plants as assessed by the Deputy Director of Horticulture.
422 Mr. S.P. Goel appearing for the respondent State has submitted that the land acquired was not treated as an agriculture land in assessing the market value of the same.
It has been taken as urban land and considering its potenti alities, the High Court assessed the value of the land @ Rs. 16 per sq.
In such circumstances, the value of the land being assessed on considering its potentiality, the question of valuation of the mother trees as well as of the nursery plants does not at all arise.
The valuation of the mother trees can at best be assessed at the value assessed by the Land Acquisition Collector.
There is, therefore, no ground for interference with the amount of compensation awarded by the Land Acquisition Collector and upheld by the High Court.
It has been next submitted by the learned counsel for the State that the nursery plants are planted and grown for the purpose of selling the same to the customers after taking them out from the land.
These nursery plants are never planted for the purpose of growing them into big trees or mother plants.
The High Court has rightly held that like the potted plants these nursery plants can easily be removed from the nursery as the purpose of growing these plants is to sell the same to the customers.
These plants can be removed and sufficient time had been granted by the State by permitting the appellants to remove these plants from the acquired land.
It has, therefore, been submitted that the High Court has rightly rejected the claim of the appellants for compensation in respect of the nursery plants.
We have considered in depth the arguments advanced by the learned counsel for both the parties and we have also considered very carefully the weighty reasonings given by the High Court as well as by the Land Acquisition Collector.
It is obvious that the land acquired though agriculture land was taken for assessment of its market value not as agricul ture land but as land with high potentialities i.e. as urban land and, therefore, the market value of these lands has been fixed after considering its potential value @ Rs. 16 per sq.
The appellants did not at all dispute this value and on the other hand they withdrew the entire compensation award for the value of these lands.
In these circumstances, we find that there is much substance in the submissions made on behalf of the State that the mother trees should be valued as wood and the value has been rightly assessed as such by the Land Acquisition Collector in his award and the same has been upheld by the High Court.
Moreover, the find ings of the Collector that the nursery plants can be taken out of the land and sold to the customers like potted plants and as such no compensation can be awarded is in our consid ered opinion quite in accordance with law.
In these cir 423 cumstances, we do not find any infirmity or arbitrariness in the findings arrived at by the High Court and as such there is no merit in the contentions made on behalf of the appel lants in these appeals.
We, therefore, uphold the findings of the High Court and dismiss the appeals without any costs.
P.S.S Appeals dis missed.
| The appellants ' land was acquired under the Land Acqui sition Act on March 24, 1971 for planned development as residential area.
They were then running a plant nursery on the said land.
A large number of potted plants, mother plants and trees also existed there.
They demanded compensa tion for the land at the rate of Rs.35 per sq.
They also claimed compensation for nursery plants, potted plants mother plants and trees.
The Land Acquisition Collector awarded compensation in respect of the land at the rate of Rs.900 per Biswa.
He held that the mother plants and trees were irremovable and as such assessed the value thereof at Rs.2,41,576.
He also awarded charges for the shifting of potted plants.
In re spect of the nursery plants he took the view that the appel lants were not entitled to any compensation as these could be removed from the land and sold.
The District Judge enhanced the rate of compensation for the acquired land at the rate of Rs. 10 per sq.
and also doubled the compensation for trees and mother plants.
The High Court considering the potentiality of the acquired land fixed its value at the rate of Rs. 16 per sq.
It took the view that the court below was in error in doubling the value of the trees as no case was made out in the evidence recorded and therefore set aside the enhance ment.
In these appeals by special leave it was contended for the appellants that the nursery plants if taken out of the land would die after two three days and the appellants had got no other land where they could plant them and keep them alive.
It was further contended that the compensation with regard to mother trees had been awarded with 418 out reference to their market price and that the High Court had arbitrarily rejected the enhancement in the said compen sation granted by the District Court.
Dismissing the appeals, the Court, HELD: 1.
The finding of the Land Acquisition Collector that the nursery plants could be taken out of the land and sold to the customers like potted plants and as such no compensation could be awarded was quite in accordance with law.
Sufficient time had been granted by the State by per mitting the appellants to remove these plants from the acquired land.
Their claim was, therefore, rightly rejected by the High Court.
[422G H, D E] 2.
The land acquired though agricultural land was taken.
for assessment of its market value @ Rs. 16 per sq.
not as agricultural laud but as laud with high potentialities i.e. as urban laud.
The appellants did not at all dispute this value.
On the other hand they withdrew the entire compensation award for the value of these lands.
In these circumstances, it could not be said that the value of mother trees has been wrongly assessed as wood.
The appellants were, therefore, not entitled to enhancement In the value of trees.
[422F G]
|
minal Appeal No. 2244 of 1959.
Appeal by special leave from the judgment and order dated 1959, May 5 of the Allahabad High Court in Criminal Appeal No. 1049 of 1958 and Government Appeal No. 1766 of 1958.
Jai Gopal Sethi, O. L. Sareen and B. L. Kohli for the Appellants.
G. C. Mathur and C. P. Lal fur the Respondent.
March 9.
The Judgment of Kapur and Das Gupta, JJ. was delivered by Kapur, J. Dayal, J., delivered a separate Judgment.
KAPUR, J.
The appellants and Prithviraj Singh were tried by the Sessions Judge, Hamirpur, the former for offences under section 302, read with section 149 and section 201 read with section 149 and of them some under 8. 147 and others under section 148 and the latter under section 201 read with section 149 of the Indian Penal Code.
From amongst the accused persons Nathu Singh was acquitted and so was Prithviraj Singh but ten others were convicted under section 302 read with section 149 and section 201 read with section 149 and two of them were convicted under section 147 and others under 9. 148.
The Sessions Judge sentenced the convicted persons to imprisonment for life under section 302 read with section 149, to three years ' rigorous imprisonment under section 201 read with section 149, two of them to two years ' rigorous imprisonment under section 141 and others to three years ' rigorous imprisonment under section 148 but all the sentences were concurrent.
Against that order the convicted persons took an appeal to the High Court at Allahabad and the State appealed against the acquittal of Nathu Singh and also applied for enhancement of sentences against the con victed persons.
The High Court dismissed the appeal of the convicted persons and allowed the appeal against Nathu Singh.
Thus 11 persons were convicted and sentenced to imprisonment for life 771 and to other concurrent sentences and they have appealed to this court by special leave.
The appellants and Prithviraj Singh are residents of village Kharela and they were on terms of enmity with the deceased Raja Ram Singh.
On July 28, 1957, at about 3 30 p.m. the appellants collected in front of the house of Kali Charan appellant, two of them armed with lathis, two with pharsas and seven of them had spears.
Dharam Singh appellant asked RajaRam Singh as to why he, had been abusing him to which the reply given by Rajaram Singh was that he was not in the habit of abusing any body at his back and if he felt like abusing any body he would do so to his face and he fixed his spear in the ground and stood there.
Appellant Dharam Singh threw away the spear, rushed towards Rajaram Singh, caught hold of him by the waist and asked his ten companions to beat the enemy.
Rajaram Singh was thereupon attacked with various weapons as a result or which he, fell down severely injured.
He was still alive when appellants Sheo Rattan Singh and Gulab Singh struck on his neck with pharsas and partially severed it.
At the instance of Dharam Singh, his cart was brought by others and Prithviraj Singh also arrived at the spot.
Dharam Singh asked him to go home and bring his Dharam Singh 's) gun which Prithviraj Singh did and handed, over the gull and the bandolier of cartridges to Dharam Singh who loaded the gun, put the dead body of the deceased on the bullock cart and the ten persons then took away the dead body from the village and it is alleged that they left it in a nullah near village Jataura.
There is a police post in the village of which Head Constable ' Shivsewak Singh is incharge and there is also is an armed guard there.
At 3 45 p.m. Shyam Lal who is the brother in law (wife 's brother) of Rajaram Singh made a report at the police 772 post and at 7 30 p.m. he made a report at the police station Muskara which is 8 miles away from village Kharela.
This occurrence was witnessed by five persons P. W. Babu Singh.
P. W. Shivnath Singh, P. W. Ram Narain, P. W. Mulain Singh and P. W. Brij Rani.
While the corpse was being taken in the bullock cart three witnesses deposed to having seen it being carried in the cart.
They are Ram Nath P. W. 21, Tijiwa P. W. 22 and Jurkhan P. W. 23.
In the High Court the appeal was heared in the first instance by Cak and Verms JJ.
There was a difference of opinion between the learned judges and the matter was referred under section 429, Criminal Procedure Code to Desai J., who agreeing with Cak J., upheld the conviction of the ten appellants who were convicted by the Sessions Judge and set aside the acquittal of Nathu Singh.
Thus 11 persons were convicted and they have appealed to this court by Special Leave.
It was contended on behalf of the appellants that under section 429, Criminal procedure Code where there is difference of opinion between the judges constituting a Division Bench and the matter is referred to a third judge the opinion of the Judge acquiting the accused has to be treated in the same manner as the judgment of acquittal by the trial court and even though it may not be necessary 'to find compelling reasons for disagreeing with the opinion of the acquiting judge it is necessary that the judgment should show that all the findings and the reasons given in the opinion of the acquitting judge are mentioned in the opinion of the third judge and the judgment should indicate the reasons for disagreeing with the opinion of the acquitting Judge.
We can see no warrant for this contention, Section 429 of the Criminal Procedure Code Provides: 773 " When the Judges composing the Court of appeal are equally divided in opinion, the case, with their opinions thereon shall be laid before another judge of the same Court, and such Judge, after such hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion".
All it says is that the opinion of the two judges who disagree shall be laid before another judge who after giving such hearing, if any, as he thinks fit, shall deliver his opinion and the judgment or order should be in accordance with such opinion.
Now it is obvious that when the opinions of the two Judges are placed before a third Judge be would consider those two opinions and give his own opinion and the judgment has to follow the opinion of the third judge.
Consequently on that opinion is based the judgment of the court.
For all practical purposes the third Judge must consider the opinions of his two colleagues and then give his own opinion but to equate the requirements with appeals against acquittals is not justified by provisions of section 429 or by principle or precedent.
Desai J., was of the opinion that the eye witnesses had seen the occurrence and their evidence must be accepted but there are certain circumstances proved by the evidence on the record which when considered materially affect the force of the finding in regard to oral evidence and which have to be considered in order to adjudicate on the correctness or otherwise of the prosecution case.
The first point is whether the murder was committed in the village as is submitted by the prosecution? According to the prosecution the murder was committed in the village at 3.30 p.m. in the mouth of July in broad daylight on a public road and the number of injuries caused to Rajaram Singh are such that there must 774 have been a fair amount of blood spilt at the place.
According to the prosecution evidence after the murder was committed Dharam Singh sent for his bullock cart which must necessarily have taken a little time.
Meanwhile Babu Singh P.W. went and informed Shyam Lal who went to make a report at the police post in the village.
It is stated to be about 4 furlongs away.
It is contended by the appellants that if the murder had taken place as stated and there was an armed guard in the village, it would have been difficult for the appellants to have sent for the cart, to put the dead body on it and take it out of the village and that within the time between the commission of the murder and the time of the making of Report at the police post; that there is a considerable doubt about the occurrence having taken place in the village because no blood was found at the place of the murder; at least no evidence has been produced to show that there was any blood there.
On behalf of the prosecution it was submitted that the evidence discloses that after the murder the blood was washed away by throwing a, good deal of water and plastering the place and thus no blood was found when the place was visited by the investiga ting Sub Inspector.
It was also submitted that some blood was found on the wall of the chabutra in front of the house of the appellant Kali Charan which was collected in a small tin and was sent to the Chemical Examiner.
It may here be pointed out that when the dead body was to the place where it was found 6 1/2 miles away from the place of occurrence the neck was cut and taken away and only the headless body was 'found there.
That place was in the dry bed of a nullah.
According to the prosecution; witness Ram Avtar there plenty of blood there but P. W. Raziuddin stated that blood was found in drops lying in adjacent places but it was not found in heavy quantities at one place.
Blood stained earth was taken from the 775 wall of the chabutra of Kali Charan.
Unstained earth was also taken from the same place which was also put in a small tin.
Blood stained earth was also taken from the place in the bed of the nullah where the dead body was found.
All these tins were sent to the Chemical Examiner.
It is not quite clear what exactly was his finding but he found that the earth in two tins was blood stained but blood has not been shown to be of human origin.
It is not clearly shown as to what was the extent of the blood on the wall of the chabutra of Kali Charan.
Desai J., was of the opinion that a lot of blood must have been spilt at the place where the murder was stated to have been committed but Kali Charan poured water over the spot, therefore no blood was visible at the spot and the Investigating Officer found the place wet when he examined it at night and that no explanation was given by the appellants as to bow blood came to be on the wall of the chabutra.
It does not appear from the examination of the appellants under section 342 that any question was put to Kali Charan in ragard to the finding of the blood on the wall of his chabutra nor was any of the other appellants asked this question.
The High Court should not have used this fact against the appellants.
Another circumstance which has been pressed at great length on behalf of the appellants is that no attempt was made to take any earth from the place and no investigation was made as to whether there was any blood at the spot or not.
If at man 's neck is cut and he is caused the number of injuries that the deceased had, the amount of blood spilt there must have been in a fairly large quantity and it is difficult to imagine that just by pouring water over the spot and plastering it no blood was visible and even if it was not visible no blood could be found if any effort was made.
No attempt seems to have been made to take the earth from there and send it.
to the Chemical Examiner for the purpose 776 of examination.
Desai J., has observed that the Investigating Officer found the ground to be wet.
The Investigating Officer came there at II p.m. on the night of occurrence which was a dark night and if he found the place to be wet it is not clear whether it was wet because of water or because of blood.
It was the month of July when any water poured at 3 30 p.m. should have dried up by 11 p.m. Anotier point which has been pressed on behalf of the appellants is that no trail of blood was discovered from the place where the murder is alleged to have been com.
mitted to the place where the dead body was ultimately found in the dry bed of the nullah.
Although the evidence is conflicting there was some amount of blood at the place where the dead body was found.
The head had been completely severed and taken away.
In the cart also there was some blood and a blood stained axe was also found there.
Therefore if the head was out at the place where the dead body was found and there was blood oozing out at that time it is difficult to imagine that there would not be any blood oozing all the time and there would be no trail of blood.
But none has been found.
It may be pointed out that there was blood on the planks of the cart on which the dead body is alleged to have been taken.
According to the books on Medical Jurisprudence blood does not coagulate till after four hours.
Therefore the submission of the appellants that there should have been some trail of blood from the place where the murder was committed to the place where the dead body was taken has considerable force.
The judgement of Desai, J., seems to indicate that the onus of certain matters was placed on the appellants which is unwarranted by law.
For instance, the learned Judge said that the appellants were asked in the Magistrate 's court about the 777 evidence that they had killed Rajaram Singh at 3 30 p.m. in the abadi and had then carried away his dead body in the cart of Dharam Singh.
and they contented themselves by denying all the allegations and none of them had said that the deceased was not murdered in the abadi and in the day time.
The learned Judge then observed: "If he was not murdered in the adadi and in day time they must have heard when and where he was murdered.
Their statements were not evidence governed by the Evidence Act and they could say that they had heard.
Yet when they refrained from saying anything about it, it just shows that they had not heard that Raja Ram Singh was murdered elsewhere and at another time".
This, in our opinion, was an erroneous approach to the question.
At another place in his judgment the learned Judge again seems to have placed the onus on the appellants and that was concerning the ownership of the cart in which the dead body was taken.
The finding of the bloodstained bullock cart was relied upon by the prosecution in support of their case.
That evidence was attacked on the ground that there was no identification parade of the cart and the bullocks.
The learned Judge said in regard to this matter that there was no necessity for any identification proceedings because if the Investigating Officer believed the witness who stated that the cart belonged to Dharam Singh then he was not required to cross examine the prosecution witnesses by asking them to identify the cart and the bullocks.
He then observed: "Dharain Singh, Babu Singh and Prithviraj Singh appellants denied that the cart and the bullock produced were theirs but did not say to whom they belonged and how they were obtained by the police.
They also did 778 not produce any evidence to rebut the evidence of the prosecution witnesses about their ownership".
In that very connection the learned Judge has also relied on the fact that the bullock cart was brought from the bara of Ram Adhin Singh and the site plan prepared by S.H.O. showed that there, were signs of fresh removal of the bullock cart from the bara.
Now this again is not admissible evidence because nothing shown on the plan unless deposed to by witnesses is evidence against the appellants.
It was so held in Santa Singh vs State of Punjab (1) and Tori Singh vs State of Uttar Pradesh (2).
There is another significant fact in regard to this cart According to prosecution witness Babu Singh, the bullock which were yoked in the cart belonged to Ram Adhin Singh when he was asked to identify he said one of them was the same but the second one was not the same which was yoked in the cart at the time when the dead body was being taken.
It is an extraordinary circumstance that the bullocks which are alleged to have belonged to Ram Adhin Singh, and which were yoked to the cart carrying the dead body, which all the time remained in police custody got changed so that one of the bullocks is not the same.
Another circumstance which is equally significant is the finding of the yoke of prosecution witness Tijiwa with the cart.
It is stated that Tijiwa met the appellants when they were driving the cart away from the village.
At the time Tijiwa was returning home bringing his employers cart.
Tijiwa 's yoke was borrowed because the yoke of the cart driven by the appellants got broken and Tijiwa 's yoke was found at the place where the cart was subsequently dis covered.
What happened to the broken yoke is not shown, how Tijiwa took his own cart back without the yoke to the village is not shown.
This circum (1) A.I. (2) [1962] 3S.C.R. 779 stance does not seem to have received the attention of the High Court which it deserved.
The appellants have vigorously pressed before us another argument which deals with the First Information Report and investigation by the police.
According to the prosecution the occurrence was at about 3 30 p.m. and an information was given at the police post at 3 45 p.m. and according to the evidence of the prosecution witness Raziuddin, the Head Constable and two constables of the armed guard proceeded to recover the dead body and follow the murderers by following the track of the cart.
They left the police post of Kharela at 3 45 p.m., and from there they went to the house of the appellant Kali Charan and then they followed the track of the bullock cart.
At a distance of four or five paces from the place of occurrence they met Pancham Singh who does not seem to be a witness; so what he stated to the constable is not evidence.
They then followed the track of the bullock cart and found the dead body lying in the nullah about three furlongs away from the ' abadi of village Jataura.
The dead body was headless.
They left the two armed guards at the place and proceeding a little further they found the bullock cart with the two bullocks and there was no one near the bullock cart.
Head Constable Shivsewak Singh bad gone at 12 noon to Balatal for appearing as a witness.
There are no entries in the Police Duty Register at the Police Post as to his return nor as to his going with Raziuddin and others following the track of the cart.
Leaving the armed guard at the place where the dead body was found Head Constable Shivsewak Singh went to Jataura and called Chowkidar Sumera.
At about 10 or 11 in the night he sent Chowkidar Sumera to Thana Charkhari to give information and it is stated that as a result of the 780 information given by Chowkidar Sumera the Sub Inspector in charge of Charkhari Police Station came to the place where the dead body was found and he started the investigation on the morning of July 29, 1957.
He took the dead body into possession, held the inquest report and took bloodstained earth and the cart into possession.
There is no reason why the Head Constable should have sent Sumera to the police station Charkhari when the offence was committed in the village in the jurisdiction of police station Muskara.
It is next stated that the Officer in Charge of Muskara Police Station, Sub Inspector Basu Deo came to village Kharela at 11 p.m.
There is no entry in the Register at the Police Post showing his coming to the place of the occurrence.
He has deposed that he went to the place of occurrence and noticed that outside the house " 'Some water appeared to be lying and at places it appeared that the ground had been washed with hand and water".
How in the middle of a dark night he could have seen all that has been explained and the appellants rightly challenge his very coming to the village at that time.
From these circumstances the appellants submit that there is a great deal of doubt as to the time of the making of the First 'Information Report and the time and place of murder.
We have these facts which cast a good deal of doubt as to the authenticity of the report or the investigation by the police of Muskara into the alleged occurrence.
(1) if the information was given at the police post soon after the occurrence, as is alleged, there is no reason why the police should not have reached the place and prevented the removal of the dead body which was after all being carried on a bullock cart.
(2) It is not shown by the entries of the Duty Register that the Head Constable returned from Balatal at 4 O 'Clock and came back to the village 781 (Kharela) and then proceeded to follow the track of the bullock cart in which the dead body was alleged to have been carried.
(3) There is no reason why when the dead body was found near the nullah at about 6 30 p.m. the Head Constable should have sent the Chowkidar of Jataurs to Police Station Charkhari to make a report at that place and why the investigation should have.been carried on by the police of that police station and not by the police of Muskara Police Station when the latter had come to know of it about 6 30 p.m. that murder had been committed in their jurisdiction.
(4) There is no reason why the Police Sub Inspector Kharela Police Post should go at 11 p.m. and in a most casual manner to the place of occurrence, see water lying at the place and that in the hot mouth of July.
Why the next day he did not take any earth from that place is also a very significant question.
(5) There is total absence of blood at the place of the occurrence.
It is stated that there was some blood on the wall of chabutra of Kali Charan what was the extent and nature of the blood is not shown.
How far the chabutra was from the exact place of murder is not shown.
(6) There is no evidence at all that any earth was opened with human blood.
(7) There is total absence of entries in the Duty Register.
Therefore the coming of Sub Inspector Basu Deo is also doubtful.
There is no indication that there was any trail of blood even for a short distance from the place of occurrence.
(8) The evidence in regard to the borrowing of the yoke from prosecution witness Tijiwa is highly suspicious in the circumstances of this case.
782 (9) Lastly we find that the approach of the learned Judge to the case is not in accordance with law in that as to two or three matters he has approached the question as if it is for the defence to disprove certain facts.
For instance the failure of the defence to produce reliable evidence to contradict eye witnesses there failure to state that the murder was not committed in the village ; there failure to say as to whom the cart belonged if it did not belong to Dharam Singh.
Desai J., was of the opinion that no blood was found by Raziuddin on the way from the abadi to the nullah and no trail of blood could be expected because the bleeding must have stopped before the cart left the abadi.
On what evidence he found that bleeding must have stopped is not clear.
The learned Judge also relied upon the fact that Chowkidar Sumera made a report at the police station Charkhari about certain facts which are mentioned there.
Sumera is not a witness.
Therefore what he stated cannot be evidence in this case.
It appears that the learned Judge also took into consideration the fact that the appellants were absconding and that they gave no explanation as to their absconding but they do pot seem to have been asked any question in regard to it.
In regard to the witnesses Ram Nath, Tijiwa and Jurkhan who saw the dead body being carried in the cart, the learned Judge said that he found no reason to disbelieve their testimony.
At another place in the judgement the learned Judge observed that when witnesses talked about the neck of Rajaram Singh being out they must have been tutored about it.
In this view of the matter and taking other material improbabilities in the testimony of these witnesses which the learned Judge does not seem to have considered it is difficult to place any reliance on their evidence.
783 The whore case is full so many inconsistencies and improbabilities and peculiarities that it must be said that the case has not been established against the appellants beyond reasonable doubt.
We are opinion that the High Court 's failure to consider the important circumstances disclosed by the evidence, and the error in wrongly placing onus on the accused has resulted in miscarriage of justice.
The case therefore falls within the rule laid down in Pritam Singh vs State (1) and calls for our interference.
In these circumstances the conviction of the appellants must be set aside and the appeal must be allowed.
The appellants are acquited & must be released forthwith unless required in some other case.
RAGHUBAR DAYAL, J.
I have bad the advantage of perusing the judgment prepared by my learned brother Kapur, J. I agree with the interpretation of section 429, Cr.
P.C. I am, however, of opinion that the circumstances urged for the appellants do not justify interference with the verdict of the High Court on questions of fact.
They have all been considered by Desai J., in forming his opinion.
He has relied on the statements of the eye witnesses.
It is argued for the appellants that the circumstances tend to throw doubt on the correctness of the prosecution story that the incident took place inside the village abadi and that therefore the appellants ' conviction should be set aside.
The first circumstance is that the incident took place at 3.30 p. m., information about it reached the police outpost four furlongs away at 3.45 p.m., the armed guard at the outpost then proceeded to the spot and yet it is said that the (1) ; 784 accused could remove the dead body from the spot prior to the arrival of the armed guard.
The getting of the bullock cart and the loading of the corpse would have taken sufficient time and the arrival of the armed guard could have been within that time.
In this connection, it is to be noticed that Babu Singh, P. W. 1, an eye witness, left the spot after the body had been removed on the cart.
It was he who informed Shyam Lal about the incident.
Thereafter, Shyam Lal left for the police outpost.
Babu Singh states : "After the cart left I rain to the house of Raja Ram Singh.
There we met Shyam Lal.
I told Shyam Lal all what I witnessed.
He went to the police outpost to make a report and I went home.
" The first information report was lodged at the thana at 7.30 p.m.
It mentions the fact of the dead body being taken away on the cart.
In view of this fact it is clear that the armed guard could not have reached the spot in time to prevent the removal of the corpse.
Another fact against the circumstance urged is that the incident did not take place at 3.30 p. m., which was really the time when Babu Singh informed Shyam Lal Shyam Lal dictated in the first information report : "At about 3.30 p.m., Babu Singh. came to my house and informed me as follows. ".
The incident therefore must have started much earlier, say at about 3 O ' clock and the body must have been removed by about 3.25 p.m.
The other circumstance urged.
is that no bloodstained earth was found at the spot and that therefore this throws doubt on the incident having taken place at the spot alleged.
It is in the prosecution evidence that some of the accused washed the 785 ground where blood had fallen and plastered it.
According to the Sub Inspector, P. W. 27, bloodstained earth was taken in possession from the door of the accused Kalicharan Singh, which really means, from the front of his house.
Siya Ram, P.W. 26, stated that a few places in the Chabutra where blood stains were detected were scraped and that the stains were on the walls of the Chabutra.
The recovery list exhibit K 29 mentions : "blood stained earth was scraped from in front of the house of Sri Kali Charan, son of Bhan Singh, Thakur, ;and from the 'Chabutra ' (platform), whereon there appeared to be some stains of blood.
" Blood stained earth from the place where the dead body was recovered was also taken in possession.
The two samples of earth so taken in possession were sent in different packets to the Chemical Examiner who found them stained with blood.
The Serologist could not determine the nature of the blood due to disintegration.
In vie* of this evidence, it cannot be said that no blood stained earth was found at the alleged spot.
Further, Raziuddin, P.W. 17, who went with the armed guard to the spot stated; ",When at first I visited the house of Kali Charan I had noted that in front of his house there were indications of the washing of the ground at places.
It appeared that somebody had removed things from that place with hands and legs by spreading water at different places.
" This supports the statement of the other witnesses about the washing and plastering of the spot.
Sub Inspector Basudeo, P.W. 27, stated that when he reached the house of Kali Charn at about 11 p.m., he noticed that outside it some water 786 appeared to be lying and at places it appeared that the ground had been washed with hand and water.
It is true that the night was dark and he did not carry out the local inspection due to want of a suitable light.
But these facts can hardily affect his testimony.
He could not have mistaken the nature of the witness and should have been able to distinguish whether it was from water or from blood.
The witness of the ground is not to be doubted even though about 8 hours had elapsed since the washing took place.
Raziuddin has deposed that there had been rain fall two days earlier.
The incident had taken place on the 28th of July.
The ground could have been went from before and fresh washing could have wetted it more.
In fact, the more the spilling of blood, the more would have been the water used to wash it away.
Another circumstance urged is that no trail of blood was noticed between the village and the actual place where the dead body was recovered, a distance of over six miles.
The corpse was laid on the planks of the cart.
They got blood stained.
Any dropping of the blood from the cart on the track would have depended on the extent of the flow of blood and on the openings between the planks.
It is not expected that blood would have fallen in a continuous stream.
Some drops could have fallen down at places.
They could ' be easily pressed upon by the accused 's feet, some of whom would have been walking behind the cart.
The armed guard and others who followed the cart in pursuit were more.
concerned with the following of the marks left by the art than with noticing some minute drops of blood which might have fallen here and there on the track.
Absence of blood on the passage, therefore cannot discredit the prosecution case.
787 When the cart was produced in Court, it had one of the bullocks used at the time when the corpse was removed and another bullock substituted for the other one.
Much has been made of this change in the other bullock.
The Sub Inspector has stated in his evidence.
" I had entrusted the recovered bullocks and carts to the custody of Binda Lodhi of village Kharedi.
One bullock which is white in colour could not be brought here as it is suffering from small pox.
" The questions put to the accused mentioned the allegation about the other bullock suffering from small pox and in their replies this fact was not denied.
The police was not, in charge of the cart and the bullock and explanation has been given for not producing the other bullock in Court.
This circumstance too cannot therefore affect the correct ness of the prosecution case.
It has also been urged that the carts and bullocks found near the dead body were not put up for identification by witnesses.
Desai, J., has rightly observed that when witnesses could recognize the cart and bullocks there could be no point in having the cart and bullocks formally identified before a Magistrate.
Only such articles and accused are put up for a test identification as are not known to the witnesses.
Those known are never put up for identification.
The statements of the witnesses who re cognized them are judged from other circumstances.
Further, the evidence about the ownership of the cart was only by way of corroborating the statements of the prosecution witnesses.
Any cart which could be available to the accused could be used for the purpose of transporting the dead body.
Tijwa, P. W. 22, stated that Arjun Singh, accused, stopped the cart about a mile from the village abadi when he was returning home from his 788 fields and replaced the yoke of the cart with that of Tijwa 's as the former bad broken.
It is urged that the absence of evidence with respect to what happened to the broken yoke and how the cart of Tijwa reached the village, important circumstances, had not been noticed by the High Court in its judgment.
These circumstances cannot be said to be important.
In fact, they were very remotely relevant to test the veracity of Tijwa.
Tijwa was not cross examined about it.
He stated that the broken yoke was also taken away in the cart of Arjun Singh.
It should follow that Tijwa 's cart remained on the passage till its owner Mahadev Brahmin could have brought it back.
It may be mentioned that the recovery memo, exhibit K. 22, did not mention about the finding of the broken yoke in the cart.
The broken yoke is said to have been tied with a towel.
It might have been that the accused had removed the towel and thrown away the broken pieces.
The police party had no knowledge about the broken yoke when the cart was recovered and could not therefore have looked for the broken parts.
It may equally be that the broken yoke was used by Tijwa.
His cart had to go 'a much smaller distance that the cart which took the dead body to the nala.
When the accused started with the cart they expected the broken yoke to serve the purpose of driving the cart to the nala and back.
It was just accident that they happened to meet Tijwa on the way and borrowed his yoke.
However, I consider these matters very insignificant in assessing the correctness of the prosecution case.
Another matter severely commented upon for the appellants is the conduct of Sheo ' Sewak Singh, P. W. 20, Head Constable, Kharela Police Outpost, and the Investigating Officer, Basudeo, P. W. 27, mainly on account of the absence of entries in the duty register of the outpost about 789 Sheo Sewak Singh 's return there at about 4p.m., and about the Sub Inspector 's visit to it at about 11 p.m., on 28th July.
The Sub Inspector has stated : "It is not necessary to make any arrival and departure (entry) at police out post Kharela, when I visit that post in the record, of that outpost." The statement is with reference to making an entry about his arrival and departure.
He further stated: "I did not make any entry of my activities in the night between the 28th and 29th July 1957, in the record of police out post at Kharela nor it was necessary to note them there." And again: "Entries are made in the record at Kharela outpost about the duties allotted to the staff during duty hours." Sheo Sewak Singh, P.W.20, deposed: "I do make entries in the records at the police out post Kharela about my arrival there and also about my departure from that post.
These entries are made in the general diary by way of allotment of duty." Sheo Nandan Singh, P.W.19, Constable at that outpost, stated: "This (Ex.K.5) is not a general diary in which cases are registered and entered.
It is a register in which duties that are allotted and the Amad and Rawangi of the police staff are noted.
When the Sub Inspector attached so Muskara comes to the police out post at Kharela 790 he notes his arrival and departure in the register kept at police outpost Kharela.
No entry of his arrival and departure is made in the register in the night between the 28th and 29th of July 1957.
" Police officers do write their arrivals and departures in the general diary at the police station and may also be doing so at the out post duty registers, if Sheo Nandan Singh 's statement is to be preferred to the statements of the Sub Inspector and the Head Constable.
But even then such entries are usually made when the arrival of an outside police officer is in connection with some work at the out post.
A casual visit on his way to another spot may not be required to be noted.
Similarly, the return of a member of the police force at the out.post would be noted when he finally returns to duty.
His mere return to his quarters at the out,post may not be noted.
Any way, any omission to make an entry the duty register at the out post is not to discredit the entire prosecution evidence about the incident and the course of the investigation.
After the recovery of the dead body, Sumera, Chowkidar, was sent to Police Station Charkhari, in whose jurisdiction the dead body was found.
He lodged a report there at 3 a.m., and stated in it what had taken place earlier.
Ram Autar Dixit, P.W.14, the then second officer at Thana Charkhari, went to the spot, took in possession the dead body and the cart, prepared the inquest report and took other necessary steps.
Criticism.
is made of Sumera 's being sent to Charkhari police station and of ' this Sub Inspector making an investigation in connection with an offence said to have been committed in the jurisdiction of police station Muskara.
The criticism is unjustified.
The recovery of the corpse had to be 791 reported to the nearest police station and was properly made at Charkhari Police Station in whose jurisdiction also the dead body was found.
It was the duty of the Sub Inspector to proceed to the spot to prepare the inquest report and to take such other action as was necessary in the circumstances with respect to the recovery of the various articles (section 174 Cr.
P.C.).
He was not questioned about his bona fides or about his jurisdiction to do what he stated to have done.
The fact that Sumera was sent to report the recovery of the dead body to police station Charkhari can hardly lead to the conclusion that this was done as no incident had taken place in village Kharela as alleged by the prosecution.
Lastly, grievance is made of certain observations of Desai, J., generally to the effect that the accused had not stated something or had not led evidence to rebut the prosecution evidence on certain points.
It is urged that be therefore wrongly placed on the accused the onus of proving the defence version negativing the prosecution version.
I am of opinion that he made references to this as a factor supporting the conclusions hi) had already arrived at on the consideration of the evidence and circumstances.
He did not base his findings on such conduct of the accused.
He based his conclusion on more solid grounds.
Some of such observa tions are : (1) 'That the accused gave no explanation as to how the blood came to be on the wall of the Chabutra '.
The accused were not, questioned about it and therefore their omission to explain it could not go against them.
However, the fact that blood was found on the wall of the platform or in the earth in front of Kali Charan 's house was proved from the positive evidence on record.
792 (2) After Desai, J. had expressed his opinion about the reliability of the eye witnesses, he stated : "Kharela is a large village and if the murder did not take place inside the abadi and at 3.30 p.m. it would not have been difficult for the appellants to produce reliable evidence to contradict the eye witnesses, but they did not produce any evidence .
None of them said that Raja Ram Singh was not murdered in the abadi and in day time.
If he was not murdered in the abadi and in day time they must have heard when and where he was murdered.
Their statements were not evidence governed by the Evidence Act and they could say that what they bad heard.
" I am of opinion that there is nothing wrong in this observation when the incident is alleged to have taken place in broad daylight in the village abadi and yet the accused did not examine any witness to establish that no such incident took place in the village.
of course, a finding that the incident did take place in the village as alleged by the prosecution could not have been based on such consideration alone and the finding to that effect has not been so based.
(3) Similarly, Desai, J., made reference to certain accused not stating as to whom the bullock.
, ; .belonged and how they were obtained by the police.
A finding about the ownership of the cart and bullocks is based on the evidence of Tijwa and other witnesses and not on the omission of the accused to state as to whom they belonged.
Desai, J., was certainly wrong in using a note in the site plan when the subject matter of that note was not deposed to by any witness in Court, but this error with respect to the note that there were fresh marks of a cart in the cart enclosure of Dharam Singh had no significant bearing on the 793 In connection with Sumera 's Report at Police Station Charkhari, Desai, J., observed in his judgment : "Neither H.C. Sheo Sewak nor P.C. Raziuddin nor the armed guard had any interest in concocting a false case against the appellants on their own.
Therefore, when the information was conveyed through Sumera Chaukidar that Kharela police had gone in search of the murderers, it must be accepted that information was received at the out post at about 3 45 p.m. about the murder in the Abadi and that the outpost police went at once in search of the murderers.
In other words the murder must have been committed in the Abadi and in day time as deposed by the prosecution witnesses.
" Earlier, Desai J., had said what Sumera had informed at the Police Station.
He said: 'Sumera reached the police station at 3 a.m., met the second officer and informed him that constables of police circle Muskara went to his house in Jataura and told him that Raja Ram Singh was murdered, in Kharela, that the murderers carried away his corpse in a bullock cart and they and.
the head constable of the out post followed them, that the murderers ran away after throwing the corpse into the nala of Jataura, that the head of the corpse was missing but the bullock cart had been recovered and that he was sent to convey the information at the police station.
" I do Dot consider the evidence about Sumera 's making the report and stating certain things there to be inadmissible in evidence.
These are matters of record.
What he dictated cannot be considered to be substantive evidence of the facts stated, when 794 Sumera was not examined as a witness to prove them.
But what he actually dictated and the time when he dictated are facts which 'have been duly proved.
They can be considered to determine the probability of what the direct evidence tended to establish.
This is what Desai J., did when he used these facts of his making the report and making certain statements in considering that they tend to support the prosecution version.
It may be noted that he had earlier considered at length the suggestion that the entire prosecution case was concocted by the police and the villagers and bad given his reasons for repelling the suggestion.
Desai J., was in error to refer to the absconding of the accused as a circumstance against them as that had not been put to them when examined under section 342, Cr.
But as it did not basically affect the finding with respect to the correctness of the prosecution case, that would not justify interference with the findings of fact.
I would therefore dismiss this appeal.
By COURT.
In View of the opinion of the majority, the appeal is allowed.
The appellants are acquitted and must be released forthwith unless required in some other case.
| The, respondents has obtained leases for mining mica from the owners of a certain shrotriem village for one year with a stipulation that the lessors were bound to renew the leases for such periods as may be desired by the lessees.
Shortly, there.
after, the village waseanoified and the estate of the owners was resumed by the appellant.
The respondent contended that 174 the appellant was bound to renew the leases.
The appellant contended that the shrotriemdars had no right in the minerals, that they could not have granted any leases for mining the minerals and that as such no question of renewing the leases arose.
Held, that shrotriemadras had no rights in the minerals and the leases granted by them to the respondent had no legal effect, The mere fact that a person was the holder of an inam grant was not by itself enough to establish that the inam grant included the grant of sub soil rights in addition to surface rights.
The grant of sub soil rights depended upon the language used in the grant ; if there were no words in the grant from which grant of sub soil rights could be properly inferred it would only convey surface rights to the grantee.
The original grant in the present case was not available and the inam fair register did not show that the grant included the grant of sub soil rights.
No inference could he drawn of the grant of sub soil rights from the fact that the inam grant included poramboke (unculturable land) also.
The difficulty that may arise in the working of the mines on account of the mines vesting in the state and the surface rights vesting in the shrotriemdars could not make the shrotriemdars co sharers in the sub soil rights so as to entitle them to grant leases of the subsoil rights.
Secretary of State for India in Council vs Srinivasa Chariar, (1920) L. R. 48 1.
A. 56, applied.
Secretary of State vs Krishna Rao, (1945) L. R. 72 1.
A. 21 1, distinguished.
|
Appeal No. 92 of 1966.
, Appeal from the order dated May 30, 1963 of the Punjab High Court in Letters Patent Appeal No. 148 of 1963.
R. V. section Mani and M. L. Agarwal, for the appellants.
Dipak Dutt Chaudhuri and R. N. Sachthey, for the respon dents.
section K. Mehta, and K. L. Mehta, for the interveners.
The Judgment of the Court was delivered by Shelat, J.
The appellants are members of a Hindu undivided family of which the first appellant is the Karta.
Prior to August 21, 1956, the family owned 64.35 standard acres of land in village Kurali, District Patiala.
The land stood in the revenue records in the name of the first appellant.
On December 23, 1957, the first appellant transferred 26 standard acres to one Babu Singh by a registered deed.
According to them, they had Planted an orchard in 10 acres of land.
Their contention was that the said 26 standard acres and the said 10 standard acres could not be taken into account while ascertaining surplus land under the Pepsu Tenancy and Agricultural Lands Act, XIII of 1955.
Both these claims were rejected by the authorities.
By his order dated January 20, 1961 ', respondent 'No. 3 declared 34.35 standard acres out of the said 64.35 standard acres as 'Surplus land.
The appeal filed by the appellants against the said order was rejected.
They then filed a revision application before respondent No. 1.
While that was pending they filed a writ petition in the High Court.
During the pendency of that writ petition.
the Punjab Legislature passed the Amendment Act, XVI of 1962 inserting section 32 KK in the principal Act.
The learned Single Judge,.
who heard the writ petition, held (1) that the finding that the appellants had not planted the said orchard within the statutory period was one of fact and could not be challenged in the writ petition and (2) that the said transfer of 26 standard acres was hit by section 32 FF and therefore was rightly ignored while ascertaining the surplus land.
The main contention urged before the High Court, however, was that each of the three appellants who constituted the said family was entitled to ,retain 30 standard acres, that as the total holding was only 64.35 605 standard acres, there was no surplus land liable to be acquired under the Act and, therefore, the order declaring 34.35 Standard acres, as surplus land was illegal.
The High Court following its earlier decision in Bhagat vs State of Punjab(1) "missed the writ petition.
A Letters Patent Appeal against that judgment was dismissed in limine.
The present appeal by certificate is directed against the dismissal of the said writ petition.
Mr. Mani 's contentions were: (1) that under Hindu Law every coparcener in a Hindu undivided family acquires right in the property of such coparcenery on birth and is entitled to a right of joint possession and enjoyment of its entire property, that section 32KK deprives such a coparcener of his rights of property in that that it takes away the rights of the descendants of the landowner to claim for themselves the permissible area and vest them in the head of the family alone so that there is not only an infringement of the right to hold property under article 19 (1 ) (f ) but also dis crimination in favour of the head of the family infringing thereby article 14; (2) that the effect of section 32 KK is that where an undivided family is possessed of land, instead of each of the descendants getting a ceiling area of 30 standard acres, the head of the family alone gets 30 standard acres and therefore the section is violative of article 31; (3) that the section, being applicable only to Hindu undivided families infringes article 15(1) inasmuch as it discriminates by reason only of religion such families as against other undivided families in Punjab amongst communities other than Hindus and (4) that the section cannot be said to be legislation whose object is agrarian reform and, therefore, is not protected by article 31 A. Section 32 KK, the validity of which is impeached in this appeal, reads as follows : "Notwithstanding anything contained in this Act or in any other law for the time being in force : (a) where, immediately before the commencement of this Act, a landowner and his descendants constitute a Hindu undivided family, the land owned by such family shall, for the purposes of this Act, be deemed to be the land of that landowner and no descendant shall, as member of such family, be entitled to claim that in respect of his share of such land he is a landowner in his own right".
The section first lays down a fiction and then its result.
The fiction is that where a landowner and his descendants form a Hindu undivided family, the land owned by such a family shall be, deemed to be.
the land of that landowner.
The fiction so en (1) I.L.R. (1963) 16 (1) Punjab 5O. 6O6 acted is limited only for the purposes of the Act.
The result of the fiction again for the purposes of the Act is that no descendant shall, as a member of such family, be entitled to claim that in respect of his share of such land he is a landowner in his own right.
There is no doubt that the section has a direct adverse ,effect on the rights of the descendants of a landowner.
It treats such a family as one unit equating the landowner and his descendants with an individual landowner depriving by such equation the descendant of the right to hold a ceiling area for himself.
Prima facie, such a provision would infringe article 19(1) (f) and article 31 and would be hit by article 13.
Article 31 A, however, provides that notwithstanding anything contained in article 13, no law providing for the acquisition by the State of any ,estate or of any rights therein or the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by articles 14, 19 or 31.
If, therefore, section 32 KK falls within the scope of article 31 A, it is obviously protected there under and the validity of the section is placed beyond any ,challenge on the ground of its infringing any of the rights under articles 14, 19 or 31.
In K. K. Kochuni vs The State of Madras(1), this Court laid ,down that article 31 A properly construed envisages agrarian reform and provides for the acquisition, extinguishment or modification of proprietary and various other kinds of subordinate rights in a tenure called the 'estate ' solely for that purpose and must be limited to it.
The Court held that the Act impugned there did not ,contemplate any agrarian reform or seek to regulate the rights inter se between the landlords and tenants or modify or extinguish any of the rights appertaining to janmam right leaving all the characteristics intact and, therefore, did not come within the purview of article 31 A. In Ranjit Singh vs The State Punjab (2), this Court considered the scope of that decision and held that the 'Word 'estate ' in article 31 A should be given a liberal meaning and that the changes proposed by the Punjab Consolidation Acts passed since 1948 and onwards were included in the general scheme of planning of rural areas and the productive utilisation of vacant and waste lands, that if agrarian reforms were to succeed, mere distribution of land to the landless was not enough, that there should be a proper planning of rural economy and conditions and that a scheme which makes villages self sufficient cannot but be regarded as part of larger reforms which consolidation ,of holdings, fixing of ceilings on lands, distribution of surplus lands and utilising of vacant and waste lands contemplate.
It is not necessary to refer to other decided cases as this decision clearly points out that the fixing of ceiling on lands and provisions (1) (2) [1965]1 S.C.R. 82.
607 relating to it would form part of and constitute agrarian reform and, therefore, such provisions would have the protection of article 3 1 A. A brief outline of the provisions of the Act will show the objects and the policy the legislature had in mind in passing the Act and while amending it from time to time.
The Act declares that it was passed to amend and consolidate law relating to tenancy and agricultural lands and to provide for certain measures of land reforms.
Section 3 defines " permissible limit" as meaning 30 standard acres of land.
Section 5 entitles ,very landowner owning land exceeding the permissible limit to select for personal cultivation from the land held by him any parcel or parcels of land not exceeding in aggregate the permissible area.
Chapter III provides for the rights of tenants and section 7 therein lays down that no tenancy shall be terminated except in accordance with the provisions of the Act or except on any of the grounds therein set out.
Section 7 A lays down additional grounds for termination of tenancy in cases such as where the land comprising the tenancy has been reserved by the landowner for his personal cultivation or where the landowner owns 30 standard acres or less of land and the land falls within the permissible limit.
Section 9 provides the maximum amount of rent payable by a tenant.
Chapter IV deals with acquisition or proprietary rights by a tenant on such tenant paying compensation determined in accordance with the principles set out in section 26.
Chapter IV A, which was added by Act 15 of 1956, deals with ceiling on lands and acquisition and disposal of surplus land.
Section 32 A provides that no person shall be entitled to own or hold as landowner or tenant land exceeding the permissible limit.
Section 32 B obliges a person owning or holding as landowner or tenant land which exceeds the permissible limit to furnish to the Collector a return giving particulars of all his land and stating therein his selection of land not exceeding the permissible limit which he desires to retain and of lands in respect of which he claims exemption from the ceiling.
Section 32 D directs the Collector to prepare a draft statement on the basis of the information given in the said returns showing the total area of land owned or held by such person and the land selected by him by way of permissible limit the exemption claimed by him and the surplus area.
Section 32 E provides that in the case of surplus area of a landowner or a tenant which is not included within the permissible limit such area shall on the date on which possession thereof is taken by the State Government, be deemed to have been acquired by the State Government for a public purpose.
Section 32 F authorises the Collector to direct the landowner or the tenant in possession of the surplus area to deliver possession thereof within the prescribed time.
Section 32 FF provides that no transfer or 608 other disposition of land made after August 21, 1956 shall affect the right of the State Government to the surplus area to which it would be entitled to but for such transfer or disposition.
Section 32 G lays down principles on which compensation in respect of surplus area is to be determined.
Section 23 J deals with disposal of such surplus area.
Section 32 KK already recited above was inserted in the Act by Punjab Act XVI of 1962.
It is clear from these provisions that the objects of the Act are : (a) to secure the rights of tenants, (b) to provide for acquisition of proprietary rights in the land,to the tenant, (c) to provide for permissible limit of 30 standard acres, (d) to acquire surplus areas and distribute them amongst certain classes of persons including landless persons, and (e) to provide for compensation at prescribed rates payable by tenants and by Government on its acquiring surplus land.
The principle laid down by the, Act is that no person, whether a landowner or tenant, should hold land more than the permissible area so that the surplus land can be distributed amongst the more needy sections of society.
In following this principle the Act lays down two corollaries, namely, (1) not to recognise any transfer or disposition made by a landowner after a certain date as otherwise the scheme of distribution of surplus land would be frustrated, and (ii) to equates an individual landowner and a Hindu undivided family consisting of a landowner and his descendants so that both the units are entitled to hold only the permissible area of 30 standard acres.
In our view, it cannot be gainsaid that section 32 KK deals with an estate within the meaning of article 31 A and is concerned with agrarian reform.
The decision in Kochuni 's case(1) cannot, therefore, avail the appellants.
In Pritam Singh vs The State of Punjab (2) , this Court up held the validity of section, 32 FF and held that that section was protected by article 31 A against any challenge under article 19.
If a transfer or a disposition of land can validly be ignored under section 32FF for the purpose of ascertaining surplus land and acquisition of such surplus land by the State and that section is protected by article 31 A, it is difficult to say why section 32 KK which, as aforesaid, equates a Hindu undivided family with an individual landowner for the limited purpose of the Act without affecting the other rights of its members is not equally protected by that Article.
The object of enacting section 32 KK was to prevent the landowner and his descendants by reason of their constituting a Hindu undivided family from each of them claiming in his own right the permissible area from the joint holding of the family and thus retain for themselves in the aggregate area larger than 30 standard ' acres and preventing thereby distribution of surplus area.
As to (1) (2) ; 609 the pros and cons of such a provision much can be said on either side.
The appellants could have perhaps contended that such a provision amounted to an unreasonable restriction.
But such a contention is debarred by article 31 A an d a challenge to the validity of that Article is no longer possible in view of the recent decision in 1.
C. Golak Nath vs The State of Punjab(1).
The contention that the section is not one relating to agrarian reform is hardly sustainable in view of the above mentioned objects of the Act in general and of section 32 KK in particular.
Similarly, the contention that the section has the affect of defeating the rights of a member of a Hindu undivided family from the family property also cannot be sustained because his rights in the permissible area retained by the landowner and his right to compensation in respect of the surplus area are not touched by the section.
Nor is it possible to say that 'the section results in the transfer of rights of the descendants of a landowner in the permissible or surplus area in favour of such landowner.
The section does not effect any change in the rights of the descendants as members of a Hindu undivided family or the relationship of the family inter se except to the extent of depriving the descendants of their right to claim the ceiling area for each of them.
The contention as to the validity of section 32 KK, therefore, must fail.
The next contention was that the section infringes article 15 inasmuch as by limiting it only to Hindu undivided families it discriminates against descendants forming such families on the ground of religion only.
It was argued that the customary law in Punjab recognises joint and undivided families amongst non Hindu persons also and since the section affects only the Hindu undivided families, it violates article 15.
In support of this contention passages from Rattigan 's Digest of Customary Law, 14th Ed. pp. 35 to 36 were relied on to show that the institution of undivided family exists amongst certain classes of Muslims in certain districts of Punjab.
Support was also sought from the decisions in Banarsi Das vs Wealth Tax Officer.(2) and Mammad Kevi vs Wealth Tax Officer (3).
The former was concerned with the question whether a Hindu undivided family is embraced within the term 'individuals ' in Entry 56 of List 1 of the Seventh Schedule to the Constitution for purposes of the Wealth Tax Act, 1957.
The latter decision does not touch the question under article 15.
Neither of the two decisions, therefore, can assist.
On the other hand, in the case of Bhagat vs State of Punjab(4) the High Court of Punjab has held that section 32 KK does not create any discrimination on the ground of religion.
In 'the present case, it is not possible to give (1) ; (3) L7Sup.
Cl/67 9 (2) (4) I.L.R. [1963] 16 (1) Punj.
610 any concluding answer to the contention raised by Mr. Mani firstly because such a point was not raised in the writ petition and secondly because the appellants have not placed before us sufficient data to enable us to go into the question.
We, therefore, refrain from examining that contention.
The appeal fails and is dismissed with costs.
Y.P. Appeal dismissed.
| While ascertaining the surplus land under the Pepsu Tenancy and Agricultural Lands Act, the excess over 30 acres owned by the appellants, a Hindu undivided family was declared surplus.
In ascertaining the surplus, the authorities ignored the transfer of land by the Karta of the family to an outsider by a registered deed.
The appellants unsuccessfully filed writ petition.
In appeal to this Court, the appellants contended that section 32 KK deprives a coparcener in a Hindu undivided family of his rights of property.
in that it takes away the rights of the descendants of the land owner to claim for themselves the permissible area and vest them in the head of the family alone so that there is not only an infringement of the right to hold property under article 19(1) (f) but also discrimination in favour of the head of the family infringing thereby article 14 and that the section cannot be said to be legislation whose object is agrarian reform and, therefore, is not protected by article 31 A. HELD:The appeal must fail.
In Pritam Singh vs State of Punjab [(1967) 2 S.C.R. 536] this Court upheld the validity of section 32 FF and held that that section was protected by article 31 A against any challenge under article 19.
If a transfer or a disposition of land can validly be ignored under section 32 FF for the purpose of ascertaining surplus land and acquisition of such surplus land bit he State and that section is protected by article 31 A, it is difficult to say why section 32 KK which, equates a Hindu undivided family with an individual landowner for the limited purpose of the Act without affecting the other rights of its members is not equally protected by that Article.
The object of enacting section 32 KK was to prevent the landowner and his descendants by reason of their constituting a Hindu undivided family from each of them claiming in his own right the permissible area from the joint holding of the family and thus retain for themselves in the aggregate area larger than 30 standard acres and preventing thereby distribution of surplus area.
[608 F H] The contention that the section is not one relating to agrarian reform is hardly sustainable in view of the objects of the Act in general and of section 32 KK in particular.
Similarly, the contention that the section has the affect of defeating the rights of a member of a Hindu undivided family from the family property also cannot be sustained because his rights in the permissible area retained by the landowner and his right to compensation in respect of the surplus area are not touched by the section.
Nor is it possible to say that the section results in the transfer of rights of the descendants of a landowner in the permissible or surplus area in favour of such landowner.
The section does not effect any change in the rights of 604 the descendants as members of a Hindu undivided family or the relationship of the family inter se except to the extent of depriving the descendants of their right to claim the ceiling area for each of them.
[609 B E] The decision of Ranjit Singh vs The State of Punjab ([1965] 1 S.C.R. 82) points out that the fixing of ceiling on lands and provisions relating to it would form part of and constitute agrarian reform and, therefore, such provisions would have the protection of article 31 A. [607 H]
|
No. 1669 of 1986.
(Under Article 32 of the Constitution of India).
By post.
The Judgment of the Court was delivered by THAKKAR, J.
Reasons, good and substantial, exist for directing the petitioner to approach the concerned High Court in the first instance instead of knocking at the doors of this Court straightaway.
And these need to be spelled out.
An illustration may tell more effectively, what other wise may not be told as effectively, and perhaps, only with some embarrassment.
Suppose there is only one National Hospital established especially for performing open heart surgery which cannot be performed elsewhere in any of the eighteen Regional Hospitals.
What will happen to the pa tients needing such surgery, if the National Hospital which alone is specially equipped for this type of surgery, throws its doors wide open also for patients suffering from other ailments who can be treated by any and every one of the eighteen Regional Hospitals? More particularly when the patients already admitted for such surgery by the National Hospital are already lying unattended to on its floors, and in its corridors, for an unconscionably long time? Showing sympathy for a patient with other than a heart problem who can also be treated equally effectively, and perhaps much more quickly, may well constitute cruelty to the heart patients who can be treated only by the National Hospital established especially and exclusively for the treatment of such patients.
Will it not be more merciful to all concerned (by being firm enough) to tell those suffering from other than heart problems to go to Regional Hospitals, instead of insisting on being treated at the National Hospital, which also can of course treat them, but only at the cost of neglecting the heart patients who have nowhere else to go '? More so as the patients going to the Regional Hospital may well benefit much more by securing more personalized and urgent attention thereat.
On the other hand, not to do so many well amount to being engaged in trying to relieve the distress of those whose distress can be 316 removed by any one else at the cost of refusing to treat those who cannot be treated by any one else.
If this Court takes upon itself to do everything which even the High Courts can do, this Court will not be able to do what this Court alone can do under article 136 of the Con stitution of India, and other provisions conferring exclu sive jurisdiction on this Court.
There is no reason to assume that the concerned High Court will not do justice.
Or that this Court alone can do justice.
If this Court enter tains Writ Petitions at the instance of parties who approach this Court directly instead of approaching the concerned High Court in the first instance, tens of thousands of Writ Petitions would in course of time be instituted in this Court directly.
The inevitable result will be that the arrears pertaining to matters in respect of which this Court exercises exclusive jurisdiction under the Constitution will assume more alarming proportions.
As it is, more than ten years old Civil Appeals and Criminal Appeals are sobbing for attention.
It will occasion great misery and immense hard ship to tens of thousands of litigants if the seriousness of this aspect is not sufficiently realized.
And this is no imaginary phobia.
A dismissed government servant has to wait for nearly ten years for redress in this Court. ' A litigant whose appeal has been dismissed by wrongly refusing to condone delay has to wait for 14 years before his wrong is righted by this Court.2 The time for imposing self disci pline has already come, even if it involves shedding of some amount of institutional ego, or raising of some eye brows.
Again, it is as important to do justice at this level, as to inspire confidence in the litigants that justice will be meted out to them at the High Court level, and other levels.
Faith must be inspired in the hierarchy of Courts and the institution as a whole.
Not only in this Court alone.
And this objective can be achieved only by this Court showing trust in the High Court by directing the litigants to ap proach the High Court in the first instance.
Besides, as a matter of fact, if matters like the present one are insti tuted in the High Court, there is a likelihood of the same being disposed of much more quickly, and equally effective ly, on account of the decentralisation of the process of administering justice.
We are of the opinion that the peti tioner should be directed to adopt this course and approach the High Court.
* More than 9000 are already pending now.
Kashinath Dikshita vs Union of India and others (SCC 1986 Vol.
3 p. 229) 2.
Shankarrao vs Chandrasenkunwar (Civil Appeal No. 1355(N) of 1973 decided on January 29, 1987.
317 It needs to be clarified that it will be open to the High Court to call upon the petitioner to present a properly framed Writ Petition without obliging him to incur the legal and other incidental expenditure if the petitioner cannot afford the same.
The matter may in such an event be assigned to a learned Advocate practicing in the High Court through the State Legal Aid and Assistance Board, or through the High Court Legal Aid Committee which can provide him with the requisite funds to enable him to do the needful.
It will also be open to the High Court to request the learned Dis trict Judge of Vadodara to look into the matter from the point of view of the complaints made in the letter in ques tion, and make an appropriate report to enable the High Court to pass such suitable orders as may be called for in the facts and circumstances of the case in order to secure ends of justice.
These are the reasons which we 'now ' articulate in support of the order we passed 'then '.
| The All India Radio (Recruitment of Director General, All India Radio) Rules, 1963 provided that the post of Director General, All India Radio be filled up either by promotion or by re employment or by transfer on deputation, or by direct recruitment, and (i) 50% of the vacancies be filled up by promotion failing which by transfer on deputa tion, and failing both by direct recruitment, and (ii) 50% by reemployment or transfer on deputation or direct recruit ment, the exact method of recruitment to be decided in consultation with the Union Public Service Commission on each occasion.
The Additional Director General in the All India Radio who had served as such for three years was also eligible under the Rules for promotion to the post of Direc tor General.
The post of the Director General fell vacant on February 14, 1985.
The authorities took recourse to make appointment to the post by transfer on deputation as there was no body eligible for promotion, including the first respondent from the grade of Additional Director General.
The second re spondent, who was an officer of the rank of the Additional Secretary to the Government of India, was appointed by transfer on deputation initially for a period of six months, and before the expiry of 340 this period, his continuation for a further period of two years was recommended as nobody was eligible for promotion even at that time and after approval of the competent au thority the second respondent 's continuation was notified on December 10, 1985.
The aforesaid order of continuation was assailed before the Central Administrative Tribunal by the first respondent, who was working as the Additional Director General, on the ground that though he fulfilled all the requisite qualifica tions provided in the Rules for being considered for promo tion to the post of the Director General, his case was not considered and the impugned order continuing the appointment of the second respondent upto March 3, 1987 was made.
The Central Administrative Tribunal held that the ap pointment of the second respondent was not made in accord ance with the Rules, that he had not the requisite qualifi cation for being appointed to the post and though the first respondent fulfilled the eligibility qualification, was not considered at all, and quashed the appointment of the second respondent.
It also directed that the post be filled up in accordance with the rules and that the first respondent be considered for the post In the appeal to this Court, the findings recorded by the Central Administrative Tribunal that the appointment of the second respondent was bad on the ground that it was not in accordance with the rules and that he was not qualified to be appointed to the post, were challenged.
Allowing the appeal, this Court, HELD: 1.1 There were only three modes of making recruit ment viz. (1) by promotion, failing which (2) by deputation; and failing which (3) by direct recruitment.
[346B C] 1.2 Since the appointment by promotion was not at all possible, and such an important and sensitive post could not be kept vacant, the appointment of the second respondent was made by transfer on deputation which was the next mode of appointment in the order of preference.
Thus, the initial appointment of the second respondent is unexceptionable.
[346D G] 1.3 The appointment to such a sensitive post by the very nature of things has to be considered in advance and if when the proceedings were initiated, the first respondent had not yet qualified for being appointed 341 to the post, his name could not have been considered.
Fail ure to consider his name in anticipation that he would have qualified by the date on which the initial appointment came to an end, does not constitute any illegality which vitiates the appointment.
[347B C] 1.4 The mere fact that the original appointment of the second respondent, which was rightly made initially, was extended for a further period by reason of the fact that when the proposal was mooted for consideration nobody else was eligible for promotion cannot vitiate the appointment of the second respondent by transfer on deputation which was the approved mode for appointment as per the relevant rules.
[347C D] 1.5 The very fact that the extension was made only till March 3, 1987 shows that there was anxiety to fill up the vacancy ultimately by promotion which was the first prefer ential mode of appointment, if possible.
If it was other wise, the initial appointment itself could have been made without restricting the appointment by a time limit.
[347D E] 1.6 Merely by reason of the fact that it was not brought to the notice of the Appointments Committee that the second respondent would qualify for being considered for promotion shortly would not justify characterising or quashing the appointment as illegal under the Rules.
[347F] 2.1 The criteria for appointment has been projected in Column 7 of the Schedule of Rules.
The second respondent fulfils the first part of the criteria as he is holding the post of Additional Secretary to the Government of India.
[347G H] 2.2 It would not be legal or proper to bodily lift and transplant clause (ii) literally and word by word as the requisite criteria for appointment by transfer on deputa tion.
[348A B] 2.3 Due importance must be attached to the expression "possessing experience of the type mentioned in clause (ii) of column 7".
The emphasis in substance, is on possession of experience of the general nature mentioned in clause (ii).
It would, therefore, not be right to inject into the eligi bility criteria the requirement of "18 years ' experience in a supervisory capacity in educational, cultural, publicity or professional institution/organisation" as the requisite criteria for appointment on transfer by deputation.
If the rule making authority was so minded, it could have expressly transplanted all the requirements of 342 clause (ii) of column 7.
If such were the intention, the rule making authority would not have referred to experience of the 'type ' mentioned in clause (ii) of column 7.
[348B D] 2.4 On a true, fair and reasonable reading of the eligibility criteria, it cannot be said that it requires either experience of '18 years ' or experience in a 'supervi sory capacity ' in any of the institutions mentioned in clause (ii) of column 7.
All that is required is experience of that type viz., experience in the sphere of education, culture, publicity etc.
along with adequate general adminis trative experience with capacity for organisation.
The criteria is being specified in the context of officers belonging to the All India Services of Central Services Group A.
By the very nature of things, therefore, they could not have 18 years experience in professional or supervisory capacity in any educational institution.
[348D F] 2.5 The second respondent was duly qualified having regard to the fact that he had to his credit 29 years of administrative experience and had held senior positions including the post of Joint Secretary in the Ministry of Information and Broadcasting and was holding.
the post of Additional Secretary with effect from October, 1983.
The very fact that he had worked as Joint Secretary in the Ministry of Information and Broadcasting itself, coupled with his other experience, would satisfy the requirement of the eligibility criteria for being appointed to the post of Director General, All India Radio.
[349H; 350A B] 3.
The Tribunal was, therefore, in error in taking the view that the extension of the term of appointment of the second respondent which is due to expire on March 3, 1987 was invalid and that he was not qualified for being appoint ed by transfer on deputation to the said post as per the Rules.
[350C D]
|
ivil Appeal Nos.
1979 85 of 1986 etc.
From the Judgment and Order dated 12.2.1986/28.2.1986/49.1.1986 and 5.2.1986 of the Andhra Pradesh High Court in W.P. Nos.6063, 5379, 9908, 7836 and 5379 of 1985.
Seetaramaiah, A.S. Nambyar, R.N. Keshwani, T.V.S.N. Chari, Ms. Vrinda Grover, section Mudigonda, C.S. Vaidanathan, S.R. 697 Sethia, Vimal Dave, B. Rajeshwara Rao, Jitendra Sharma, G.N. Rao, T.C. Gupta, B.P. Sarathi, A. Subba Rao and B. Kanta Rao for the appearing parties.
The Judgment of the Court was delivered by SEN, J.
These appeals by special leave and the connected special leave petitions directed against the various judgments and orders of the Andhra Pradesh High Court involve a question of principle, and relate to location of Mandal Headquarters in the State of Andhra Pradesh under section 3(5) of the Andhra Pradesh Districts (Formation) Act, 1974.
The main issue involved is whether location of Mandal Headquarters was a purely governmental function and therefore not amenable to the writ jurisdiction of the High Court under article 226 of the Constitution.
In the present cases we are concerned with the location of 12 Revenue Mandal Headquarters.
The avowed object and purpose of the Andhra Pradesh District (Formation) Act, 1974, as amended by the Andhra Pradesh District (Formation) Amendment Act, 1985 as reflected in the long title, was to bring about a change in the Revenue Administration with a view to 'bring the administration nearer to the people and to make all public services easily available to them '.
The change in the Revenue Administration was so achieved by the creation of Revenue Mandals in place of taluks and firkas.
The purpose of the legislation is brought out in the Statement of Objects and Reasons, a relevant portion whereof is as under: "On a careful review of the socio economic development of the State for the last 20 years the State Government felt it necessary to take the administration nearer to the people.
It was of the opinion that the only method to be adopted by the Government for a better Revenue Administration and to serve the interests of the people in a more effective and suitable manner was by formation of the Mandals in place of taluks and firkas.
It was of the view that a decentralisation of administration and reduction in its levels would be conducive to a more efficient implementation of administration which brings the involvement of the people, particularly in the implementation of several welfare measures of the Government, and especially to uplift the conditions of the weaker sections of the society.
It also felt that there was urgent necessity to review its 698 activities and services and welfare programmes and that they should be extended to the interior regions and that the creation of Mandals with a population ranging from 35,000 to 55,000 based upon density of population would be an effective method for providing better facilities to the people at lesser cost and greater convenience.
The avowed object was therefore to 'bring the administration nearer to the people and to make all public services easily available to them '.
This was achieved by the creation of Revenue Mandals in place of taluks and firkas.
" To implement the decision of the Government, on 11th January, 1984 the Governor of Andhra Pradesh accordingly promulgated Ordinance No. 22 of 1984.
This Ordinance was later replaced by Ordinance No. 5 of 1985 inasmuch as the earlier Ordinance could not be reintroduced due to dissolution of the Legislative Assembly.
The Ordinance was later replaced by Act No. 14 of 1985.
The change in administration was brought about by amending section 3 of the Act by introducing the word 'mandals ' in place of taluks and firkas.
Pursuant to their powers under sub section
(1) of section 3 of the Andhra Pradesh Districts (Formation) Act, as amended by Act 14 of 1985, the State Government, by notification published in the official gazette, after following the procedure laid down in sub s.(5) thereof divided the State for the purpose of revenue administration into 23 Revenue District with such limits as specified therein.
Each such district consisted of Revenue Divisions and each Revenue Division consisted of Revenue Mandals.
The 23 districts now comprise of 1104 Revenue Mandals.
As many as 124 petitions under article 226 of the Constitution were filed in the High Court by individuals and gram panchayat questioning the legality and propriety of the formation of certain Revenue Mandals, and particularly location of Mandal Headquarters, abolition of certain Mandals or shifting of Mandal Headquarters, as notified in the preliminary notification issued under sub section
(5) of section 3, deletion and addition of villages to certain mandals.
Some of the writ petitions were heard by one Division Bench and the others by another, both the Benches being presided over by Reghuvir, J. who has delivered all the judgments.
Incidentally, there is no statutory provision relating to location of Mandal Headquarters and the matter is governed by GOMs dated 25th July, 1985 issued by the State Government laying down the broad guidelines for the formation of Mandals and also for location of Mandal Headquarters.
The learned Judges upheld the validity of formation of Mandals as also the aforesaid GOMs and in some 699 cases they declined to interfere with the location of Mandal Headquarters holding that the Government was the best judge of the situation or on the ground that there was a breach of the guidelines, and directed the Government to reconsider the question of location of Mandal Headquarters.
However, in other cases the learned Judges have gone a step further and quashed the final notification for location of Mandal Headquarters at a particular place holding that there was a breach of the guidelines based on the system of marking and also on the ground that there were no reasons disclosed for deviating from the preliminary notification, and instead directed the Government to issue a fresh notification for location of Mandal Headquarters at another place.
One of the arguments advanced before us in the cases where the High Court has declined to interfere is that both the High Court and the State Government should have applied a uniform standard in dealing with the question and generally it is said that the State Government should at any rate have adhered to the guidelines in fixing the location of Mandal Headquarters without being guided by extraneous considerations.
Myriad are the facts.
It is not necessary for us to delve into the facts in any detail.
It would suffice for our purposes to touch upon the facts in some of the cases to present the rather confusing picture emerging as a result of conflicting directions made by the High Court.
It appears that Raghuvir, J. relied upon the underlying principle emerging from his earlier decision delivered on behalf of himself and Sriramulu, J. in the Gram Panchayat, Chinna Madur & Ors.
vs The Government of Andhra Pradesh, [1986] 1 Andhra Weekly Reporter 362 which he calls as the 'Chandur principle '.
In that case following the earlier decision of the High Court where a place called Chandur was not shown in the preliminary notification for formation of a taluk, but was chosen to be the place of location of the Taluk Headquarters in the final notification, it was held that in such a case publication of the final notification could not be sustained and it was for the Government to give reasons for such deviation.
The decision proceeded on the principle that where guidelines are issued regulating the manner in which a discretionary power is to be exercised, the Government is equally bound by the guidelines.
If the guidelines were violated, it was for the Government to offer explanation as to why the guidelines were deviated from.
We are afraid, there is no such inflexible rule of universal application.
The learned Judges failed to appreciate that the guidelines issued by the State Government had no statutory force and they were merely in the nature of executive instructions for the guidance of the Collectors.
On the basis of such guidelines the Collectors 700 were asked to forward proposals for formation of Revenue Mandals and for location of Mandal Headquarters.
The proposals so forwarded by the Collectors were processed in the Secretariat in the light of the suggestions and objections received in response to the preliminary notification issued under section 3(5) of the Act and then placed before a Cabinet Sub Committee.
The ultimate decision as to the place of location of Mandal Headquarters was for the Government to take.
It cannot be said that in any of the cases the action of the Government for location of such Mandal Headquarters was mala fide or in bad faith or that it proceeded on extraneous consideration.
Nor can it be said that the impugned action would result in arbitrariness or absence of fairplay or discrimination.
We must next refer to the facts in a few illustrative cases.
In the Gram Panchayat, Chinna Madur 's case, although in the preliminary notification issued under section 3(5) of the Act for formation of Devaruppalla Mandal, Chinna Madur was proposed as the Mandal Headquarters, the Revenue authorities in the final notification declared Devaruppalla as the Mandal Headquarters.
In the writ petition, the High Court produced the records and it showed that both Devaruppalla and Chinna Madur provided equal facilities as to communication, transport, veterinary hospital, bank, school etc.
and secured 15 marks each.
The Government preferred Devaruppalla as Chinna Madur was inaccessible in some seasons as that village was divided by two rivers from rest of the villages.
Devaruppalla besides is located on Hyderabad Suryapet Highway which was considered to be a factor in its favour.
After reiterating the Chandur principle that it is for the Government to give reasons for such deviation, the learned Judges declined to interfere, observing: "In the instant case, the record produced shows the authorities considered the comparative merits of Devaruppalla and Chinna Madur.
The Revenue authorities applied the correct indicia of accessibility in all seasons.
Other facilities of the two villages were discussed at length in the record.
Having regard to the overwhelming features in favour of Devaruppalla the village was declared as head quarters.
" We have referred to the facts of this case because it highlights the approach of the High Court and it has assumed to itself the function of the Government in weighing the comparative merits and demerits in the matter of location of the Mandal Headquarters.
701 The same infirmity unfortunately permeates through some of the judgments where the High Court has interfered.
In some of the cases the High Court has gone further and not only quashed the impugned notification for location of the Mandal Headquarters at a particular place but also directed the shifting to another place.
In Civil Appeals Nos. 1980 and 1985 of 1986, in formation of Gollamamidada Mandal, Gollamamidada was shown as the proposed Headquarters in the priliminary notification, but Pedapudi was selected to be the place of Headquarters in the final notification.
Gollamamidada secured 23 marks as compared to 18 marks secured by Pedapudi.
The Collector relaxed the guideline because, it was stated, 12 out of 17 Panchayat opted for Pedapudi to be the Headquarters presumably because Gollamamidada was at one end of the Mandal and out of 17 villages comprised in the Mandal, 10 villages were at a distance of 7 to 14 kilometres and there were no proper travelling facilities and therefore it was beyond the reach of the common man.
Allowing the writ petition, the High Court observed: "On evaluation of the sketch, we hold that neither of the two villages is centrally located".
It went on to say that "the guidelines prescribed by the Government bind the Government and cannot be relaxed and there was no reason forthcoming for supersession of the claim of the village Gollamamidada by Pedapudi." Although the Cabinet Sub Committee had directed the variation on grounds of administrative convenience and for the reason that 12 out of 17 Gram Panchayats had resolved that Pedapudi should be the Headquarters, the High Court quashed the notification saying that the resolution of the Gram Panchayat might be relevant for consideration, but in law it was not decisive of the question.
It further observed that there was no explanation as to why the place of location as specified in the preliminary notification was varied and accordingly directed the shifting of Headquarters to Gollamamidada.
We find it difficult to subscribe to this line of reasoning adopted by the High Court.
In Civil Appeals Nos. 1982 and 1987 of 1986, the judgment of the High Court suffers from the same infirmity.
In the preliminary as well as final notification, for formation of Kalher Revenue Mandal, Kalher was declared to the Mandal Headquarters.
Kalher secured 14 marks as against Sirgapur which secured 22 marks.
The High Court quashed the notification for location of the Headquarters at kalher and directed the shifting of the Headquarters to Sirgapur on the basis of the Collector 's note appended to the file which stated: "As per the guidelines, the Mandal Headquarters may have to be fixed at Sirgapur and not at Kalher.
Sirgapur has 702 scored 22 points whereas the score of Kalher is only 14.
Sirgapur is undoubtedly the zone of influence for this Mandal.
Moreover, Sirgapur is centrally located and has better road connections with the rest of the villages, besides having maximum infrastructural facilities.
" The High Court observed that no record was produced as to why the Government did not act on the note placed on the file.
It will serve no useful purpose to delineate the facts in all the cases which follow more or less on the same lines.
We are of the opinion that the High Court had no jurisdiction to sit in appeal over the decision of the State Government to locate the Mandal Headquarters at a particular place.
The decision to locate such Headquarters at a particular village is dependent upon various factors.
The High Court obviously could not evaluate for itself the comparative merits of a particular place as against the other for location of the Mandal Headquarters.
In some of the cases the High Court declined to interfere saying that the Government was the best judge of the situation in the matter of location of Mandal Headquarters.
However, in a few cases the High Court while quashing the impugned notifications for location of Mandal Headquarters issued under sub section
(5) of section 3 of the Act on the ground that there was a breach of the guidelines, directed the Government to reconsider the question after hearing the parties.
We have had the benefit of hearing learned counsel for the parties on various aspects of this branch of administrative law as to the nature and scope of the guidelines and whether their non observance was justiciable.
The learned counsel with their usual industry placed before us a large number of authorities touching upon the subject.
On the view that we take, it is not necessary for us to refer to them all.
Shri T.V.S.N. Chari, learned counsel appearing on behalf of the State Government followed by Dr. Y.S. Chitale, Shri U.R. Lalit and Shri C.S. Vaidyanathan, learned counsel appearing for the appellants in cases where the High Court has interfered have, in substance, contended that suitability as to the location of Mandal Headquarters is for the Government to decide and not for the High Court.
They contend that the High Court failed to view the case from a proper perspective.
According to them, the guidelines are executive instructions, pure and simple, and have no statutory force.
It was pointed out that there is no statutory provision made either in the Act or the Rules framed there 703 under laying down the manner in which the location of the Headquarters of a Revenue Mandal was to be made.
The Legislature has left the matter of selection of a place to be the Mandal Headquarters to the discretion of the State Government and it was purely a Governmental function based on administrative convenience.
The Government accordingly issued a White Paper laying down the broad guidelines as contained in Appendix I thereto.
The Collector were required to forward their proposals for formation of Revenue Mandals indicating the place where the Headquarters should be located in accordance with the principles laid down in the guidelines based on a system of marking.
Although the Collectors were required to propose the location of Mandal Headquarters at a particular place on a system of marking, but that was not determinative of the question.
If the marks were to be the sole criterion, then there was no question of inviting objections and suggestions.
The ultimate decision therefore lay with the Government and in making the selection the Government had the duty to ensure that the place located for location of Mandal Headquarters promoted administrative convenience and further the object and purpose of the legislation in bringing about a change in the Revenue administration viz. (i) to bring the administration nearer to the people and (ii) to make all public services easily available to them, the main criterion as laid down in the guidelines being suitability and accessibility.
Further, the learned counsel contended that the High Court was clearly in error in substituting its judgment for that of the State Government.
Non observance of the guidelines which were in the nature of executive instructions was not justiciable.
In any event, the High Court could not have issued a direction requiring the Government to shift the Headquarters of a Revenue Mandal from a particular place to another place on its own evaluation of the comparative merits and demerits merely on the basis of marking.
The learned counsel relied upon G.J. Fernandez vs State of Mysore & Ors., ; and other decisions taking the same view.
We had an equally persuasive reply to these arguments.
Shri Seetaramaiah, learned counsel appearing for the respondents in cases where the High Court has interfered, advanced the main argument on the legal aspect with much learning and resource and placed all the authorities on this abstruse branch of administrative law, namely, the Courts have albeit the Governmental action which involves exercise of discretionary powers, control over the exercise of such Governmental power by implying limits of reasonableness, relevance and purpose.
Judicial control over the executive, or over an administrative authority, must be maintained.
Such judicial control by necessary impli 704 cation is reconciled with legislative intent, on the premise that the legislature never intended that the Government should have unfettered control over a certain area.
He drew our attention to several recent English decisions which manifest a definite shift in the attitude of the Courts to increase their control over discretion.
According to the learned counsel, the traditional position is that Courts will control the existence and extent of prerogative power i.e. governmental power, but not the manner of exercise thereof.
What degree or standard of control would then be exercised would depend upon the type of subject matter in issue.
He submits that there is increasing willingness of the Courts to assert their power to scrutinise the factual bases upon which discretionary powers have been exercised.
It is said that the Court is not powerless to intervene where the decision of the Government is reached by taking into account factors that were legally irrelevant or by using its power in a way calculated to frustrate the policy of the Act.
It follows that the nature and object of the status had to be considered to determine the area of power possesed.
It is urged that the remedy of a writ of mandamus is available if a decision is reached by the Government on the basis of irrelevant considerations or improper purposes or for other misuse of power.
Upon that premise, he does not accept that the High Court had no jurisdiction to interfere with the orders passed by the State Government for the location of the Headquarters of a Revenue Mandal under article 226 of the Constitution.
Substantially, the argument is that the guidelines framed by the State Government have a statutory force inasmuch as the power to issue such administrative directions or instructions to the Collectors is conferred by the provisions of the Act itself.
Alternatively, he says that even though a non statutory rule, bye law or instruction may be changed by the authority who made it without any formality and it cannot ordinarily be enforced through a Court of law, the party aggrieved by its non enforcement may nevertheless get relief under article 226 of the Constitution where the non observance of the non statutory rule or practice would result in arbitrariness or absence of fairplay or discrimination, particularly where the authority making such non statutory rule or the like comes within the definition of 'State ' under article 12.
In substance, the contention is that the principle laid down in the classical decision of the House of Lords in Padfield vs Minister of Agriculture, Fisheries & Food, ; that the Courts will control the exercise of statutory powers by the Minister, still prevails over exercise of discretionary powers by the Government.
The general approach now is for the Courts to require that the Government must produce reasonable grounds for its action, even where the 705 jurisdictional fact is subjectively framed.
He drew our attention to the observations of Lord Denning M.R. in Laker Airways Ltd. vs Department of Trade, ; at p. 705 to the effect: "The prerogative is a discretionary power exercisable by the executive government for the public good, in certain spheres of governmental activity for which the law has made no provision, such as the war prerogative (of requisitioning property for the defence of the realm), or the treaty prerogative (of making treaties with foreign powers).
The law does not interfere with the proper exercise of the discretion by the executive in those situations: but it can set limits by defining the bounds of the activity: and it can intervene if the discretion is exercised improperly or mistakenly.
That is a fundamental principle of our constitution.
" * * * * "Seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive.
At several times in our history, the executive have claimed that a discretion given by the prerogative is unfettered: just as they have claimed that a discretion given by statute or by regulation is unfettered .
The two outstanding cases are Padfield vs Minister of Agriculture, Fisheries and Food, ; and Secertary of State for Education and Science vs Tameside Metropolitan Borough Council, ; , where the House of Lords have shown that when discretionary powers are entrusted to the executive by statute, the courts can examine the exercise of those powers to see that they are used properly, and not impropertly or mistakely." In order to appreciate the contentions advanced, it is necessary to refer to the relevant statutory provisions bearing on the questions involved.
Sub section
(1) of section 3, as amended, is in these terms: "3(1) The Government may, by notification, from time to time, for the purposes of revenue administration, divide the State into such disticts with such limits as may be specified therein; and each district shall consist of such 706 revenue divisions and each revenue division shall consist of such mandals and each mandal shall consist of such villages as the Government may, by notification from time to time, specify in this behalf." Sub section
(2) thereof provides that the Government may, in the interests of better administration and development of the areas, by notification from time to time on and with effect on and from such date as may be specified therein, form a new district, revenue division or mandal or increase or diminish or alter their name.
Sub section
(4) empowers the Board of Revenue in the interests of better administration and development of the areas and subject to such rules as may be prescribed, by notification, group or amalgamate, any two or more revenue villages or portions thereof so as to form a single new revenue village or divide any revenue village into two or more revenue villages, or increase or diminish the area of any revenue village, or alter the boundaries or name of any revenue village.
Sub section
(5) provides that before issuing any notification under the section, the Government or the Board of Revenue, as the case may be, shall publish in such manner as may be prescribed, the proposals inviting objections or suggestions thereon from the person residing within the district, revenue division, taluk.
firka or village who are likely to be affected thereby within such period as may be specified therein, and shall take into consideration the objections or suggestions, if any, received.
Sub section
(1) of section 4 enacts that the Government may, by notification, make rules for carrying out all or any of the purposes of this Act.
The rules so framed shall be laid before each House of the State Legislature, etc.
In exercise of the powers conferred by sub section
(1) of section 4 of the Act, the State Government framed the Andhra Pradesh District (Formation) Rules, 1984.
The term 'Mandal ' as defined in r. 2(iv) means a part of the district within a revenue division under the charge of a Tahsildar or Deputy Tahsildar.
The expression 'revenue division ' is defined in r. 2(v) to mean a part of the district comprising of one or more mandals under the charge of a Revenue Divisional officer/Sub Collector/Assistant Collector or any other officer placed in charge of a division.
The word 'village ' in r. 2(vi) means a settlement or locality or area consisting of cluster of habitations and the land belonging to their proprietory inhabitants and includes, a town or city and a hamlet (Mazra).
Rule 3 lays down the matters for consideration in formation of districts, etc.
Rules 4 and 5 provide for the publication of the preliminary and final notifications in the official gazette.
Rule 3 insofar as material reads: 707 "3(1) Where any action is proposed to be taken by the Government under sub section
(1) or sub section
(2) of section 3 of the Act . . the Government . shall take into consideration as far as may be the following matters and the views of the Collectors of the districts and of such other authorities as the Government may consider necessary: (i) Area, population, demand under the land revenue and other revenues in respect of areas affected by the proposals; (ii)Historical association, Geographical contiguity, Physical features common interests and problems, Cultural and Educational requirements, Infrastructural facilities and economic progress of the areas; (iii)Development of the area or areas concerned, having regard to the various developments and welfare schemes undertaken or contemplated by the Government in relation to those areas; (iv)Administrative convenience and better administration; and (v)Interests of economy." "3(3).
In matters concerning sub section
(1) or sub section
(2) of section 3 of the Act the Collector concerned shall forward to the Government his report with his views together with the record of enquiry if any for the consideration of the Government.
If after such consideration the Government so decides, a preliminary notification under sub section
(5) of section 3 of the Act inviting objections or suggestions to the proposals from the persons residing in the area/areas which are likely to be affected thereby, shall be issued.
" Sub r.
(1) of r. 4 provides for the manner of publication of the preliminary notification referred to in sub rr.
(3) and (4) of r. 3 inviting objections or suggestions.
The notification has to be in Form I appended to the Rules.
R. 4(2) provides that any person affected by the proposal may within thirty days from the date of publication of the notification referred to in sub r.
(1), communicate his objections or suggestions thereto to the Secretary to the Government in the 708 Revenue Department through the Collector of the district concerned, who shall forward the same with his remarks to the Government, etc.
R. 5 provides that the Government shall having regard to the suggestions or objections referred to in r. 4 either confirm the preliminary notification or issue it with such modification/modifications as may be necessary and publish it in Form II of the Gazette.
A preliminary notification under sub section
(5) of section 3 of the Act which has to be in Form I has to notify to all concerned that the Government in the interests of better administration and development of the area concerned, proposed to form a new district/revenue division/mandal as set out in the schedule appended thereto.
All objections and suggestions have to be addressed to the Collector within whose jurisdiction the area or areas fall.
Likewise, Form II prescribes the form of the final notification to the effect that the State Government having taken into consideration the objections and suggestions received thereon, is pleased to notify that with effect from (date) the State shall consist of the District/Revenue Division/Mandal specified in Schedule I appended thereto.
There are no statutory provisions formulating the governing principles for formation of Revenue Mandals or for location of Mandal Headquarters.
On 25th July, 1985 the State Government published a White Paper on formation of Mandals.
It was stated inter alia that the Revenue Mandals would be formed covering urban as well as rural areas unlike Panchayat Mandals which would cover only rural areas.
A Revenue Mandal would be demarcated for a population ranging from 35,000 to 55,000 in the case of rural mandals and was expected to cover one third to one fourth the size of the existing taluks in areas and in population.
When a Municipality came within the area of a Revenue Mandal, the urban population would be in addition.
The ushering in of rural mandals would result in introductions of a four tier system by replacement of the then existing five tier system.
Such reduction in the levels of tiers of administration the Government felt would be more conducive to proper implementation of the policies and programmes of the Government.
Greater decentralisation was expected to lead to more intensive involvement of the people, particularly in the implementation of programmes of economic development.
According to the scheme contemplated, each Revenue Mandal would be headed by a Revenue Officer of the rank of a Tahsildar or a Deputy Tahsildar and it was stated that the intention of the Government was to vest in such Revenue Officers, all the powers that were till then exercised by the Tahsildars and Taluk Magistrate.
Appendix I to the White Paper formulated the principles for formation of Revenue Mandals and also 709 laid down the broad guidelines for location of Mandal Headquarters.
The Collectors were accordingly asked to forward their proposals for creation of Revenue Mandals and also for location of Mandal Headquarters in conformity with the guidelines.
The proposals were to be duly notified by publication of a preliminary notification under sub section
(5) of section 3 of the Act inviting objections and suggestions and the Government after consideration of the objections and suggestions so received would publish the final notification.
The broad guidelines for location of Mandal Headquarters are set out below: (3) As a general principle, the present Taluk Headquarters, Samithi Headquarters, Municipalities and Corporations will be retained as Headquarters of Revenue Mandals; if any exception is called for on grounds of compelling reasons detailed reasons will have to be given.
(4) Revenue Mandals whose headquarters will be the present Taluk Headquarters/Samithi Headquarters/Municipalities/Corporations, will generally have a number of much needed infrastructural facilities already existing.
A number of people from the neighbouring villages will therefore be visiting these headquarters for both Governmental/non Governmental business.
In the case of Revenue Mandals to be located exclusively within municipal corporation areas, their requirements will be formulated according to their needs.
In cases of Mandal Headquarters located in urban centres which are not municipalities but with a population of 15,000 or above the total population of the Mandal would be 55,000 irrespective of population density.
(6) In choosing the Headquarters of the Revenue Mandals in the rural areas, weightage may be given to the availability of the following facilities and the future growth of the place.
(i) Banking facility; (ii) Communication facility either Railway Station or Bus Stand; (iii)PHC or Sub Centre or any Dispensary/Indian Medicine; 710 (iv) Veterinary Dispensary; (v) Police Station; (vi) Post Office/Telephone Exchange; (vii)High School.
(viii)Market Yard/Agricultural Godown; (ix) Already a Firka Headquarters; (x) Any other special qualification like availability of office accommodation, residential quarters for the staff etc.
A centre having one or more of the above characteristics and more accessible to most of the villages proposed for the Mandal in comparison to any other centre should be generally selected as Headquarters.
If in any mandal there is more than one centre having equal accessibility/facilities then the centre which comes forward to donate land for office buildings and to provide temporary office accommodation may be given preference.
(8) In the selection of villages for inclusion in the Mandal, the principal criterion shall be that the Mandal Headquarters is most accessiable to all the villages.
" It is quite obvious from the guidelines that the location of the Headquarters of a Revenue Mandal is based on a system of marking, the principal criterion being 'accessibility ' i.e. the place located must be accessible to all the villages in the Revenue Mandal.
In choosing the Headquarters of the Revenue Mandals in the rural areas, weightage had to be given to the availability of certain facilities and the future growth of the place as specified in items (i) to (x) of paragraph 6 of the guidelines.
A centre or a place having one or more of the characteristics so set out and more accessible to most of the villages proposed for the Mandal in comparison to any other place had to be generally selected as Mandal Headquarters.
If in any Mandal there was more than one place having equal accessibility/facilities then the place which came forward to donate land for office buildings and to provide temporary office accommodation had to be given preference.
Location 711 of Mandal Headquarters was therefore based on a system of marking.
Learned counsel for the parties have with infinite care taken us minutely to the facts of each case in an endeavour to support their respective contentions, viz., as to whether location of the Mandal Headquarters by the Government at a particular place was in breach of the guidelines or not.
We find it rather difficult to sustain the interference by the High Court in some of the cases with location of Mandal Headquarters and quashing of the impugned notification on the ground that the Government acted in breach of the guidelines in that one place or the other was more centrally located or that location at the other place would promote general public convenience or that the Headquarters should be fixed at a particular place with a view to develop the areas surrounded by it or that merely because a particular person who was an influential Member of Legislative Assembly belonging to the party in opposition had the right of representation but failed to avail of it.
The location of Headquarters by the Government by the issue of the final notification under sub section
(5) of section 3 of the Act was on a consideration by the Cabinet Sub Committee of the proposals submitted by the Collectors concerned and the objections and suggestions received from the local authorities like Gram Panchayat and the general public, keeping in view the relevant factors.
Even assuming that any breach of the guidelines was justiciable, the utmost that the High Court could have done was to quash the impugned notification in a particular case and direct the Government to reconsider the question.
There was no warrant for the High Court to have gone further and directed the shifting of the Mandal Headquarters at a particular place.
Broadly speeking, the contention on behalf of the State Government is that relief under article 226 of the Constitution is not available to enforce administrative rules, regulations or instructions which have no statutory force, in the absence of exceptional circumstances.
It is wellsettled that mandamus does not lie to enforce departmental manuals or instructions not having any statutory force, which do not give rise to any legal right in favour of the petitioner.
The law on the subject is succinctly stated in Durga Das Basu 's Administrative Law, 2nd edn.
at p. 144: "Administrative instructions, rules or manuals, which have no statutory force, are not enforceable in a court of law.
Though for breach of such instructions, the public servant may be held liable by the State and disciplinary action may 712 be taken against him, a member of the public who is aggrieved by the breach of such instructions cannot seek any remedy in the courts.
The reason is, that not having the force of law, they cannot confer any legal right upon any body, and cannot, therefore, be enforced even by writs under article 226." The learned author however rightly points out at p. 145: "Even though a non statutory rule, bye law or instruction may be changed by the authority who made it, without any formality and it cannot ordinarily be enforced through a Court of law, the party aggrieved by its non enforcement may, nevertheless, get relief under article 226 of the Con stitution where the non observance of the non statutory rule or practice would result in arbitrariness or absence of fairplay or discrimination, particularly where the authority making such non statutory rule or the like comes within the definition of 'State ' under article 12." In G.J. Fernandez 's case, the petitioner submitting the lowest tender assailed the action of the Chief Engineer in addressing a communication to all the tenderers stating that even the lowest tender was unduly high and enquired whether they were prepared to reduce their tenders.
One of them having reduced the amount of his tender lower than the lowest, the Chief Engineer made a report to the Technical Sub Committee which made its recommendations to the Major Irrigation Projects Control Board, the final authority, which accepted the tender so offered.
The High Court dismissed the writ petition holding that there was no breach of the conditions of tender contained in the Public Works Department Code and further that there was no discrimination which attracted the application of article 14.
The question that fell for consideration before this Court was whether the Code consisted of statutory rules or not.
The so called Rules contained in the Code were not framed under any statutory enactment or the Constitution.
Wanchoo, CJ speaking for the Court held that under article 162 the executive power of the State enables the Government to issue administrative instructions to its servants how to act in certain circumstances, but that would not make such instructions statutory rules the breach of which is justiciable.
It was further held that non observance of such administrative instructions did not give any right to a person like the appellant to come to Court for any relif on the alleged breach of the instructions.
That precisely is the position here.
The guidelines 713 are merely in the nature of instructions issued by the State Government to the Collectors regulating the manner in which they should formulate their proposals for formation of a Revenue Mandal or for location of its Headquarters keeping in view the broad guidelines laid down in Appendix I to the White Paper.
It must be stated that the guidelines had no statutory force and they had also not been published in the Official Gazette.
The guidelines were mere departmental instructions meant for the Collectors.
The ultimate decision as to formation of a Revenue Mandal or location of its Headquarters was with the Government.
It was for that reason that the Government issued the preliminary notification under sub section
(5) of section 3 of the Act inviting objections and suggestions.
The objections and suggestions were duly processed in the Secretariat and submitted to the Cabinet Sub Committee along with its comments.
The note of the Collector appended to the proposal gave reasons for deviating from the guidelines in some of the aspects.
Such deviation was usually for reasons of administrative convenience keeping in view the purpose and object of the Act i.e. to bring the administration nearer to the people.
The Cabinet Sub Committee after consideration of the objections and suggestions received from the Gram Panchayat and members of the public and other organisations as well as the comments of the Secretariat and the note of the Collector came to a decision applying the standards of reasonableness, relevance and purpose while keeping in view the object and purpose of the legislation, published a final notification under sub section
(5) of section 3 of the Act.
There is nothing on record to show that the decision of the State Government in any of these cases was arbitrary or capricious or was one not reached in good faith or actuated with improper considerations or influenced by extraneous considerations.
In a matter like this, conferment of discretion upon the Government in the matter of formation of a Revenue Mandal or location of its Headquarters in the nature of things necessarily leaves the Government with a choice in the use of the discretion conferred upon it.
It would be convenient at this stage to deal with the arguments of Shri Seetaramaiah that the action of the Government in the matter of location of Mandal Headquarters amounted to misuse of power for political ends and therefore amenable to the writ jurisdiction of the High Court under article 226 of the Constitution.
The learned counsel mainly relied upon certain English decisions starting from Padfield vs Minister of Agricultural, Fisheries & Food, ; down to Council of Civil Service Unions and Others vs Minister for the Civil Service; , What we call 'purely governmen 714 tal function ', it is said, is nothing but exercise of 'discretion derived from the royal prerogative '.
The learned counsel contends that ever since the judgment of Lord Denning in Laker Airways Ltd. vs Department of Trade, ; , the myth of executive discretion in relation to prerogative power no longer exists.
The learned counsel equated prerogative and statutory powers for this purpose, saying that in both cases alike the Courts will not review the proper exercise of discretion but will intervene to correct excess or abuse.
According to him, the prerogative powers of the Crown in England are akin to the executive functions of the Union and the States under article 73 and 162 of the Constitution, on which refrain from expressing any final opinion.
Prima facie, it seems to us that the executive powers of the Union and the States under articles 73 and 162 are much wider than the prerogative powers in England.
We would refer to a couple of English decisions from amongst those to which we were referred to during the arguments.
At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power.
Professor De Smith in his classical work 'Judicial Review of Administrative Action ' 4th Edn., at pp.
285 287 states the law in his own terse language.
The relevant principles formulated by the courts may be broadly summarised as follows.
The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner.
In general, a discretion must be exercised only by the authority to which it is committed.
That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case.
In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do.
It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously.
Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of an erroneous assumption about those facts.
These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power.
The two classes are not, however, mutually exclusiv.
Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account; and where an authority hands over its discretion to 715 another body it acts ultra vires.
The learned author then deals with the question whether the principles outlined above are applicable to the alleged abuse of wide discretionary powers vested in executive bodies and further states: "We have already noted that the courts sometimes call a discretionary power executive or administrative when they are unwilling to review the mode of its exercise by reference to "judicial" standards.
Does this mean that such discretionary powers are legally absolute, totally immune from judicial review? To this question there is no short answer.
(1) Parliament (or, to put the matter more realistically, the Government) may purport to exclude judicial review by means of special statutory formulae which, if construed literally, would deprive the courts of jurisdiction.
(2) No discretionary power is reviewable unless somebody has locus standi in impugn the validity of its exercise.
(3) If it is claimed that the authority for the exercise of discretion derives from the royal prerogative, the courts have traditionally limited reveiw to questions of vires in the narrowest sense of the term.
They can determine whether the prerogative power exists, what is its extent, whether it has been exercised in the appropriate form and how far it has been superseded by statute; they have not normally been prepared to examine the appropriateness or adequacy of the grounds for exercising the power, or the fairness of the procedure followed before the power is exercised, and they will not allow bad faith to be attributed to the Crown.
" Although the weight of authority in England favours only narrow grounds for judicial review of the exercise of prerogative powers, there is not a total absence of support for the view that in some circumstances at least the Court may apply somewhat broader standards of review.
See: De Smith 's Judicial Review of Administrative Action, 4th edn., pp. 285 287; H.W.R. Wade 's Administrative Law, 5th edn.
350 et.
; Foulkes ' Administrative Law, 6th edn., pp. 213 215, 219 225; Applications for Judicial Review, Law and Practice by Grahame Aldous and John Alder, p. 105; and D.C.M. Yardley 's 716 Principles of Administrative Law, 2nd edn.
65 67.
In recent years, the concept of the rule of law in England has been undergoing a radical change.
The present trend of judicial opinion is to restrict the doctrine of immunity of prerogative powers from judicial review where purely governmental functions are directly attributable to the royal prerogative, such as whether a treaty should be concluded or the armed forces deployed in a particular manner or Parliament dissolved on one day rather another, etc.
The shift in approach to judicial interpretation that has taken place during the last few years is attributable in large part to the efforts of Lord Denning in Laker Airways ' case.
The attempt was to project the principles laid down in Padfield 's case into the exercise of discretionary powers by the executive derived from the prerogative, and to equate prerogative and statutory powers for purposes of judicial review, subject to just exceptions.
Thus, the present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those class of cases which relate to deployment of troops, entering into international treaties, etc.
The distinctive features of some of these recent cases signify the willingness of the Courts to assert their power to scrutinise the factual bases upon which discretionary powers have been exercised.
The decision of the House of Lords in Padfield 's case is an important landmark in the current era of judicial activism in this area of administrative law.
The Minister had refused to appoint a committee, as he was statutorily empowered to do when he thought fit, to investigate complaints made by members of the Milk Marketing Board that the majority of the Board had fixed milk prices in a way that was unduly unfavourable to the complainants.
The Minister 's reason for refusing to accede to the complainants ' request inter alia was that 'it would be politically embarrassing for him if he decided not to implement the committee 's recommendations '.
The House of Lords held that the Minister 's discretion was not unfettered and that the reasons that he had given for his refusal showed that he had acted ultra vires by taking into account factors that were legally irrelevant and by using his power in a way calculated to frustrate the policy of the Act.
The view was also expressed by four of the Law Lords that even if the Minister had given no reasons for his decision, it would have been open to the Court to infer that the Minister had acted unlawfully if he had declined to supply any justification at all for his decision: De Smith 's Administrative Law, 4th edn., p. 294.
More recently, in Laker Airways case and in Secretary of State for Education and Science vs Tameside M.B.C., ; both the Court of Appeal and the 717 House of Lords have set aside as ultra vires the exercise of discretion that included a substantial subjective element.
In Padfield 's case the scarcely veiled allusion to fear of parliamentary trouble was, in particular, a political reason which was quite extraneous and inadmissible.
Lord Reid during the course of his judgment emphatically and unequivocally rejected the contention that the discretion of the Minister was absolute, in these words: "Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the Court.
In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the Court.
" Lord Upjohn said that the Minister 's stated reasons showed a complete misapprehension of his duties, and were all bad in law.
Lord Denning in another case observed that the decision in Padfield marked the evolution of judicial opinion that the Court could intervene if the Minister 'plainly misdirects himself in fact or in law '.
The importance of the decision of the House of Lords in Padfield 's case was underlined by Lord Denning in Breen vs Amalgamated Engineering Union, LR 19712 QB 175 at p. 190, in these words: "The discretion of a statutory body is never unfettered.
It is a discretion which is to be exercised according to law.
That means at least this: the statutory body must be guided by relevant considerations and not by irrelevant.
If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand.
No matter that the statutory body may have acted in good faith; nevertheless the decision will be set aside.
That is established by Padfield vs Minister of Agriculture, Fisheries and Food, which is a landmark in modern administrative law." In Laker Airways ' case, the Court of Appeal was concerned with the power of Minister to give directions to the Civil Aviation 718 authorities overiding specific provisions in the statute in time of war, in the interests of national security or international relations or protection of the environment.
In his judgment, Lord Denning M.R. held that the review of the prerogative is assimilated to that of statutory power, so that its exercise may be impugned for 'misdirection in fact or in law '.
Lord Denning M.R. discussed the nature of the prerogative and said; "Seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive." He then went on to say that the prerogative powers were as much capable of abuse as any other power and therefore subject to judicial review and observed: "Likewise it seems to me that when discretionary powers are entrusted to the executive by the prerogative in pursuance of the treaty making power the courts can examine the exercise of them so as to see that they are not used improperly or mistakenly." This observation has given rise to considerable debate.
The majority, however, proceeded on a narrower basis concluding that the Civil Aviation Act, 1971 had impliedly superseded the Crown 's prerogative in foreign affairs, and that the holder of a licence under the statute could not be deprived of its commercial value by a decision on the part of the Secretary to State or revoke the licensee 's status as a designated carrier under the Bermuda Agreement.
In other respects, the majority accepted the orthodox position on the unreviewability of the exercise of the prerogative, per Roskill and Lawton, L. JJ, Lord Denning however went further and held that the Court could intervene if a Minister 'plainly misdirects himself in fact or in law '.
Another important case in this context is R. V. Criminal Injuries Compensation Board, ex p. Lain, The question in this case was whether payments made by the Board to victims of crime were subject to judicial review.
The difficulty was that Lord Reid 's phrase 'power to make decisions affecting rights ' in Ridge vs Baldwin, ; was taken to refer to legal rights, whereas the Criminal Injuries Compensation Scheme was not said to be by legislation but 719 just as an administrative expedience by means of internal departmental circulars.
So payments made under the Scheme were not, strictly, a matter of legal right but were ex gratia.
On the other hand, the criterion on which payments were made were laid down in some detail and were very much like any law rules for assessment of damages in tort.
So the Board, like the Courts, was meant to be focussing on the individuals before it, in deciding whether to make an award and how much to award.
It was strenuously argued that the Board was not subject to the jurisdiction of the Courts since it did not have what was described as legal authority in the sense of statutory authority.
This argument was emphatically and unanimously rejected.
In his judgment Lord Parker, CJ. said: "I can see no reason either in principle or in authority why a board, set up as this board were set up, should not be a body of persons amenable to the jurisdiction of this Court.
True the board are not set up by statute but the fact that they are set up by executive government, i.e., under the prerogative, does not render their acts any the less lawful.
Indeed, the writ of certiorari has been issued not only to courts set up by statute but to courts whose authority was derived; inter alia, from the prerogative.
Once the jurisdiction is extended, as it clearly has been, to tribunals as opposed to courts, there is no reason why the remedy by way of certiorari cannot be invoked to a body of persons set up under the prerogative.
"Moreover the board, though set up under the prerogative and not by statute, had in fact the recognition of Parliament in debate and Parliament provided the money to satisfy the board 's awards.
" See also the judgment of Lord Diplock, LJ.
The ratio derived from Ex parte Lain 's decision can best be stated in these words: "Powers derived from the royal prerogative are public law powers.
" It therefore follows that a non statutory inferior authority like the Board albeit constituted under the prerogative powers, is just as well amenable to the jurisdiction of the Court as a statutory body.
It is clear 720 that certiorari will lie where a decision has de facto effect upon the individual and it is not necessary to show that the 'right ' in question is legally enforceable.
In Council of Civil Service Unions & Ors.
vs Minister for the Civil Service, ; the House of Lords reiterated broader standards of review of the exercise of prerogative powers.
The principles deducible are clearly brought out in the headnote extracted below: "(1) Powers exercised directly under the prerogative are not by virtue of their prerogative source automatically immune from judicial review.
If the subject matter of a prerogative power is justiciable then the exercise of the power is open to judicial review in the same way as a statutory power.
However (per Lord Roskill), prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers are not justiciable or reviewable.
(2) Administrative action is subject to control by judicial review under three heads: (i) illegality, where the decision making authority has been guilty of an error of law, e.g. by purporting to exercise a power it does not possess; (ii) irrationality, where the decision making authority has acted so unreasonably that no reasonable authority would have made the decision; (iii) procedural impropriety, where the decision making authority has failed in its duty to act fairly.
" Lord Diplock in his speech found no reason why simply because the decision making power is derived from a common law and not a statutory source, it should for that reason be immune judicial review, and observed: "Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review.
The first ground I would call 'illegality ', the second 'irrationality ' and the third 'procedural impropriety '.
" 721 We should also refer to the illuminating judgment of Lord Roskill who found no logical reason to see why the fact that the source of the power is the prerogative and not statute, should today deprive the citizen of that right of challenge to the manner of its exercise which he would possess were the source of the power statutory.
In either case, the act in question is the act of the executive.
The learned Judge agreed with the conclusions reached by Lord Scarman and Lord Diplock and observed: "To talk of that act as the act of the sovereign savours of the archaism of past centuries.
" We may with advantage quote the following passage from his judgment; "Dicey 's classic statement in Law of the Constitution (10th edn., 1959) p. 424 that the prerogative is 'the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown, has the weight behind it not only of the author 's own authority but also of the majority of this House in Burmah Oil Co. (Burma Trading) Ltd. vs Lord Advocate, ; at 353, per Lord Reid.
But as Lord Reid himself pointed out, this definition 'does not take us very far '.
On the other hand the attempt by Lord Denning, MR in Laker Airways Ltd. vs Dept. of Trade, ; at 192, (obiter) since the other members of the Court of Appeal did not take so broad a view) to asert that the prerogative 'if . . exercised improperly or mistakenly ' was reviewable is, with great respect, far too wide.
Lord Denning MR sought to support his view by a quotation from Blackstone 's Commentaries (1 B1 Com (15th edn) 252).
But unfortunately and no doubt inadvertently he omitted the opening words of the paragraph: "In the exercise therefore of those prerogatives, which the law has given him, the King is irresistible and absolute, according to the forms of the constitution.
And yet, if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the parliament will call his advisers to a just and severe account.
" In short the orthodox view was at that time that the remedy for abuse of the prerogative lay in the political and not in the judicial field.
722 But, fascinating as it is to explore this mainstream of our legal history, to do so in connection with the present appeal has an air of reality.
To speak today of the acts of the sovereign as 'irresistible and absolute ' when modern constitutional convention requires that all such acts are done by the sovereign on the advice of and will be carried out by the sovereign 's ministers currently in power is surely to hamper the continual development of our administrative law by harking back to what Lord Atkin once called, albeit in a different context, the clanking of medieval chains of the ghosts of the past.
" The effect of all these decisions is admirably summed up by Grahame Aldous and John Alder in their Applications for Judicial Review, Law and Practice thus: "There is a general presumption against ousting the jurisdiction of the courts, so that statutory provisions which purport to exclude judicial review are construed restrictively.
There are, however, certain areas of governmental activity, national security being the paradigm, which the courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the government 's claim is bona fide.
In this kind of non justiciable area judicial review is not entirely excluded, but very limited.
It has also been said that powers conferred by the Royal Prerogative are inherently unreviewable but since the speeches of the House of Lords in Council of Civil Service Union vs Minister for the Civil Service, this is doubtful.
Lords Diplock, Scarman and Roskill appeared to agree that there is no general distinction between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject matter of a particular power, in that case national security.
Many prerogative powers are in fact concerned with sensitive, non justiciable areas, for example foreign affairs, but some are reviewable in principle, including the prerogatives relating to the civil service where national security is not involved.
Another non justiciable power is the Attorney General 's prerogative to decide whether to institute legal proceedings on behalf of the public interest.
" Much of the above discussion is of little or academic interest as 723 the jurisdiction of the High Court to grant an appropriate writ, direction or order under article 226 of the Constitution is not subject to the archaic constraints on which prerogative writs were issued in England.
Most of the cases in which the English courts had earlier enunciated their limited power to pass on the legality of the exercise of the prerogative were decided at a time when the Courts took a generally rather circumscribed view of their ability to review Ministerial statutory discretion.
The decision of the House of Lords in Padfield 's case marks the emergence of the interventionist judicial attitude that has characterized many recent judgments.
In view of the recent decision of the House of Lords in Council of Civil Service Unions, it would be premature to conclude that in no circumstances would the Court be prepared to apply to the exercise by the Crown of some non statutory powers the same criterion for review as would be applicable were the discretion conferred by statute.
In the ultimate analysis, the present trend of judicial opinion in England on the question as to whether a 'prerogative ' power is reviewable or not depends on whether its subject matter is suitable for judicial control.
All that we need is to end this part of the judgment by extracting the cautionary note administered by H.W.R. Wade in his Administrative Law, 5th edn.
at p. 352 in these words: "On the one hand, where Parliament confers power upon some minister or other authority to be used in discretion, it is obvious that the discretion ought to be that of the designated authority and not that of the court.
Whether the discretion is exercised prudently or imprudently, the authority 's word is to be law and the remedy is to be political only.
On the other hand, Parliament cannot be supposed to have intended that the power should be open to serious abuse.
It must have assumed that the designated authority would act properly and responsibly, with a view to doing what was best in the public interest and most consistent with the policy of the statute.
It is from this presumption that the courts take their warrant to impose legal bounds on even the most extensive discretion.
" We find it rather difficult to sustain the judgment of the High Court in some of the cases where it has interfered with the location of Mandal Headquarters and quashed the impugned notifications on the ground that the Government acted in breach of the guidelines in that one place or the other was more centrally located or that location at the other place would promote general public convenience, or that the 724 headquarters should be fixed at a particular place with a view to develop the area surrounded by it.
The location of headquarters by the Government by the issue of the final notification under sub section
(5) of section 3 of the Act was on a consideration by the Cabinet Sub Committee of the proposals submitted by the Collectors concerned and the objections and suggestions received from the local authorities like the gram panchayats and the general public.
Even assuming that the Government while accepting the recommendations of the Cabinet Sub Committee directed that the Mandal Headquarters should be at place 'X ' rather than place 'Y ' as recommended by the Collector concerned in a particular case, the High Court would not have issued a writ in the nature of mandamus to enforce the guidelines which were nothing more than administrative instructions not having any statutory force, which did not give rise to any legal right in favour of the writ petitioners.
The result therefore is that Civil Appeals Nos. 1980, 1982, 1985 and 1987 of 1986 and all other appeals and special leave petitions directed against the judgment of the High Court where it has interfered with the location of the Mandal Headquarters, must succeed and are allowed.
The petition filed by the appellants under article 226 of the Constitution before the High Court are accordingly dismissed.
There shall be no order as to costs.
| % This appeal was directed against the judgment of the High Court whereby the High Court had dismissed the writ petition of the appellant, challenging the validity of his detention under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 ( 'The Act ').
The Directorate of Revenue Intelligence (DRI) had information that the appellant was engaged in receipt, storage and disposal of smuggled goods on a large scale.
On a specific information received on March 11, 1987, that large quantity of gold had been received by the appellant and stored at his instance in various premises, the DRI mounted a discreet surveillance in the vicinity of the appellant 's residence, and seized 100 foreign marked gold biscuits from Uttam Chand, a milk vendor.
Uttam Chand disclosed that the said gold had been given to him by the appellant.
He also disclosed that the appellant had given him 300 gold biscuits, and the remaining 200 gold biscuits had been taken away from him by Raj Kumar alias Chhotu, the servant of the appellant.
Raj Kumar alias Chootu disclosed that he had delivered the said 200 gold biscuits to one Bhuramal Jain.
A search of Bhuramal Jain 's residence resulted in the recovery of the said 200 gold biscuits.
Thus, 300 smuggled gold biscuits were seized by the DRI officers on March 11. 1987.
A provisional order of detention of the appellant dated April 1.
1987 was passed by the respondent No.2, the detaining authority, under section 3(1) of the Act, and duly communicated to the appellant along with the grounds of detention dated April 1, 1987 by the detaining authority.
The case of the appellant was referred to the Advisory Board constituted under sub clause (a) of clause (4) of Article 22 of the Con 43 stitution of India for its opinion, whereupon the Board submitted its report dated May 13, 1987, and the Central Govt.
by its order dated June 24, 1987, in exercise of its powers under section 8(f) of the Act, confirmed the detention of the appellant, etc.
At this stage, it might be mentioned that before the order of detention was passed by the detaining authority, the appellant had been arrested on a charge under section 135 of the .
The appellant challenged the order of detention as confirmed by the Central Government by a writ petition before the High Court which dismissed the same.
Similar detention orders having been passed in respect of the said Uttam Chand, Bhuramal Jain and Raj Kumar alias Chhotu, they had also challenged their detentions by writ petitions before the High Court and the High Court had by the same judgment under appeal allowed their writ petitions and quashed the orders of detention.
The appellant then appealed to this court for relief by special leave .
Dismissing the appeal, the Court, ^ HELD: Per Murari Mohon Dutt, J. It was not correct to say (as contended by counsel for the appellant) that the detaining authority was not aware of the fact that the appellant was already in detention on a charge under section 135 of the .
The detaining authority was fully aware of the fact of the arrest of the appellant as was evident from paragraph 13 of the grounds of detention.
It is not necessary that in the order of detention such awareness of the detaining authority has to be indicated.
It is enough if it appears from the grounds of detention that the detaining authority is aware of the fact that the detenu is already in detention.
[5lC E] It was true that in Uttam Chand 's case, the detaining authority had proceeded on the basis that the offence for which he had been arrested and detained, was a bailable offence.
But the question whether or not a particular offence for which a detenu has been detained, is a bailable or non bailable offence, does not have any bearing on the question of passing an order of detention.
Even though an offence is a non bailable one, an accused may be enlarged on bail.
Again, an offence for which a detenu has been put under detention, may be a bailable offence.
[5lE F] 44 On a conspectus of a number of decisions of this Court.
the Court was of the view that when a detenu is already under detention for an offence, whether bailable or non bailable, the detaining authority will take into consideration the fact of detention of the detenu, and, as laid down by this Court in Smt.
Sashi Aggarwal.
vs State of U.P. (Writ Petition (Crl.) No. 735 of 1987 disposed of on 11.1.1988), there must be compelling reasons to justify his preventive detention in spite of the fact that he is already under detention on the charge of a criminal offence.
There must be material for such compelling reasons and the material or compelling reasons must appear from the grounds of detention that will be communicated to the detenu.
In other words, two facts must appear from the grounds of detention, namely (i) awareness of the detaining authority of the fact that the detenu is already in detention, and (2) there must be compelling reasons justifying such detention, despite the fact that the detenu is already under detention.
[52F H: 53A] In this case, the Court was unable to accept the contention of the appellant that there had been non application of mind by the detaining authority to the relevant facts.
The detaining authority besides being aware of the fact that the appellant was already in detention, had taken into consideration the relevant facts before passing the impugned order of detention under the Act, which was apparent from the grounds of detention.
In the circumstances, the contention that the impugned order of detention should be struck down on the ground of non application of mind by the detaining authority, was rejected.
[53C D] It appeared from the observation made by the High Court that the appellant, without making any prayer before the Advisory Body for the examination of his witnesses or for giving him assistance of his friend, started arguing his own case, which in all probability, had given an impression to the members of the Advisory Board that the appellant would not examine any witness.
The appellant should have made a specific prayer before the Advisory Board that he would examine witnesses, who were standing outside.
The appellant had not made any such request to the Advisory Board.
There was no reason for not accepting the statement of the detaining authority that the appellant had been permitted by the Advisory Board to have the assistance of an advocate or a friend at the time of hearing, but the appellant had not availed himself of the same.
In the circumstances, the court did not think that there was any substance in the contention of the appellant that the Advisory Board had acted illegally and in violation of the principles of natural justice in not examining the witnesses produced by the appellant at the meeting of the Advisory Board and in not 45 giving permission to the appellant to have the assistance of his friend.
[54H; 55A C] The appellant contended that both the Government and the detaining authority made unreasonable delay in disposing of the representations made by his wife and by himself, and that the representations were not considered independently inasmuch as the same were disposed of after the Advisory Board submitted its report, and in view of the above facts, the order of detention was illegal and invalid.
[55D E] In regard to the representation of the appellant 's wife dated 11.4.1987, it appeared from paragraph 2 of the additional affidavit of Mr. S.K. Choudhary, Under Secretary, Ministry of Finance, Department of Revenue, New Delhi, that comments from the DRI were received by the senior Technical officer on 28.4.1987.
He could not take action on 28.4.1987 as hearing of the appellant 's case before the Advisory Board was fixed on that date.
He placed the matter with his note before the detaining authority on 30.4.87.
It was apparent that the Senior Technical officer dealt with the matter immediately on getting the comments from the DRI and there was delay in putting up the matter before the detaining authority or the Government, as the case might be.
[55F, H; 56D, E] It was submitted on behalf of the appellant that the detaining authority had no jurisdiction to reject the representation when it was meant for the Government.
Mr. Kuldip Singh, Additional Solicitor General pointed out on a reference to record that the detaining authority had not rejected the representation but only commented "merits rejection".
The Court could not accept the contention of the appellant that the said comment of the detaining authority had influenced the mind of the Minister, who had considered the representation on behalf of the Government, and that there was no necessity for getting a comment from the detaining authority.
Unless the comments of the relevant authorities are placed before the Minister, it will be difficult for him to properly consider the representation.
There was no substance in the contention that any comment from the detaining authority would influence the mind of the Government.
Such assumption was without foundation.
The contention was rejected.
[56H; 57A D] As regards the representation dated 23.4.
1987 of the appellant to the detaining authority, it was rejected as stated in the said additional affidavit, by the detaining authority on 4.5.87, and the Additional 46 solicitor General pointed out with reference to the records that file had not been forwarded to the Minister after the rejection of the representation by the detaining authority.
In the Court 's opinion, nothing turned on the fact that after the representation had been rejected, the relevant file had been sent to the Minister for his consideration.
The Court was also told by the Additional Solicitor General that the report of the Advisory Board was dated May 13, 1987 and both the representations had been disposed of by the detaining authority and the Government on May 6, 1987, that is, much before the report of the Advisory Board.
It was apparent that as the report of the Advisory Board was dated May 13, 1987, there was no foundation for the contention of the appellant that the consideration of the representations had been influenced by the report of the Advisory Board.
[57D H; 58A B] As regards the appellant 's grievance that he was not supplied with the copies of the documents relied upon by the detaining authority along with the grounds of detention, there was no factual foundation in the complaint made by the appellant that he had not been supplied with the relevant documents along with the grounds of detention.
[58D] The contention of the appellant that the Government had not applied its mind while confirming his detention for the maximum period of one year as prescribed in section 10 of the Act, was, in the Court 's opinion, devoid of any merit.
Section 10 does not provide that in imposing the maximum period of detention, any reason has to be given.
In confirming the order of detention, it may be reasonably presumed that the Government has applied its mind to all the relevant facts, and if it imposes the maximum period of detention, it cannot be said that the Government has not applied its mind to the period of detention.
Under section lt of the Act, a detention order may, at any time be revoked or modified by the Government.
The court did not think, in the circumstances, that the detenu was in the least prejudiced or that there had been non application of mind by the Government to the question of period of detention of the detenu.
[58E H: 59A] The judgment of the High Court was affirmed.
[59B] Per K. Jagannatha Shetty, J. (concurring) The first question was as to the legality of an order of detention of a person who was already in custody.
The Law Report contains several decisions on this point and they furnish an instructive lesson for both l l sides.
In all the cases, there is, however, one uniform principle stated 47 and reiterated.
It is this: the detaining authority must have awareness of the fact that the detenu is already in custody and yet for compelling reason his preventive detention is found necessary.
[59C D] The question now raised was what should be the compelling reason justifying the preventive detention if the person was already in jail and where one should find it? Is it from the grounds of detention or apart from the grounds of detention? [59D E] It was urged that apart from the grounds of detention, there must be some other material disclosed to the detaining authority that if the detenu was released on bail, he would again carry on the prejudicial activity.
His Lordship did not think that the contention was sound.
There cannot be any other material which can enter into the satisfaction of the detaining authority, apart from the grounds of detention and connected facts therein.
The satisfaction of the detaining authority can not be reached on extraneous matters.
The need to put a person under preventive detention depends only upon the grounds of detention.
The activities of the detenu may not be isolated or casual.
They may be continuous or part of a transaction or racket prejudicial to the conservation or augmentation of foreign exchange.
Then, there may be need to put the person under preventive detention, notwithstanding the fact that he is under custody in connection with a case.
There could not, however, be any uniform principle to be applied in this regard.
Each case had to be judged on its own facts and grounds of detention.
If the grounds are germane, it would be perfectly legitimate exercise of power to make an order of detention.
[59E G: 60B C] In this case, having regard to the nature of the grounds furnished to the detenu, there was hardly any justification to find fault with the order of detention [60C] The next aspect which needed to be clarified was whether it was necessary for the concerned authority to give special reasons for directing the detention for the maximum period prescribed under the Act.
It was urged that it was a must for the concerned authority to give special reasons, and if no such reasons were given, then, it amounted to non application of the mind.
The Court was unable to subscribe to this view.
It was against the purpose and scheme of the COFEPOSA Act.
The order made under section 3(1) is in the nature of an interim order.
It is subject to the opinion of the Advisory Board under section 8(f) of the COFEPOSA Act.
If the Advisory Board reports that there is in its opinion sufficient cause for the detention of the person, the concerned 48 authority may confirm and continue the detention of the person for such period as it thinks fit.
The expression "as it thinks fit" in section 8(f) of the Act indicates that the concerned authority after considering the report of the Advisory Board may fix any period for detention.
The authority is not required to give any special reason either for fixing a shorter period or for fixing the maximum period prescribed under section 10.
The opinion of the Advisory Board and the grounds of detention are the only basis for confirming and continuing the detention.
Section 11 provides for revocation or modification of the detention order at any time.
When the power to revoke the order of detention could be exercised at any time, it is not necessary for the authority to articulate special reasons for continuing the detention for any period much less for the maximum period prescribed under the Act.
[60D E, G H; 61E G] Rameshwar Shaw vs District Magistrate Burdwan, ; ; Ramesh Yadav vs District magistrate, Etah, ; Suraj Pal Sahu vs State of Maharashtra, ; ; 391, Smt.
Sashi Aggarwal vs State of U.P., (writ petition (Crl.) No. 735 of 1987 disposed of by this court on 11.1.1988) and Bharat vs District magistrate, , referred to.
|
minal Appeal No. 164 of 1967.
Appeal by special leave from the judgment and order dated October 14, 1966 of the Allahabad High Court, Lucknow Bench, in Criminal Appeal No. 425 of 1964.
O. P. Varma, for the appellant.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by Dua, J.
Subedar, appellant, has come up an appeal by special leave from his conviction under section 396 read with section 109, I.P.C. and sentence of life imprisonment imposed by the temporary Civil & Sessions Judge, Hardoi and affirmed on appeal by the Allabad High Court according to which the appellant 's case is covered by the second and third clauses of section 107, I.P.C. read with Explanation 2.
Seven persons, including the appellant, were tried, fixe under section 396, I.P.C. and Subedar, appellant, and Tota under section 396 read with section 109, I.P.C. The trial court convicted six and acquitted one.
The appeal of the convicted persons to the High Court failed.
In this Court only Subedar has appealed.
According to the courts below Subedar and Tota were not amongst the dacoits.
They are, however, stated to have assembled at the time of the dacoity which was committed on the night between the 21st and 22nd March, 1963.
Subedar, it is not disputed, is a first cousin of the victims of the dacoity (Gajodhar 828 and Chhotey Lal) and is a resident of village Zafarpur where the dacoity was committed.
Gajodhar, it may be stated, was killed during the course of the dacoity.
The circumstances on which the prosecution relied against Subedar in the High Court are (1) bitter enmity between Gajodhar and Chhotey Lal and, Subedar and Tota who are fast friends on the other; (2) the nature of the incident suggests that the primary object of the culprits was to commit the murder of Gajodhar and Chhotey Lal and touch the culprits did not succeed in killing Chhotey Lal his property was looted as an incidental venture; (3) on the evening preceding the night of dacoity, Subedar and Tota were seen in a grove south of the village within less than a mile from Zafarpur in the company of five or six persons including appellant, Gajju son of Chheda, armed with kantas, bhallas and lathis.
On the night following the dacoity was committed at the house of Gajodhar and Chhotey Lal when Gajodhar was killed and Chhotey Lal seriously injured and in the commission of that offence Gajju son of Chheda participated; (4) Subedar, who was inimical towards Gajodhar.
and Chhotey Lal tried to show false sympathy for them by raising an alarm at the time of dacoity; (5) on the following morning Subedar lodged first information report by way of Peshabandi in order to, put the police on wrong track.
None of these circumstances is, in our view, established on the record; nor can they be considered either singly or collectively to be sufficiently cogent to bring home to the appellant abetment of the offence under section 396, I.P.C. beyond the possibility of a reasonable doubt.
According to Chhotey Lal undoubtedly there was a dispute in regard to property between him and the appellant who is his first cousin and indeed court litigation was pending between them.
But it seems to be an exaggeration to say that there was bitter enmity between the parties.
In support of the second circumstance also we are unable to find any evidence on the record.
The inference seems to be conjectural, not supported by the material on the record on any rational basis.
The charge under section 396, I.P.C. also postulates murder in the course of the commission of dacoity and does not quite support the High Court 's view.
In any event it does not implicate the appellant.
After dealing with the last two circumstances we will turn to the third.
Subedar, it is conceded, actually lodged the first information report (exhibit Ka 7) on the, morning of 22nd March.
It was a writ 829 ten report covering nearly three printed pages.
Now, merely because there was some dispute or litigation pending in courts between the parties it does not follow that the report was lodged by the appellant with the object of misleading the police or in order to forestall suspicion against him.
From the contents of the report it is not possible to draw this inference.
There is nothing mis leading in it and certainly nothing indicative of a design to put the police on a wrong track.
In fact its detailed nature suggests.
that it must have emanated from the persons who had taken full account of the loss and had even evaluated the articles stolen.
The dacoity and murder it may be recalled was committed on the night between 21st and 22nd March.
The written information was given by Subedar on the morning of the 22nd at 6.15 a. M. at the police station about 7 miles away.
In these circumstances the suggestion of Peshabandi (to forestall suspicion) by the appellant seems to be wholly insupportable.
Chhotey Lal, who appeared as P.W. 2, admitted in his cross examination that Subedar, accused, had gone to the, police station to lodge a report regarding the occurrence in question.
Though he denied that he had sent Subedar to lodge the report he was constrained to admit that the following day at 9 or 10 O 'clock the Sub Inspector had also told him that Subedar had gone to the police station to lodge the report.
He also admitted that when the Sub Inspector informed him about Subedar having gone to lodge the report on his behalf he did not tell the Sub Inspector that Subedar was inimical to him and his report should, therefore , be shown to him for scrutiny The detailed nature of the report, the contents of which have not been show in to be incorrect, were presumably given to the appellant by Chhotey Lal.
These circumstances support rather than negative the theory that Chhotey Lal had sent Subedar for lodging the report.
There is, however, positive evidence in the statement of Dammar (P.W. 5) that Chhotey Lal had sent the appellant to lodge airport.
Dammar (P.W. 5) had also accompanied Subedar along with Lila Pradhan and the chowkidar.
We see no reason for disbelieving the testimony of P.W. 5.
P.W. 17 Chaudhari Ishrat Husain, Sub Inspector, has stated that Subedar was arrested by him on the 15th April, 1963 The statement of Babu Ram (P.W. 7) and Khanna (P.W. 8), the two witnesses on whose evidence the appellant is convicted were recorded by him on the 28th March, 1963.
It is, however, not known as to what they had stated during the investigation.
A day earlier on 27th March, 1963 P.W. 17 had actually framed a charge sheet against Jitta and Gajjoo son of Rupan Pasi.
On the,.
9th April, 1963 an application by Chhotey Lal was received by P.W. 17 in which suspicion was cast on Subedar and Tota.
Prior to 9th April, according this witness, he had no proof of these two persons having participated in the dacoity though he admits that he had already recorded Chhotey Lal 's statement before 9th April.
In fact Sub Inspector Deorary (P.W. 15) had recorded 830 Chhotey Lal 's statement as early as March 22, 1963 and it was from P.W. 15 that P.W. 17 took over the investigation.
P.W. 15 does not say that Chhotey Lal or anyone else suspected the, appellant The foregoing discussion strongly indicates that the implication of Subedar, appellant, was an after thought.
Circumstances nos.
4 and 5 have thus no basis and appear to be purely conjectural.
We may now appropriately refer to the statements of the, two witnesses whose sole, testimony appears to be the basis of the appellants conviction.
The third circumstance is found on their evidence.
Babu Ram (P.W. 7) whose statement was recorded in court on the 28th March, 1964 has deposed that about a year earlier he was returning to his village, from the Consolidation Office at Thomharwa in the evening when the sun was about to set.
Khanna and Bashir were with him.
When they reached near the big grove lying to the south of village Daulatpur, he saw five or Six persons in the grove.
Out of them he knew only Tota and with Subedar.
Others were not known to him.
They were armed ballam, kanta and lathis.
On the same night a dacoity was committed at the residence of Gajodhar and he was killed by the dacoits.
Khanna (P.W. 8) has deposed in similar terms.
The contradictions elicited in their cross examination would show that their statement on the question of the presence of the appellant in the grove, cannot be safely relied upon.
According to Babu Ram who had on the day in question gone from Katghara (which was also the village of Khanua, P.W. 8) to the Consolidation Office in village Thomharwa along with Khanna and Bashir, they had made merely oral request in regard to their grievance without subMitting any application.
Khanna (P.W. 8) has, on the other hand, stated that Bashir and Babu Ram met him only on his way back home.
He professes to have submitted his application but expresses ignorance about Babu Ram and Bashir having done so because they had not met him, in the Consolidation Office.
This contradiction on the facts and circumstances of this case is very material and casts a serious doubt on the veracity of their version in regard to the circumstances in which they profess to have seen the appellant I near the grove.
In their cross examination a suggestion was also thrown that Subedar had appeared as a defence witness in a case, against one Jailal, Chamar, in which case these two witnesses had appeared for the prosecution.
This suggestion was apparently intended to indicate the motive on the part of these two witnesses to falsely implicate the appellant.
The evidence of these two witnesses seems to us to be too infirm to carry conviction to their deposition that they saw the appellant as alleged.
It is indeed some what surprising how their evidence was accepted by the courts below, without appropriate scrutiny, in holding the presence of the appellant in the grove.
But even assuming that the appellant was seen by them as alleged, that by 831 itself is not sufficient to connect him with the offence charged.
It cannot be said that from this it follows as a necessary and the only rational or reasonable inference that the appellant was as abetter of the dacoity _and murder.
On a practical approach the reasonable possibility of his innocence cannot be ruled out.
The courts below have erroneously ignored this vital aspect.
At this stage we may refer to some evidence which was recorded in the High Court on appeal.
It appears that on behalf of the present appellant and Tota it was complained in the High Court by their counsel that the circumstance that these two accused persons had been seen with the culprits who Committed dacoity in question was not clearly put to them under section 342, Cr.
P.C. by the trial court, and that they were misled in their defence because the trial court had questioned them in a manner which suggested that they been charged with having actually committed dacoity along with the other culprits.
The High Court, therefore, summoned Subedar and Tota who were on bail.
This order was passed on 11th August, ' 1966.
Subedar was accordingly examined by the High, Court on the 24th August and was confronted with the statement of Babu Ram and Khanna (PWs 7 and 8).
The appellant denied that he was ever in the grove as stated by these witnesses and stated that he had enmity with them and added that they were police witnesses.
Subedar also expressed a desire to produce witnesses in his defence.
Lila Pradhan was in the circumstances examined by the High Court as D.W. 4.
It may be, recalled that according to Danunar, Lila Pradhan was also one of the persons who had gone to lodge the report with him and Subedar.
Lila Pradhan deposed in his examination in chief in the High Court that Chhotey Lal had asked Subedar to go and lodge a report in the police station about the dacoity in question.
Subedar also raised an alarm at the time of the dacoity.
This witness, after his cross examination by the counsel for the State., was examined by the High Court at some length He was village Pradhan for six years.
His statement seems to be a frank and straightforward.
From the evidence on the record we are also, inclined to think that the appellant must have been included in the original list of prosecution witnesses.
This view finds Support from the statement of Sub Inspector, Deorary, (P.W. 15) who had recorded the statements of Chhotey Lal and Dammar and of other witness" on the day following the. dacoity, P.W. 17 seems to us to have wrongly denied this fact.
Apart from the material which we have just discussed.
there is no other relevant material to which our attention has been invited or which we have come across on this record relevant to the case against Subedar.
From this it is crystal clear that there was no real suspicion against Subedar and that it was in April that be was involved as an afterthought presumably because of some other ulterior consideration.
Both the trial court and the High 832 Court seem to us to have completely gone wrong in convicting Subedar.
The respondent 's counsel strongly contended that this Court should not interfere On Special leave appeal under article 136 with the conclusions of the two courts below holding die appellant guilty.
We do not agree with this submission.
This Court undoubtedly does not normally proceed to review and reappraise for itself the evidence in criminal cases when hearing appeals under article 136.
But when the judgment under appeal has resulted in grave miscarriage of justice by some misapprehension or mistake in the reading of evidence or by ignoring material evidence, then it is not only empowered but is expected to interfere to promote the cause of justice.
Article 136 is worded in very wide terms and the power conferred by it is not hedged in by any technical hurdles.
This over riding and exceptional power has been vested in this Court to be exercised sparingly and only in furtherance of the cause of justice.
In the present case which depends only on circumstantial evidence, the courts below have completely ignored the warming given by this Court in Hanumant vs The State of Madhya Pradesh(1) against the danger of conjectures and suspicions taking the place of proof.
The caution was reiterated thus : "It is well to remember that in cases where the evidence of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused.
Again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.
In other words, there must be a chain of evidence so far complete is not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act , must have been done by the accused." (PP 1097 8).
Of course,the evidence on basic or primary facts has to be approached in the ordinary practical way but the conclusions in the case of circumstantial evidence must necessarily point only to the guilt of the accused excluding any reasonable possibility of his innocence.
We are not satisfied that the evidence against the appellant in this case satisfies this test.
The appeal accordingly succeeds.
The order of the court below as against the appellant is set aside and the appellant acquitted.
Y.P. Appeal allowed.
(1) (1952) S.C.R. 1091.
| The, assesses who were dealers in food grains supplied to the Regional Food Controller diverse quantities of wheat in compliance with the provisions of the U.P. Wheat Procurement (Levy) Order, 1959.
The Sales tax Officer levied tax under the U.P. Sales tax Act on the aggregate of the price of wheat supplied by the assesses, rejecting the assesses ' contention that the wheat supplied was not sold to the Controller.
In appeal, the Assistant Commissioner (Judicial) Sales Tax held the supply was not taxable since there was no "sale" within the U.P. Sales tax Act.
This order was confirmed by the Additional Judge (Revision) Sales Tax.
On reference, the High Court answered the question against the assesses.
Allowing the assesses ' appeal by special leave, this Court.
HELD : The supply, pursuant to cf. 3 of the U.P. Wheat Procurement (Levy) Order, 1959 and acceptance thereof, does not result in a contract of sale.
Clause 3 of the order sets up a machinery for compulsory acquisition by the State Government of stocks of wheat belonging to the licensed dealers.
The Order contains a bald injunction to supply wheat of the specified quantity day after day, and enacts that in default of compliance the dealer is liable to be punished; it does not envisage any consensual arrangement.
To ensure, that the dealer carries out his obligation his premises are liable to be searched and his property sequestered.
The order does not require the State Government to enter into even an informal contract.
Sale of goods predicates a contract of sale between persons competentto contract for a price paid or promised : a transaction.
in which an obligation to supply goods is imposed, and which does not involve an obligation to enter into a contract, cannot be called a 'sale ', even if the person supplying goods is declared entitled to the value of goods, which is determined or determinable in the manner prescribed.
Assuming that between the licensed dealer and the Controller, there may be some arrangement about the place and manner of delivery of wheat, and the payment of "controlled price," the operation of cl. 3 does not on that account become contractual.
[675 H 676 D] Commissioner of Sales Tax, U.P. Lucknow vs Ram Bilas Ram Gopal, [1969] All.
L.J. 424; State of Madras vs Gannon Dunkerlev and Co.,(Madras) Ltd; [1959]S.C.R. 379 M/s.
New India Sugar Mills Ltd. vs
Commissioner of Sales Tax, Bihar, [1963] Suppl.
2 S.C.R. 459; Indian Steel & Wire Products Ltd., vs State of Madras, ; ;Andhra Sugars Ltd. &Anr.
vs State of Andhra Pradesh & Ors.
; ; State ofRajasthan & Anr.
vs M/s. Karan Chand Thappar & Bros. Ltd. [1969] IS.C.R. 861, Kirkness (inspector of Taxes) vs john Hudson & Co. Ltd., [1955] A.C. 696 referred to. 672
|
Civil Appeal No.94 of 1949.
107 834 Appeal from a judgment and decree of the High Court of Judi cature at Patna in Appeal from Appellate Decree No. 97 of 1946 (Mannohar Lall and Mukherji JJ.) dated 23rd Decem ber, 1947, confirming the judgment of the District Judge of Purulia in Appeal No. 159 of 1944.
S.P. Sinha (P. K. Bose, with him) for the appel lant.
N.C. Chatterjee and Panchanan Ghosh (Chandra Narayan Naik, with them) for the respondent. 1950.
December 1.
The Judgment of the Court was deliv ered by PATANJALI SASTRI J.
This appeal arises out of a suit brought by the respondent in the court of the Subordinate Judge, Dhanbad, for recovery of arrears of royalty and cess from the appellant and another alleged to be due under a compromise decree passed on the 6th March, 1923, in a previ ous suit between the predecessors in interest of the par ties.
The only plea which is material for the purpose of this appeal is that the compromise decree not having been registered was inadmissible in evidence.
The courts below held that the document did not require registration and gave effect to its terms in decreeing the suit.
The second defendant has preferred this appeal.
The facts are not now in dispute and may be briefly stated.
On 11th March, 1921, one Kumar Krishna Prasad Singh (hereinafter referred to as Kumar) granted a perma nent lease of the right to the underground coal in 5,800 bighas of land belonging to him to Shibsaran Singh and Sitaram Singh (hereinafter referred to as the Singhs) by a registered patta stipulating for a salami of Rs. 8,000 and royalty at the rate of 2a.
per ton of coal raised subject to a minimum of Rs. 8,000 and for certain other cesses and interest.
On 7th June, 1921, Kumar executed another perma nent patta leasing the right to the coal in 500 bighas out of the 5,800 bighas referred to above to one Prayngji Bal lavji Deoshi and his son Harakchand Deoshi (hereinafter referred to as the Deoshis).
By this document.
835 the Deoshis agreed inter alia to pay royalty at the rate of 2a. per ton on all classes of coal raised subject to a minimum of Rs. 750 a year.
The Singhs feeling themselves aggrieved by the latter transaction brought a title suit (No. 1291 of 1921) in the Court of the Subordinate Judge of Dhanbad for a declaration of their title and for possession of the 500 bighas leased to the Deoshis under the aforesaid patta of 7th June, 1921.
To that suit Kumar was made a party as defendant No. 3, the Deoshis being defendants 1 and 2.
The suit was however cornpromised on 6th March, 1923, by all the parties and a decree based on the compromise was also passed on the same day.
The interest of the Singhs was brought to sale in 193S in execution of a decree obtained against them and was purchased by the plaintiff who insti tuted the presnt suit on 3rd October, 1942, claiming the royalty and cesses payable under the compromise decree for the period from Pous 1345 to Asadh 1349 B.S. from defendants 1 and 2 as the representatives of the Deoshis who entered into the compromise of March, 1923.
In order to appreciate the contentions of the parties, it is necessary to set out the relevant terms of the compro mise decree which are as follows : "The plaintiffs (the Singhs) within two months from this date shall pay Rs. 8,000 as salami to defendant No. 3 (Kumar).
Otherwise all the terms of the compromise Will stand cancelled and the plaintiffs shall not be competent to claim any right to or possession over the.land covered by the patta dated 11th March, 1921.
The patta which defend ant No. 3 executed in favour of the plaintiffs in respect of 5,800 bighas of coal land in village Rahraband shall remain in force, and the plaintiffs will get a decree of declara tion of their right and title to the 500 bighas of coal land in dispute but defendants 1 and 2 (the Deoshis) shall hold possession as tenants.
Besides the terms mentioned below, defendants 1 and 2 shall remain bound by all the remaining terms under which they took settlement of the 500 bighas of coal land from defendant No. 3 under 836 patta and Kabuliyat, and both the defendants 1 and 2 shall possess the same under the plaintiffs from generation to generation and all the terms of the said patta and Kabuliyat shall remain effective and in force between them.
Both the defendants 1 and 2 shall remain bound to pay to the plain tiffs commission at the rate of 2a.
per ton on all sorts of coal instead of 2a.
a ton as stated before in the patta of 5,800 bighas of land settled with the plaintiffs.
The plaintiffs shall pay to defendant No. 3 in future the mini mum royalty of Rs. 6,000 instead of Rs. 8,000 as stipulated in the original patta of 11 th March 1921 and commission at the rate of la.
a ton in place of 2a.
a ton as stipulat ed in the patta of March 21 .
Unless the plaintiffs pay to the defendant No. 3 Rs. 8,000 within 2 months from this day they shall not be competent to take out execution of this decree, nor shall they be competent to take posses sion of the land in dispute.
The defendants 1 and 2 within one month from the date of payment of Rs. 8,000 as aforesaid to defendant No. 3 shall execute a new Kabuliyat in favour of the plaintiff in respect of the modified terms stated above, i.e., on the condition to pay commission at the rate of 2a.
per ton.
In the new patta which defendant No. 3 will execute in favour of the plaintiffs he shall embody the condition that the annual minimum royalty will be Rs. 6,000 instead of Rs. 8,000 and commission will be at the rate of la. 9p.
per ton in place of 2a.
per ton as mentioned in the aforesaid patta.
If the defendant No. 3 does not execute the parts on the aforesaid modified terms in favour 'of the plaintiffs within the time aforesaid and both the defendants 1 and 2 also do not execute a kabuliyat on the aforesaid modified terms, then this very rafanama shall be treated as the parts and kabuliyat, and the plaintiffs in accordance with the terms of the rafanama shall pay to defendant No. 3, Rs. 6,000 only as minimum royalty and commission at the rate of la.
per ton with respect to 5,800 bighas and shall continue to realise commission at the rate of 2a. 6p. per ton from defendants 1 and 2 who shall remain bound to pay the same.
" 837 The answer to the question whether this compromise decree requires registration depends on the legal effect of the changes in the status quo ante of the parties brought about by the document.
A careful analysis reveals the following alterations : (1) In the lease to the Singhs, the rate of royalty or commission was reduced from 2a.
per ton of coal raised to la.
per ton and the minimum royalty was reduced from Rs. 8,000 to Rs. 6,000 while the area of coal land in their khas possession was reduced by 500 bighas. (2) In the lease to the Deoshis the rate of royalty or commission was enhanced from 2a.
per ton to 2a.
per ton and tiffs was made payable to the Singhs.
The Singhs and the Deoshis were brought into a new legal relationship, the former accepting the latter as tenants holding the disputed 500 bighas under them in consideration of the latter agreeing to pay the enhanced royalty to the former. (4) The whole arrangement was made conditional on the Singhs paying Rs. 8,000 to Kumar within 2 months from the date of the compromise, it being expressly provided that the Singhs were not to be entitled to execute the decree or to take possession of the disputed area of 503 bighas which evidently had not till then passed into their possession.
Now, sub section (1) of section 17 of the , enumerates five categories of documents of which regis tration is made compulsory which include" (d) leases of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent;".
Sub sec tion (2) however provided that "nothing in clauses (b) and (c) of sub section (1)applies to . (vi) any decree or order of court.
" It may be mentioned in passing that this clause was amended with affect from the 1st April, 1930, by the , so as to exclude from the scope of the exception compromise decrees comprising immovable property other than that which is the subject matter of the suit.
But 838 the amendment cannot affect the document here in question which came into existence in 1923.
Before the amendment, the clause was held to cover even compromise decrees comprising immovable property which was not the subject matter of the suit: [Vide Hemanta Kumari Debi vs Midnapur Zamindari Co. ( ')].
That decision applies to the present case and obviates the objection that because the compromise in question covered also the remaining 5,300 bighas which were not the subject matter of the title suit of 1921, it was outside the scope of the exception in sub section (2), clause (vi).
The only question, therefore, is whether the compromise decree is a "lease" [which expression includes "an agreement to lease" by the definition in section 2 (7)] within the meaning of el.
(d) of sub section (1).
It is obvious that if the compromise decree fails within clause (d) of sub section (1) it would not be protected under clause (vi) of sub section (2) which excepts only documents falling under the categories (b) and (c) of sub section (1).
The High Court was of opinion that, on a proper construction of the terms of the compromise, it did not fall under clause (d).
Mano har Lall J., who delivered the leading judgment, observed: "It was a tripartite agreement embodied in the decree of the court and was, therefore, exempt from registration.
It will be oh.served also that so far as the defendants were con cerned, their possession of the 500 bighas was not inter fered with and they still remained in possession as the lessees, but instead of paying the royalty to the plaintiffs it was agreed between all the parties that the defendants would pay the royalty in future to Shibsaran and Sitcram.
If the matter had stood there, the learned Advocate for the appellant could not have seriously contested the position, but he vehemently argued that when the agreement was not to pay the same amount of royalty or commission as previously agreed to but an altered amount of royalty and commission, the document should be held to fall within the mischief of section 17 (1)(d)of the (1) P.C. 839 .
The answer to this contention is, as I have stated just now, to be found in the Full Bench decision of this court :" [see Charu Chandra Mitra 's case ()].
It was there held that a mere alteration of the rent reserved does not make the transaction a new lease so as to bring it within clause (d)of subsection (1).
We are unable to share this view.
It oversimplifies the compromise transaction which, in our opinion, involves much more than a mere alteration of the royalties stipulated for in the previous pattas executed by Kumar.
Nor can we accept the suggestion of Mr. Chatterjee for the respondents theft the compromise operated as an assignment to the Singhs by Kumar of the latter 's reversion under the "lease granted to the Deoshis and all that the latter did was to acknowledge the Singhs as their landlords and attern to them.
On tiffs view it was said that the transaction would not fall under clause (d), although it would fall under clause (b) but then would be saved by the exception in clause (vi) of sub section (2).
The argument, however, overlooks that Kumar had leased the area of 5,800 bighas to the Singhs by his patta dated 11th March, 1921, and the compromise by providing that the Singhs should pay the reduced royalty of 1a.
per ton in respect of the whole area preserved Kumar 's reversion intact.
He could not therefore be deemed to have assigned any part of his inter est in 5,800 bighas as landlord to the Singhs who continue to hold the entire extent as tenants under him.
What the compromise really did was.
as stated already, to bring the Singhs and the Deoshis into a new legal relationship as underlessor and under lessee in respect of 500 bighas which were the subject matter of the title suit; in other words, its legal effect was to create a perpetual underlease be tween the Singhs and the Deoshis which would clearly fall under clause (d) but for the circumstance that it was to take effect only on condition float the Singhs paid Rs. 8,000 to Kumar within 2 months (1) 840 thereafter.
As pointed out by the Judicial Committee in Hemanta Kumar 's case (1) "An agreement for a lease, which a lease is by the statute declared to include, must, in their Lordships ' opinion, be a document which effects an actual demise and operates as a lease .
The phrase which in the context where it occurs and in the statute in which it is found, must in their opinion relate to some document which creates a present and immediate interest in the land.
" The compromise decree expressly provides that unless the sum of Rs. 8,000 was paid within the stipulated time the Singhs were not to execute the decree or to take possession of the disputed property.
Until the payment was made it was impossible to determine whether there would be any under lease or not.
Such a contingent agreement is not within clause (d) and although it is covered by clause (b). is excepted by clause (vi) of sub section ( '2).
We therefore agree with the conclusion of the High Court though on dif ferent grounds and dismiss the appeal with costs.
Appeal dismisseel.
| The appellant who was carrying on business in food grains in partnership with another person submitted the returns of the income of the firm for the accounting years even after his partner 's death.
It was found that certain income of the firm was concealed and the Income tax Officer not only assessed the firm to tax for the suppressed income but also imposed penalties for concealing the said income.
Appeals to the higher income tax authorities failed and the appellant then applied to the High Court for a writ of certiorari quashing the orders of assessment and imposition of penalty on the ground inter alia that the firm was dissolved by his partner 's death and no penalty could be imposed after dissolution of the firm, The High Court rejected the petition.
On appeal with the certificate of the High Court, Held, that by virtue of section 44 and other provisions of the Income Tax Act a partner of a dissolved partnership firm may not only be made liable to assessment for income tax for the accounting years but despite dissolution of the firm he may be made liable to pay penalty for concealing the income of the firm under section 28(1)(c) of the Act.
The analogy of dissolution of a Hindu joint Family does not apply to dissolution of a partnership.
Mareddi Krishna Reddy vs Income tax Officer, Tenali, , approved.
Commissioner of Income tax vs Ravalaseema Oil Mills, and section V. Veerappan Chettiar vs Commissioner of Income tax, Madras, , disapproved.
Mahankali Subbarao vs Commissioner of Income tax, , distinguished.
The Legislature intended that the provisions of Ch.
IV of the Act shall apply to a firm even after discontinuance of its business.
In interpreting a fiscal statute the Court cannot proceed to make good deficiencies if there be any.
In case of doubt it should be interpreted in favour of the tax payer.
The expression "assessment" has different connotations an has been used in its widest connotation in Ch.
IV and section 44 97 766 he Act.
It is not restricted only to computation of tax but includes imposition of penalty on tax payers found in the process of assessment guilty of concealing income.
Commissioner of Income tax, Bombay Presidency and Aden vs Khemchand Ramdas, , referred to.
The Income tax Act provided a complete machinery for obtaining relief against improper orders passed by the Income tax Authorities and the appellant could not be permitted to abandon that machinery, and invoke the jurisdiction of the High Court under article 226 of the Constitution against the orders of the taxing authorities.
|
ivil Appeal No. 1012 of 1987.
From the Judgment and Order dated 24.9.86 of the Gujarat High 415 Court in B.I .P.A.
No. 259 of 1986.
B. Datta, P.H. Parekh and Ms. Shalini Soni for the Appel lants.
T.U. Mehta and M.N. Shroff for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The appellants are in the cadre of Talatiscum Mantries (Patwaries) in the Panchayat Service of the State of Gujarat.
In the year 1982/83 they were sent on deputation to the higher cadre of Circle Inspectors in the State service.
The question for consideration is whether in the facts of this case the appellants have a right to be absorbed in the cadre of Circle Inspectors.
The appellants were originally appointed as Talatis in the Revenue Department of the State of Gujarat.
Under the Gujarat Panchayat Act (hereinafter called 'the Act ') which came into force with effect from April 1, 1963, Panchayat Service was constituted and under the Act all the posts of Talatis along with the incumbents stood transferred to the Panchayat Service.
On that date there was a cadre of Circle Inspectors in the State Service which was bifurcated and 50% of the posts continued in the State Service and the remain ing 50% were transferred to the Panchayat Service.
The appellants were sent on deputation as Circle Inspectors in the State Cadre.
In January 1986 qualified officials became available for promotion to the post of Circle Inspectors in the State cadre and as such the appellants were reverted to their parent cadre of Talatis in the Panchayat service.
The appellants challenged the reversion by way of writ petition in the Gujarat High Court primarily on the ground that their options for absorption in the State Service were pending with the State Government which the State was bound to decide in their favour.
The High Court dismissed the writ petition holding that there was nothing on the record to show that the appellants gave any option to be absorbed in the State cadre.
The High Court also found that they, being on deputation, have no legal right to be absorbed in the State Service.
This appeal by special leave is against the judgment of the High Court.
We have heard learned counsel for the parties.
The State by a circular dated February 8, 1965 asked the Talatis among others to give their options as to whether they want to remain in the Panchayat Service or to be re allocated to the State Service.
Section 206A(2) of the Act is as under: 416 "Any officer or servant who is not reallocated under sub section (1) and continues in the Panchayat Service immediately before the expiry of the aforesaid period of four years, shall on such expiry, be deemed to be finally allocated to the Panchayat Service.
" It is clear from the above quoted provision that a Panchayat servant who is not reallocated within a period of four years from.
April 1, 1963 would be deemed to be finally allocated to the Panchayat Service.
The High Court has held that the appellants have not been able to show that they made any such options before March 31, 1967.
Even if it is assumed that the appellants gave some sort of option the same having not been accepted before March 31, 1967, the appellants stood finally allocated to the Panchayat Service.
The appellants being on deputation they could be revert ed to their parent cadre at any time and they do not get any right to be absorbed on the deputation post.
We see no infirmity in the judgment of the High Court and as such we dismiss the appeal.
There shall be no order as to costs.
T.N.A. Appeal dismissed.
| The lands in question are situate in lot Ahiyapur which is one of the villages forming part of the permanently settled estate of Burdwan and had been set apart as Chaukidari Chakaran lands to be held by the Chaukidars for rendering service in the village as watchmen.
At the time of the permanent settlement the income from these lands was not taken into account in fixing the jama payable on the estate.
Some time before the enactment of the Bengal Patni Taluks Regulation, 1819, the entire village of Ahiyapur was granted by the then 1310 Zamindar of Burdwan, to the predecessors in title of the defendants on Patni settlement.
In 1870 the Village Chaukidari Act came into force and acting under the provisions of that Act the Government put an end to the services of the Chaukidars resumed the lands and imposed an assessment thereon, and, subject to it, transferred the lands to the Zamindar.
On June 3, 899, the Zamindar granted the suit lands on Patni to the predecessors in title of the defendants who were the then holders of the village in Patni.
In proceedings taken by the Zamindar under the provisions of the Bengal Patni Taluks Regulation, 1819, the suit lands were brought to sale for arrears of rent and purchased by him.
On February I3, 1941, the Zamindar sold the lands to the appellant who sued to recover possession thereof from the defendants.
The defendants resisted the suit on the ground, inter alia, that the effect of the grant of the Chaukidari Chakaran lands on June 3, 1899, was to make them part and parcel of the Patni settlement of the village of Ahiyapur and that, in consequence, the sale of those lands, apart from the village of Ahiyapur, was bad as being a sale of a portion of the Patni.
Held, that when the Zamindar made a grant of the Chaukidari Chakaran lands which formed part of a village which had previously been settled in Patni, it was open to the parties to agree that those lands should form a new and distinct Patni and the result of such an agreement would be that while the grantee would hold those lands in Patni right, that is to say, that the tenure would be permanent, heritable and alienable, so far as his liability to pay jama and the corresponding right of the Zamindar to sell it under the Regulation if there was a default in the payment thereof were concerned, the new grant would be a distinct Patni, independent of the original Patni.
Held, further, that construing the grant dated June 3, 899, as a whole, the intention of the parties as expressed therein was that the Chaukidari Chakaran lands were to be treated as a distinct Patni and that, therefore, the sale of the lands for arrears of rent was valid.
|
Appeal No. 281 of 1955.
Appeal from the judgment and order dated March 18, 1954, of the Bombay High Court in Income tax Reference No. 35 of 1953.
K. N. Rajagopal Sastri and D. Gupta, for the appellant.
R. J. Kolah and Ram Ditta Mal, for the respondent.
May 8.
The Judgment of the Court was delivered by HIDAYATULLAH J.
This appeal on a certificate of fitness granted by the High Court of Judicature at Bombay has been filed by the Commissioner of Income tax, Bombay against Ranchhoddas Karsondas of Bombay (hereinafter referred to, as the assessee) under section 66A of the Indian Income tax Act.
The facts leading tip to this appeal are as follows For the assessment year 1945 46, a public notice under section 22(1) of the Income tax Act (hereinafter called the Act) was issued, requiring every person whose total income during the previous year exceeded the maximum amount which was not chargeable to income tax to furnish, within such period not being less than sixty days as might be specified in the notice, a return of his income in the prescribed form and verified in the prescribed manner.
This notice was published on or about May 1, 1945.
The assessee did not make a return of his income.
The Income tax Officer, while examining the books of account of a partnership called the " Assar Syndicate " of which the assessee was a partner, found that in the account year corresponding to the assessment year 1945 46, there were six cash credits aggregating to Rs. 59,026 in the name of the assessee 's wife.
Before, however, the Income tax 116 Officer could take any action, the assessee submitted a " voluntary " return on January 5, 1950 of his income for the accounting year 1944 45 (assessment year 1945 46) showing a total net income of Rs. 1,935.
He added a footnote to the return to the following effect: " My wife has sold her old ornaments and deposited the sum of Rs. 59,026 in the firm of Assar Syndicate in which I am a partner." The Income tax Officer did not act on this return, but on February 27, 1950 he issued a notice purporting to be under section 34 of the Act calling upon the assessee to submit his return.
This notice was served on the assessee on March 3,1950, and in answer thereto, the assessee submitted a similar return on March 14, 1950 showing the same income and adding the same footnote.
The Income tax Officer then issued and served upon the assessee notices under sections 22(4) and 23(2) of the Act asking him to produce his books of account and to tender any evidence he cared to lead.
It appears from the record that these notices were complied with, but on February 26, 1951 the Income tax Officer included the sum of Rs. 59,026 in the total income of the assessee and assessed him on it for the assessment year 1945 46.
The assessee appealed, in turn, to the Appellate Assistant Commissioner and the Income tax Appellate Tribunal.
His contentions were three, viz., that the amount of Rs. 59,026 could not and should not have been included in his income, that the amended section 34 of the Act had no retrospective effect, and that the assessment completed on February 26, 1951 was invalid, inasmuch as it was completed four years after.
the end of the relevant assessment year.
Both the Appellate Assistant Commissioner as well as the Tribunal rejected his contentions, but the Tribunal on being moved by him, raised and referred two questions of law under section 66(1) of the Act to the High Court of Judicature, Bombay, for its decision.
These questions were: " (1) Whether the notice issued under Section 34 of the Act by the Income tax Officer on 27 2 1950, 117 after the assessee had filed a voluntary return was valid in law? (2) Whether the assessment made on 26 2 1951 is valid in law? This reference was heard by the High Court on March 18, 1954, and by a judgment delivered on the same day, Chagla, C.J., and Tendolkar, J., answered ' both the questions in the negative.
Before the High Court, it was again contended by the assessee that since he had submitted a return under section 22(3) of the Act on January 5, 1950, the assessment, if any, had to be completed before March 31, 1950, as required by section 34(3) of the Act.
He also contended that he was entitled under section 22(3) to make a " voluntary " return on the date he did, and with a voluntary return before the Income tax Officer, there was no scope for the issuance of a notice under section 34.
The High Court upheld the contentions of the assessee, and gave its opinion that the Department ought to have issued a notice under section 22(2) within the assessment year, and if no return was made within the time fixed by the notice, the Department should have proceeded under section 23(4) to a 'best judgment ' assessment.
The other alternative for the Department was to issue a notice under section 34 of the Act, if the period for sending a notice under section 22(2) had expired.
But it could not issue a notice under section 34 after a return was already made before it, and the benefit of the extended period of limitation for assessment available under the first proviso to sub section
(3) of section 34 of one year from the service of the notice under sub section
(1) of that section was not available in this case.
The High Court granted a certificate of fitness, and hence this appeal.
The arguments which were urged before the High Court were all raised in this Court by the parties.
The case of the Department was supplemented by an argument that, inasmuch as the assessee had suppressed his income or given incorrect particulars thereof, the period during which action under section 34 could be taken was the extended one of 8 years.
In the arguments before us, our attention was drawn to a cleavage of opinion between the Bombay High 118 Court on the one hand and the Calcutta High Court on the other.
While the Bombay High Court seems to be of the view that a " voluntary " return showing a nontaxable income is still a good return for all purposes under the Act, the Calcutta High Court is of the view that what section 22(1) of the Act requires is a return of taxable income and not a return of income, which shows a loss or is below the taxable limit.
It appears that at one time the Calcutta High Court also entertained the view that such a return was no return at all, but it was explained later that this meant that the return was ineffective for the purposes of section 22(1) of the Act, though it might be a " return " being in the prescribed form.
The Bombay High Court also entertains the view that the assessment proceedings commence with the issue of a public notice, and that section 34 of the Act cannot apply, where in answer to the public notice a return is made whether of taxable income or not.
The view of the Calcutta High Court is that assessment proceedings commence either with a notice under section 22(2) of the Act or with the filing of a return showing taxable income.
We are not here concerned with the quantum but only with the legality of the assessment.
The side issue whether, in point of fact, the cash credits in the name of the wife, represented the income (if the husband does not survive for decision.
Thus, the only question is whether the notice issued under section 34 of the Act on February 27, 1950 (after the assessee filed his " voluntary " return on January 5, 1950) and the assessment thereon, were valid in law.
Section 34(3) of the Act provides that no assessment except the assessment within el.
(a) of sub section
(1) thereof or under section 23 to which el.
(c) of sub section
(1) of section 28 applies, shall be made after the expiry of four years from the end of the year in which income, profits or gains were first assessable.
A proviso, however, allows one year from the date of the service of the notice for the completion of the assessment.
It reads, omitting matters not relevant here: " . where a notice under sub section (1) has been issued within the time therein limited, the assessment or reassessment to be made in pursuance of such 119 notice may be made before the expiry of one year from the date of the service of the notice even if such period exceeds the period of .
four years .
" It is, therefore, quite clear that the extra period is available only if a notice under sub section
(1) of section 34 has been issued within the time therein limited.
This takes us to section 34(1).
Section 34(1), omitting parts not relevant, reads: " (1)If . . . . . . . (a) the Income tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22, for any year.
I or (b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Income tax Officer has in consequence of information in his possession reason to believe that income, profits or gains chargeable to income tax have escaped assessment for any year . he may in cases falling under clause (a) at any time within eight years and in cases falliny under clause (b) at any time within four years of the end of that year, serve on the assessee.
a notice .
and may proceed to assess such income.
" It would appear from this that if the return filed on January 5, 1950, was a return of income, there was no failure or omission on the part of the assessee, so as to bring the matter within section 34(1)(a) of the Act, and subs.
(3) of section 34 would then apply to the case limiting the period to four years.
In that event, the assessment should have been completed on or before March 31, 1950.
But if the return made by the assessee was no return at all, then the conditions under the first subsection of section 34 obtained, and the assessment could be completed within one year of the date of service of the notice (March 3, 1950), i.e. on or before March 2, 1951.
In that event, the assessment would be valid.
The validity of the return in this context is tied to the validity of the notice and also vice versa.
120 Section 22 of the Act (omitting the parts not relevant) may now be quoted: " (1) The Income tax Officer shall, on or before the 1st day of May, in each year, give notice, by publication in the press. , requiring every person whose total income during the previous year exceeded the maximum amount which is not chargeable to income tax to furnish, within such period not being less than sixty days. a return. setting forth. his total income and total world income during that year: (2) In the case of any person whose total income is, in the Income tax Officer 's opinion, of such an amount as to render such person liable to income tax, the Income tax Officer may serve a notice upon him requiring him to furnish, within such period, not being less than thirty days. a return . setting forth . his total income and total world income during the previous year: (3) If any person has not furnished a return within the time allowed by or under sub section (1) or sub section (2), or having furnished a return under either of those sub sections, discovers any omission or wrong statement therein, he may furnish a return or a revised return, as the case may be at any time before the assessment is made.
" It will be seen from this, that, as the Bombay High Court correctly pointed out, there is a time limit provided in sub sections
(1) and (2) and the failure or omission occurs when that period passes, but sub s (3) allows a locus poenitentiae before the assessment is actually made.
There is no dispute that a return could be filed in this case, late though it was.
The controversy centres round the fact that the return, when it was filed, disclosed an income which was below the maximum not chargeable to tax, and the question is whether in such an event the Income tax Officer was precluded from issuing a notice under section 34 of the Act.
There has been in the past a well marked difference of opinion between the Bombay and the Calcutta High 121 Courts, the leading cases in Bombay being Harakchand Makanji & Co. vs Commissioner of Income tax (1), All India Groundnut Syndicate Ltd. vs Commissioner of Income tax(2) and the decision under appeal here, while the Calcutta view is to be found in Commissioner of Agricultural Income tax vs Sultan Ali Gharami (3), R. K. Das & Co. vs Commissioner of Income tax (4) and Commissioner of Income tax vs Govindlal Dutta (5).
To these may be added P. section Rama Iyer vs Commissioner of Income tax (6), in which the Madras High Court has accepted the Bombay view.
No useful purpose will be served in discussing these cases in detail.
In some of them, the point need not have been taken up for decision, though it was.
We shall refer very briefly to the two rival views and the grounds on which they are rested, and in doing so, we begin with the Calcutta decisions.
In Sultan Ali Gharami 's case (3), a notice under section 24(1) of the Bengal Agricultural Income tax Act (corresponding to section 22(1) of the Act) was issued.
No return was filed.
Three years later, a notice under section 24(2) of that Act (corresponding to section 22(2) of the Act) was served, and a return showing an income below the taxable minimum was filed.
The contention was that without a notice under section 24(2) within the assessment year or a notice under section 38(1) (corresponding to section 34 (1) of the Act) the best judgment ' assessment was bad.
The contention further was that the return could be taken to be under section 24(1) or section 24(3).
Chakravarti, J. (as he then was) and Das Gupta, J., held that a person who had no assessable income was not placed under a duty to file a return, that the return whether filed under section 24(1) or section 24(3) which had failed to show an assessable income could not possibly be 'treated ' as a return under section 24(1) or even section 24(3)when filed in answer to a notice under section 24(2).
They further observed at p. 442: " A return under section on 24(1) is a return filed by a person who decides for himself that he had an assessable income in the previous year and by filing (1) (1948) 16 , (4) (1056) (2) (1954) 25 1.
T. R. R (5) (1957) 33 ; (3) 16 122 the return he offers that income for assessment.
A person who had no assessable income in the previous year is placed under no duty by a notice under section 24(1) to furnish a return and a person who thinks, rightly or wrongly, that he had no assessable income will furnish none.
A return under section 24(1), whether filed within the time allowed under the section or filed subsequently under the provisions of section 24(3), will therefore show an assessable income.
A return which showed no assessable income, could not possibly be 'treated ' as a return filed under section 24(1) or a return called for under that section but filed under section 24(3), when in fact it was filed in response to a notice under section 24(2).
" The opinion here expressed was criticised in the judgment under appeal, and in the next case, R. K. Das & Co vs Commissioner of Income tax(1), the Calcutta High Court (Chakravarti, C.J., and Sarkar, J.) explained what was really meant.
It is not necessary to refer to the facts of that case.
This is what Chakravarti, C.J., observed at p. 449: " It should be remembered ', I observed 'that the return in the present case is being sought to be treated as a return under section 24(1), belatedly filed. ' And then I went on to say that a return under section 24(1) would only be filed by a person who thought that he had a taxable income and therefore a return showing an income below the taxable limit could not be held, on a construction thereof, to be a return under section 24(1) and consequently the return in the case we were then considering could not be treated as such a return filed under section 24(3).
To say that, was not to say that even a return filed in, compliance with a notice under section 22(2), if filed belatedly under section 22(3) could not be a return showing an income below the taxable limit.
" This left the matter somewhat ambiguous as to what was really meant, and in Commissioner of Income tax vs Govindlal Dutta(2),Chakravarti, C. J., and Guha, J., (1) (2) 123 again explained the true import of the law laid down.
They referred to section 22(1) of the Act as it stood prior to the amendment of 1953, and observed that under that section a person was required to file a return only if his total income during the preceding year exceeded the maximum amount which was not chargeable to tax.
The return contemplated was thus only a return of income and not a return of loss and not even a return of income, but a return of taxable income.
Not only had a person no duty but he had even no right to file a return voluntarily, if he had suffered a loss, to 'report ' that loss.
The learned Judges concluded that it was a complete mistake to think that section 22(3) provided for the filing of a voluntary return showing loss, at any time, before assessment.
That section, they opined, contemplated the filing of a return of taxable income, and a return not showing such income was not a return at all in law.
The Calcutta view, as shown above, really proceeds upon the wording of section 22(1).
It lays down that the public notice requires only persons having an income above the taxable limit to make a return.
A person who has no such income need not make a return, and if he does make a return, it is not a return which need be considered, being not a return in law.
It is a little difficult to understand how the existence of a return can be ignored, once it has been filed.
A return showing income below the taxable limit can be made even in answer to a notice under section 22(2).
The notice under section 22(1) requires in a general way what a notice under section 22(2) requires of an individual.
If a return of income below the taxable limit is a good return in answer to a notice under section 22(2), there is no reason to think that a return of a similar kind in answer to a public notice is no return at all.
The conclusion does not follow from the words of section 22(1).
No doubt, under that sub section only those persons are required to make a return, whose income is above taxable limits, but a person may legitimately consider himself entitled to certain deductions and allowances, and yet file a return to be on the safe side.
He may show his income and the 124 deductions and allowances he claims.
But it may be that on a correct processing his income may be found to be above the exempted limit.
No doubt, it is futile for a person not liable to tax to rush in with a return, but the return in law is not a mere scrap of paper.
It is a return, such as the assessee considers, represents his true income.
We are unable (and we say this with due respect) to accept the view adumbrated in the Calcutta cases.
The contrary view is expressed by the Bombay High Court in the earlier case of Harakchand Makanji & Co. vs Commissioner of Income tax (1) and in the judgment under appeal.
That view was accepted by the Madras High Court in P. section Rama Iyer vs Commissioner of Income tax (2) and also, in our opinion, is the sounder view of the two.
In the earlier of the two Bombay cases, Chagla, C. J., and Tendolkar, J., held (as stated in the head note): " Notice under section 34 is only necessary if at the end of the assessment year no return has been made by the assessee, and the authorities wished to proceed under section 22(2), but where the assessee himself chooses voluntarily to make a return, no question can arise under section 34 of assessment escaping, and therefore there is no necessity to serve any notice under section 34.
" This represents the law applicable to the facts as they are to be found in this case.
In the assessment year no return of income was filed, nor was any notice served under section 22(2).
There was, however, the general notice under section 22(1).
A return in answer to that notice could be filed under section 22(3) before assessment, and for this there is no limit of time.
It was filed on January 5, 1950.
There was nothing to prevent the Income tax Officer from taking up the return and proceeding to assess the income of the assessee.
It was open to him, if there was sufficient justification for it, to hold that the amount noted in the footnote was really the assessee 's income, in which case an assessable income would have been found and the tax could be charged thereon.
If the Income tax Officer had acted on that return and assessed the assessee (1) (2) 125 before March 31, 1950, the assessment would have been valid.
He chose to ignore the return, and served on the assessee a notice under section 34(1).
This notice was improper, because with the return already filed there was neither an omission nor a failure on the part of the assessee, nor was there any question of assessment 'escaping '.
The notice under section 34(1) was, therefore, invalid and the consequent assessment equally so.
We accordingly agree with the judgment under appeal.
Before leaving this case, we may refer to two other arguments, which were raised.
Mr. Rajagopala Sastri pointed out that an assessee might file the 'voluntary ' return on the last day showing income less than the taxable limit, and the Department would, in that case, be driven to complete the assessment proceedings within a few hours or lose the right to send a notice under section 34(1).
An argument ab inconvenienti is not a decisive argument.
The Income tax Officer could have avoided the result by issuing a notice under section 23(2) and not remaining inactive until the period was about to expire.
Further, all laws of limitation lead to some inconvenience and hard cases.
The remedy is for the legislature to amend the law suitably.
The Courts can administer the laws as they find them, and they are seldom required to be astute to defeat the law of limitation.
This argument is thus no answer to the clear meaning and implications of the Act.
The other argument was that the return was not a true one, and fell within the mischief of cl.
(c) of sub s.(1) of section 28, and that, therefore, the period during which action could be taken was the extended one of 8 years.
The short answer to that is that this was not a part of the Department 's case at any prior stage, and cannot be allowed to be raised now.
In our opinion, the answers given by the High Court of Bombay were correct in all the circumstances of this case.
The appeal thus fails, and is dismissed with costs.
Appeal dismissed.
| A public notice under section 22(1) of the Income tax Act, 1922 was published on May 1, 1045, requiring every person whose total income exceeded the maximum amount which was not chargeable to income tax to file returns for the assessment year 1945 46.
On January 5, 1950, the assessee submitted a voluntary return showing an income of Rs. 1,935 for the assessment year 1945 46 and added a footnote to the return that his wife had sold her old ornaments and deposited a sum of Rs. 59,026 with the Assar Syndicate in which he was a partner.
The Income tax Officer, who had discovered these credits while examining the accounts of the Assar Syndicate, ignored the voluntary return, and, on February 27, 1950, issued a notice under section 34(1) of the Act calling upon the assessee to submit his return.
On March 14, 1950, the assessee submitted an identical return.
The Income tax Officer made the assessment on February 26, 1951, and included the sum of Rs. 59,026 in the total income of the assessee.
The assessee contended that the assessment was invalid as it was completed more than four years after the end of the assessment year in violation Of section 34(1)(b).
The appellant contended that the voluntary return was no return as it did not disclose any taxable income and the assessment was valid under the proviso to section 34(3) Of the Act, having been made within one year of the notice issued under section 34(1).
Held, that the assessment was invalid.
The voluntary return filed by the assessee, even though it did riot disclose any taxable income, was a good return and could not be ignored.
As such no question arose under section 34(1) of income escaping assessment and the Income tax Officer was not justified in issuing the notice under section 34(1).
The proviso to section 34(3) was applicable only when there was a Proper notice issued under section 34(1) and the appellant could not take advantage of the time allowed by this proviso.
The assessment was clearly made beyond four years of the end of the assessment year 1945 46 and was time barred.
Harakchand Makanji & Co. vs Commissioner of Income tax, All India Groundnut Syndicate Ltd. vs 115 Commissioner of Income tax, (1953) 25 I.T.R. go and P. section Rama Iyer vs Commissioner of Income tax, (1957) 33 I.T.R. 458, approved.
Commissioner of Agricultural Income tax vs Sultan Ali Gharami ; B. K. Das & Co. vs Commissioner of Income tax, and Commissioner of Income tax vs Govindlal Dutta (1957) 33 ; , disapproved.
|
Civil Appeal No. 2736 of 1972.
From the Award dated the 31st December, 1971 of the Central Govt Labour Court Bombay in application No. L.C.B. 326 of 1969.
Harbans Lal, N. section Das Bahl and R. N. Poddar for the appellants.
V. M. Tarkunde, K. Shivraj Choudhary and K. R. Choudhary for the respondents.
The Judgment of the Court was delivered by 294 TULZAPURKAR, J.
The only point raised by counsel for the Appellants in this appeal is whether the respondents who are employees working in the Factory of India Security Press, Nasik are entitled to over time wages at twice the normal rate of their wages under section 59 of the read with section 70 of the Bombay Shops and Establishments Act, 1948 and the question depends upon the true construction of section 70 of the latter Act.
Since in our view the question of proper construction of the said section 70 is concluded by a decision of this Court in Shri B.P. Hira, Works Manager, Central Railway, Parel, Bombay, etc.
vs Shri C.M. Pradhan etc.(1) it is unnecessary to indulge in any elaborate statement of facts or discussion of all the rival contentions that were urged before the Central Government Labour Court Bombay, whose decision rendered on December 31, 1971 is challenged in this appeal.
Briefly stated the admitted facts are: The India Security Press, Nasik is a very big establishment of the Central Government headed by the General Manager, who is also known as Master, India Security Press.
Apart from administrative offices it has a factory.
The Press has four wings, namely, (a) the stamp press, (b) currency note press, (c) new currency note press and (d) central stamp stores.
There are various categories of workers who have been classified into two groups such as (1) employees working in the administrative offices and (2) those working in the factory.
The 78 respondents, belonging to all the four wings, have been employees working in the factory (of these, R 1 to R 3 are Chief Inspectors (Control); R 4 to R 36 are Inspectors (Control); R 37 & R 38 are Senior Supervisors; R 39 to R 52 are Supervisors; R 53 to R 77 are Junior Supervisors and R 78 is a Store Keeper).
These 78 Respondents filed an application against the Appellants before the Central Government Labour Court, Bombay under section 33C (2) of the claiming over time wages under section 59 of the .
read with section 70 of the Bombay Shops and Establishments Act.
Their case was that though the normal working period for all those who were working under the roof of the factory was 44 hrs.
per week, they were, along with the regular factory workers, required to work for more than 44 hrs.
a week but the management had been causing loss to them by paying them, unlike the factory workers, over time wages at the basic rates even for work done beyond 44 hrs.
whereas they were entitled to over time wages 295 at double the rate of their normal wages (inclusive of dearness allowance, etc.), and as such they were entitled to get the amount of difference ascertained, computed and paid to them; and they claimed this relief in respect of overtime work done during the past 12 years i.e. from 1 1 1956 to 30 8 1968.
Along with the application they gave a detailed schedule and the particulars of their claim totalling to an amount of Rs. 7,00,000 and odd.
This claim was resisted by the Appellants on several grounds but we need mention only those grounds which have a bearing on the only point that was raised and argued before us by counsel for the appellants.
Inter alia it was contended that none of the Respondents was a 'worker ' under section 2 (i) of the and as such they were not entitled to the benefit of section 59 of that Act read with section 70 of the Bombay Shops and Establishments Act, 1948.
It was further contended that even assuming that the respondents were entitled to claim the benefit of the section 59 read with the section 70 notwithstanding that none of them was a worker, by reason of Rule 100 made by the State Government in exercise of its powers under section 64 of the , section 59 became inapplicable to the Respondents and therefore could not be availed of by them inasmuch as quite a substantial number of them fell within the category of person who had been "defined or declared to be holding positions of supervision or management or being employed in a confidential position in the factory." In other words.
quite a large number of the Respondents fell within the exempted category under section 64 read with Rule 100 framed by the State Government and, therefore, the benefit of section 59 was not available to them.
It was further urged that none of the Respondents was an industrial employee, i.e. 'a workman ' within the meaning of section 2 (s) of the and as such their application under section 33C (2) of that Act was not maintainable.
The Central Government Labour Court, Bombay negatived the first two contentions in view of the decision of this Court in the case of B.P. Hira vs C.M. Pradhan (supra) and as regards the third contention on an appreciation of the oral and documentary evidence led by the parties, it came to the conclusion that all respondents holding the posts of Chief Inspectors (Control) (R 1 to R 3), Inspectors (Control) (R 4 to R 36), Junior Supervisors (R 53 to R 57) and Store Keeper (R 78) having regard to the nature of duties and functions performed by them were industrial employees i e. workmen under the and as such were entitled to the relief claimed by them but as 296 regards the respondents who were holding the posts of Senior Supervisors (R 37 and R 38) and Supervisors (R 39 to R 5) not being workmen under the were not entitled to the relief claimed, of course, they were denied the relief only for the period during which they were holding those posts.
This decision is challenged in the appeal.
As stated earlier, the validity or otherwise of the first two contentions that were urged before the Labour Court and reiterated before us by Counsel for the appellants depends upon the proper construction of s.70 of the Bombay Shops and Establishments Act, 1948 and in order to appreciate both the contentions it will be necessary to set out section 59, section 64 together with Rule 100 of the and section 70 of the Bombay Shops and Establishments Act, 1918 Sections 59 and 64 occur in Chapter VI of the and the material portions thereof run thus: "59.
Extra Wages for overtime. (1) Where a worker works in a factory for more than nine hours in any day or for more than forty eight hours in any week, he shall, in respect of overtime work be entitled to wages at the rate of twice his ordinary rate of wages.
" "64.
Power to make exempting rules, (1) The State Government may make rules defining the persons who hold positions of supervisions or management or are employed in a confidential position in a factory, or empowering the Chief Inspector to declare any person, other than a person defined by such rules, as a person holding position of supervision or management or employed in a confidential position in a factory if, in the opinion of the Chief Inspector, such person holds such position or is so employed and the provisions of this Chapter, other than provisions of clause (b) of sub section (1) of section 66 and of the proviso to that sub section, shall not apply to any person so defined or declared: Provided that any person so defined or declared shall, where the ordinary rate of wages of such person does not exceed rupees seven hundred and fifty per month, be entitled to extra wages in respect of overtime work under section 59.
" Rule 100 framed under section 64 runs thus: 297 "Persons defined to hold positions of supervision or management or confidential position.
The following persons shall be deemed to hold position of supervision or management or to be employed in a confidential position in a factory (a) All persons specified in the Schedule annexed hereto.
(b) Any other person who, in the opinion of the Chief Inspector, holds a position of supervision or management or is employed in a confidential position.
Schedule List of persons defined to hold positions of supervision or management in factories: Manager Assistant Manager . . .
Departmental Heads and Assistants . .
Head Store Keepers and Assistants Technical Experts.
" Section 70 of the Bombay Shops and Establishments Act, 1948 runs thus: "70.
Persons employed in factory to be governed by and not by this Act.
Nothing in this Act shall be deemed to apply to a factory and the provisions of the shall, notwithstanding anything contained in that Act, apply to all persons employed in and in connection with a factory: Provided that, where any shop or commercial establish 298 ment situate within the precincts of a factory is not connected with the manufacturing process of the factory the provisions of this Act shall apply to it: Provided further that, the State Government may, by notification in the official Gazette, apply all or any of the provisions of the to any shop or commercial establishment situate within the precincts of a factory and on the application of that Act to such shop or commercial establishment, the provisions of this Act shall cease to apply to it.
" Counsel for the appellants urged that the respondents, though employed in the factory of the Press, were not 'workers ' within the meaning of section 2 (1) of the and therefore were not entitled to the benefit of section 59 of that Act read with section 70 of the Bombay Shops and Establishments Act, 1948.
On the plain language of sec.
70 of the Bombay Shops and Establishments Act this contention has to fail.
We are concerned not with either of the provisos but with the main provision of section 70 which consists of two parts; the first part states that if there be a factory the Shops and Establishments Act will not apply and the second part states that to such a factory "the provisions of the shall, notwithstanding anything contained in that Act, apply to all persons employed in or in connection with a factory.
" Clearly, the portion underlined (the non obstante clause and the phrase 'all persons employed ') has the effect of enlarging the scope of by making it applicable to all persons employed in such factory irrespective of whether employed as workers or otherwise.
Therefore although the respondents have not been 'workers ' within the meaning of sec.
2 (1) they will get the benefit of sec.
This identical question arose for consideration before this Court in the case of B.P. Hira vs C.M. Pradhan (supra).
In that case Shri C.M. Pradhan and other respondents were employed as time keepers in the time office of the Central Railway Workshop and Factory, Parel, Bombay and they had claimed over time wages under s.59 of the first on the basis that they were 'workers ' within the meaning of s 2(1) of that Act and alternatively on the basis that assuming they were not 'workers ' within the meaning of section 2(1) of that Act, they were entitled to claim overtime wages under s.59 of the read with s.70 of the Bombay Shops and Establishments Act, 1948.
The validity of the 299 claim on both the grounds was disputed by the appellant (Works Manager).
The Authority under the Payment of Wages Act found that only four of the respondents, who were required to do the work of progress time keeper, could claim the status of 'workers ' within the meaning of section 2(1) of the and the rest were merely employees of the workshop, but accepted the alternative case 'made by the respondents and held that each of the respondents was entitled to get the over time wages under sec.
59 read with sec.
70 and this Court upheld the view of the Authority and confirmed its decision.
The Court 's view on the proper construction of section 70 of the Bombay Shops and Establishments Act 1948 has been succinctly summarized in the second head note, which appears at page 137 of the report, which runs thus: "On a proper construction of section 70 of the Act it is clear that the first part of the section excludes a factory and its employees from the operation of the Act; but the second part makes the relevant provisions of the applicable to them.
The non obstante clause in the section shows that the employees in a factory, although they might not be workers within the meaning of section 2(1) of the , are entitled to claim overtime wages as provided for by that Act." Apart from the fact that the decision is binding on us, we are in respectful agreement with the construction placed by it on section 70 of the Act.
The first contention has, therefore, to be rejected.
Counsel for the appellants next urged that the effect of section 70 as indicated by the aforesaid decision is that it makes the provisions of the applicable to all persons (irrespective of their capacity) employed in a factory but the provisions of the Act include section 64 (occurring in the same Chapter VI) which gives power to the State Government to make exemptions and it is under section 64 that Rule 100 has been framed by the State Govt.
under which the employees specified in the Schedule to the Rule have been excluded from the purview of section 59 of that Act and since in the instant case a substantial number of the respondents fall within the exempted category (Departmental Heads and Assistants) and Head Storekeepers and Assistant they would not be able to claim overtime wages under section 59 of that Act read with section 70 of the Bombay Shops and Establishments Act.
In other words, counsel contended that section 59 must, be read with section 64 of the and because of Rule 100 framed under section 64, section 59 becomes inapplicable to the respondents 300 falling within the exempted categories On the other hand, counsel for the respondents urged that the non obstante clause has the effect of keeping out of the way the exemption provisions, namely, section 64 read with Rule 100 and according to him such effect must follow from the ratio of this Court 's decision in case of B.P. Hira vs C.M. Pradhan (supra) and the Labour Court had rightly taken the view that because of the non obstante clause the respondents ' right to claim benefit of overtime wages under s 59 read with section 70 was not affected by the framing of rule 100 by the State Government in exercise of the power conferred on it under section 64.
Section 70, so far as is relevant, says "the provisions of the shall, notwithstanding anything contained in that Act, apply to all persons employed in and in connection with a factory".
It is well known that a non obstnte clause is a legislative device which is usually employed to give over riding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions.
Thus the non obstante clause in section 70, namely, "notwithstanding anything in that Act" must mean notwithstanding anything to the contrary contained in that Act and as such it must refer to the exempting provisions which would be contrary to the general applicability of the Act.
In other words, as all the relevant provisions of the Act are made applicable to a factory notwithstanding anything to the contrary contained in it, it must have the effect of excluding the operation of the exemption provisions.
Just as because of the non obstante clause the Act is applicable even to employees in the factory who might not be 'workers ' under sec.
2(1), the same non obstante clause will keep away the applicability of exemption provisions qua all those working in the factory.
The Labour Court, in our view, was, therefore, right in taking the view that because of the non obstante clause section 64 read with Rule 100 itself would not apply to the respondents and they would be entitled to claim overtime wages under section 59 of that Act read with section 70 of the Bombay Shops and Establishments Act, 1948.
Counsel for the appellants pointed out that if such construction was placed on section 70 it will lead to an anomalous situation that even employees of a factory occupying positions of a Manager or a General Manager would become entitled to overtime wages which could not have been the intention of the State Legislature, but that, in our view, is a matter of the State Legislature and not for the Court but it must be pointed out that since 301 the rendering of the aforesaid decision by this Court in 1960 the State Legislature has not intervened, which perhaps suggests that the State Legislature is not keen to limit the operation of the non obstante clause in any manner.
The second contention must also fail.
Counsel for the appellants made a feeble attempt to contend that not merely such of the respondents who were holding the posts of Senior Supervisors and Supervisors were not industrial employees but all the other respondents were also not industrial employees i.e. were not workmen under the .
In the first place, the contention depends upon the appreciation of evidence led by the parties on the nature of duties and functions performed by the concerned respondents and it was on an appreciation the entire material that the Labour Court recorded a finding that having regard to the nature of their duties and functions all respondents, other than those who were holding the post of Senior Supervisors and Supervisors, were industrial employees, i.e. workmen under the and it is not possible for this Court to interfere with such a finding of fact recorded by the Labour Court.
Even otherwise after considering some of the important material on record through which we were taken by counsel for the appellants, we are satisfied that the Labour Court 's finding is correct.
In the result the appeal fails and is dismissed but there will be no order as to costs.
H.S.K. Appeal dismissed.
| The respondents filed a writ petition in the High Court of Calcutta against an order made under Clause 8 B of the Import Control order 1955, in respect of a consignment of beef tallow which arrived at the Calcutta Port.
A Single Judge issued a rule and granted an interim order restraining the Union of India and the Chief Controller of Imports and Exports from filing any criminal complaint against the respondent firm or its Directors and also a direction to permit the respondents to re export the consignment of tallow.
An application was made by the Union of India to vacate the interim order.
In the meanwhile the respondents sent letters and telegrams to the department intimating that the interim order of the High Court had not been obeyed, and threatening action for contempt of Court.
An application to commit the Chief Controller of Imports and Exports, and others for contempt of court was filed by the company.
Over ruling the request made on behalf of the Department to vacate the interim order, the court issued a rule in the application for contempt and directed the Department officials to appear in person.
Being aggrieved by the order, the Department filed a Special Leave Petition against the interim order and the rule for contempt.
Allowing the appeal, vacating the interim order and quashing the rule for contempt of Court; ^ HELD: 1.
Writ petitions are often deliberately filed in distant High Courts, as part of a manoeuvre in a legal battle, so as to render it difficult for 343 the officials at Delhi to move applications to vacate stay where it becomes necessary to file such applications.
An inevitable result of the filing of writ petitions elsewhere than at the place where the concerned offices and the relevant records are located is to delay prompt return and contest.
[345B C, A] In the instant case the writ petition was filed in the Calcutta High Court when the office of the company is in the State of Punjab and all the principal respondents are in Delhi.
A statutory order such as the one under Clause 8 B of the Import Control Order purports to be made in the public interest and unless there are even stronger grounds of public interest an ex parte interim order will not be justified.
The only appropriate order to make in such cases is to issue notice to the respondents and make it returnable within a short period.
This should particularly be so where the offices of the principal respondents and relevant records lie outside the ordinary jurisdiction of the Court.
To grant interim relief straight away and leave it to the respondents to have the interim order vacated may jeopardise the public interest.
[346G 347A] 3.
If an interim order is once made by a court, parties employ every device and tactic to ward off the final hearing of the application.
It is therefore, necessary for the courts to be circumspect in the matter of granting interim relief, more particularly so where the interim relief is directed against.
orders or actions of public officials acting in discharge of their public duty and in exercise of statutory powers.
[347B] In the instant case, no interim relief should have been granted by the High Court.
The interim order is of a drastic character with a great potential for mischief and has the effect of practically allowing the writ petition at the stage of admission without hearing the opposite parties.
[347C, 346D] 4.
The application to commit the authorities for contempt of court appears to be a device to exact licences from them.
[349B] In the instant case, the stay of the operation of the 'abeyance ' order merely meant that the writ petitioners were entitled to have their applications disposed of by the concerned authorities.
The High Court not having set any limit of time for the disposal of the applications, it was not for the writ petitioners to impose a time limit and demand that their applications should be disposed of forthwith.
If the writ petitioners were aggrieved by the failure of the authorities to dispose of their applications expeditiously, it was open to them to seek a further direction from the court fixing a limit of time within which the applications were to be disposed of.
[348G 349A] 344
|
ivil Appeal Nos.
1201 03 Of 1972 From the Judgment and Order dt.
30.4.1971 of the High Court of Delhi in Civil Writ No. 12)7/67, 455/68 & 16/70.
WITH Special Leave Petitions (Civil) NOS.
2820 23 of 1977.
From the Judgment and order dt. 18.1.1977 of the High Court of Delhi in Letters Patent Appeals Nos. 3 to 6 of 1977.
Anil Devan, A.N. Haksar and D.N. Misra for the Appellant in C.A. Nos. 1201 03172.
B.P. Maheshwari for the Petitioners in SLPs Nos.
2820 23 of 1977.
Abdul Khader, T.V.N. Chari and R.N. Poddar for tbe Respondents in C.A. Nos.
1201 03/72.
The Order of the Court was delivered by TULZAPURKAR, J. Two contentions under a Scheme called "Tax Credit Certificate (Excise Duty on Excess Clearance) Scheme, 577 1965" framed by the Central Government under section 280 ZD of the Income Tax Act, 1961, which were negatived by the High Court, have again been pressed by the appellant company before us in these appeals but after hearing counsel for the appellant company at some length and after going through the relevant provision of the said Scheme, relevant section of the Income Tax Act, 1961 and section 80 of the Finance Act 1965 we are satisfied that the High Court was right in the view which it took on both the contentions and the appeals deserve to be dismissed.
With a view to encourage investment in new equity shares and to stimulate industrial output the Government of India introduced certain special provisions in Chapter XXII B of the Income Tax Act, 1961 for the grant of tax credit certificate and section 230ZD is one of such Provisions which provides for the grant of tax credit certificate by way of incentive for increased production of goods and the "Tax Credit Certificate (Excise Duty on Excess Clearance) Scheme 1965" was framed by the Central Government under this section and it was made applicable to the cement industry in 1965.
Under the Scheme the amount of tax credit to which a manufacturer of cement is entitled is calculated at a rate not exceeding 25% of the amount of the duty of excise payable by him on the quantity of excess production during the financial year as compared to the production in the base year and the financial year 1964 65 is defined as the base year in relation to an existing undertaking.
For the year 1 965 66 being the concerned year in the instant case the excise duty for cement levied under the (for short the Excise Act) was Rs. 23.60 per ton but under section 80 of the Finance Act 1965 a special duty of excise equal to 25% of the total amount of excise chargeable under the Excise Act on various articles including cement was levied.
On the excess clearance of cement made during the concerned year over and above the quantity cleared in the base year the appellant Company applied for the grant of tax credit certificate to the concerned authority under the Scheme for an amount calculated at the rate of 25, ' of the entire amount of duty of excise paid by it, that is to say, 25% of the basic excise duty levied under the Excise Act at Rs. 23.60 per ton plus the amount of special excise duty paid by it under section 80 of the Finance Act.
The concerned authority granted tax credit certificate only in respect of the Central Excise Duty levied under the Excise Act, taking the view that the appellant was not entitled to have any tax credit in respect of any other excise duty levied under a different enactment, namely, section 80 of the 578 Finance Act.
The appellant challenged before the High Court the aforesaid view of the authorities but the High Court negatived the challenge principally on the ground that tax credit would not be available to the appellant company in respect of the special excise duty levied under section 80 of the Finance Act having regard to the special meaning assigned to the expression 'duty of excise ' by clause (b) of sub s(6) of section 280ZD.
It is clear that under section 280ZD (1) a manufacturer of the concerned goods is entitled to be granted a tax credit certificate for an amount calculated at the rate not exceeding 25% of "the amount of duty of excise payable by him" on that quantum of the goods cleared by him during the relevant financial year which exceeds the quantum of goods cleared by him during the base year and clause (b) of sub section
(6) of section 280ZD defines the expression 'duty of excise ' for the purpose of the aforesaid provision in a special manner and clause (b) says 'duty of excise ' means the duty of excise leviable under the Central excises and Salt Act, 1944".
Obviously the special excise duty which was levied under section 80 of the Finance Act 1965 can not be regarded as having been levied under the Excise Act.
Counsel for the appellant company, however, urged before us that having regard to the provisions of sub clause (3) and (4) of section 80 of the Finance Act the special excise duty leviable thereunder should be regarded as duty of excise leviable under the Excise Act.
lt is not possible to accept this contention.
It is true that the expression 'leviable ' is an expression of wide import and includes stages of qualification and recovery of the duty but in the context in which that expression has been used in clause (b) of sub section
(6) of section 280 ZD it is clear that it has been used in the sense of chargeability of the duty.
In other words the duty of excise in respect whereof tax credit is available would be in respect of such duty of excise as chargeable under the Excise Act and clearly the special excise duty in respect whereof additional tax credit is sought by the appellant company is not chargeable under the Excise Act but chargeable under the Finance Act.
Sub clauses (3) & (4) of section 80 of the Finance Act on which reliance has been placed by counsel for the appellant company in terms refer to the procedural aspect such as the qualification and collection of duty and simply because the qualification and collection of the special duty under the Finance Act is to be done in accordance with the provisions of the Excise Act such duty does not become leviable, that is to say, chargeable under the Excise Act.
It is, 579 therefore, not possible to accept the contention of the counsel that such special duty of excise leviable under the Finance Act should also be included or taken into account for the propose of granting tax credit certificate under the Scheme read with section 280ZD of the Income Tax Act 1961.
Reference was made by counsel for the appellant to a decision of the Madras High Court in Seshasayee Paper & Boards Ltd. vs Deputy Director of Inspection Customs and Central Excise, New Delhi and Anr.(l) where the view taken by that Court seems to support his contention but having regard to the special definition of the expression 'duty of excise ' given in section 280ZD (6) (b) and the construction which we have put on the word 'leviable, we do not approve the decision of the Madras High Court.
The other contention urged by counsel for the appellant relates to the question of limitation but on this aspect the admitted facts are that the first application for tax credit certificate was made by the appellant on June 24, 1966 and the same had been disposed of in December 1966.
Thereafter a supplementary application was made on August 26, 1967 which was obviously barred by limitation as per para 5.2 of the Scheme.
Further, even the power to condone delay conferred on the Central Authority under para 5.3 would not cover the appellant 's case for under that provision a delay for a period not exceeding 60 days could alone be condoned.
Counsel, however, urged that the delay in filing the supplementary application ought to have been condoned having regard to the trade notice that had been issued on June 29, 1967 inasmuch as the supplementary application could be said to have been made because of the clarification issued under that trade notice.
It is, however, clear that by the trade notice no amendment was effected but merely a clarification of the existing position in law was given and, therefore, the trade notice could not furnish starting point of limitation for the supplementary application.
In our view both the contentions were rightly rejected by the High Court and the appeals are dismissed but without cost.
In view of what is stated above the special leave petitions are also dismissed.
N.V.K. Appeals & Petitions dismissed.
| G.O.Ms.
No. 559 dated May 4.
1961 issued by the respondent State provides that the principle of reservation of appointments should be extended to all cadres of posts including posts involving promotions in all departments including the Departments of Secretariat to which it did not apply till then.
The appellant filed a Representation Petition before the Tribunal as late as 1977 contending that if appropriate action would have been taken at the time it was due as per G.O.Ms.
No. 559, he would have been eligible for promotion as Deputy Registrar of Cooperative Societies in 1965 and by denying him the said promotion in violation of the aforesaid Govt.
Order; his future promotion to the post of Joint Registrar has been adversely affected.
The Tribunal dismissed the petition holding that tho special rules for the Cooperative service did not contain any specific provision for the application of rule of reservation and, therefore.
the appellant was not entitled to claim the benefit of the rule of reservation for promotion to the rank of Deputy Registrar between 1965 and 1972 as claimed by him.
Hence this appeal by special leave.
Condoning the delay in filing the special leave petition and disposing of the appeal, the Court ^ HELD: (1) On a proper interpretation of the relevant Government Order, the appellant was entitled to promotion as Deputy Registrar in the year 1965 which was postponed upto October 14, 1983 when he was promoted as Deputy Register.
Though the appellant made number of representation but he moved for an effective relief as late as 1977.
Moreover, This is not the lone case and if the Court grants him the Relief as claimed by him.
though he has 570 sought relief after a very long unexplained delay, it would create chaos in the service and many promotions and reversions will have to be effected.
The Court is, therefore not inclined to disturb the existing promotions and postings by holding that the appellant was entitled to promotion way back in 1965.
In this backgaround, be is entitled to some monetary compensation.
[572G H; 573A] (2) If the appellant is given the benefit of deemed promotion from 1965 the State cannot deny identical benefit to persons similarly situated and similarly circumstanced.
And they never questioned the alleged impropriety of not giving them the benefit of the Government Order in respect of reservations in promotion posts.
All these are relevant considerations and therefore the amount of backwages is fixed at Rs. 40,000 payable in one lump sum.
While computing the amount, the Court has kept in view the period during which , the appellant would be entitled to relief.
Therefore, The amount of Rs. 40,000 awarded as compensation in the form of backwages is to be spread over for the period 1965 to 1982.
Since the amount is payable in one lump sum, presumably the Government may resort to section 192 of the Income Tax Act, but let it be made distinctly clear that the appellant is entitled to the benefit of sec.
89 of the Income Tax Act, 1961 and Rule 21A of the Income Tax Rules and is entitled to relief of spread over.
The pay of the appellant shall also be fixed at Rs. 1600 i.e. the maximum of the scale of Deputy Registrar effective from January 1, 1984.
[573E H; 574B C]
|
Civil Appeal No. 112 of 1975.
Appeal by Special Leave from the Judgment and Order dated 3 10 1974 of the Andhra Pradesh High Court in Criminal Appeal Nos. 57 and 325/72.
P. Rama Reddy, G. section Rao and G. N. Rao for the Appellant.
A. N. Mulla and G. Narisimhalu for the Respondent.
The Judgment of the Court was delivered by GUPTA, J.
This appeal preferred by the State of Andhra Pradesh is directed against a judgment of the Andhra Pradesh High Court by which a learned Judge of that Court exercising jurisdiction under section 429 of the Code of Criminal Procedure, 1898 set aside the order of conviction and the sentences passed on the respondents before us by the Sessions Judge, Chittoor Division.
The charge against the respondents was that at about ten on the night of September 5, 1971 Venkataramaiah Chetty and Chakala Giddappa (P.W. 1) were returning to their village Sanganapalle from Kadepalle where they had gone and when they were about a mile from Sanganapalle, respondent No. 1 armed with a bill hook and respondent No. 2 with a stout stick attacked them and beat Venkataramaiah Chetty severely causing multiple injuries as a result of which he died.
The Sessions Judge accepted the evidence of P.W. 1 and the dying declaration said to have been made by Venkataramaiah Chetty in the presence of several witnesses including P.W. 1 and convicted the respondents under section 302 read with section 34 of the Indian Penal Code and sentenced each of them to undergo imprisonment for life.
On appeal preferred by the accused a Division Bench of the High Court rejected the dying declaration but accepted the evidence of P.W. 1 to find that the accused caused the injuries to which Venkataramaiah Chetty succumbed; the learned Judges composing the Division Bench however differed on the nature of the offence that was committed by the accused in causing these injuries.
Madhava Reddy J. held that having regard to the nature of the injuries it was not possible to find that the accused intended to cause death and that the offence committed by the accused was culpable homicide not amounting to murder punishable under section 582 304 Part I of the Indian Penal Code.
Sriramulu J. was of the opinion that in causing the injuries the accused had the common intention to kill Venkataramaiah Chetty.
He also observed that even assuming the offence did not fall under clause "Firstly" of section 302 of the Indian Penal Code, it undoubtedly fell under clause "Thirdly" of that section and on this view reached the conclusion that the Sessions Judge was justified in convicting the accused persons under section 302 read with section 34 of the Indian Penal Code.
The case was then referred to a third Judge, Ramchandra Raju J., under section 429 of the Code of Criminal Procedure, 1898.
Raju J. found on a consideration of the evidence that "there does not appear to be any motive, much less sufficient motive, for the accused to commit the offence".
The immediate motive for the offence according to the prosecution was an incident said to have taken place on September 1, 1971, four days prior to the date of occurrence, when P.W. 5, a son of the deceased, was beaten by the accused when cattle of the deceased strayed into the field of the first respondent.
According to Raju J. what happened on September 1, was a trivial incident, P.W. 5 did not sustain any injury, he did not report the matter to anyone and even when the deceased came and intervened there was no quarrel, the accused did not try to assault the deceased nor the deceased tried to beat the accused.
Pointing out certain infirmities in the evidence of the sole eye witness P.W. 1, Raju J. found that his evidence was "doubtful and suspicious".
P.W. 7 who sought to corroborate a part of the evidence of P.W. 1, according to Raju J. did not "inspire much confidence".
Raju J. did not think it "safe to find the accused guilty by placing absolute reliance on the evidence of P.W. 1 and accordingly he acquitted both the accused.
Before us Mr. P. Rama Reddy for the State of Andhra Pradesh contends that it was not open to the third Judge to upset the concurrent finding of both the learned Judges composing the Division Bench that the accused were guilty of some offence; it is argued that as the difference between the two Judges of the Division Bench was confined to the nature of the offence only, the third Judge to whom the case was referred under section 429 of the Code of Criminal Procedure had no power to acquit the accused.
Section 429 of the Code of Criminal Procedure, 1898 reads: "When the Judges composing the Court of appeal are equally divided in opinion, the case, with their opinions thereon, shall be laid before another Judge of the same Court, and such Judge, after such hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion." 583 In support of his contention Mr. Rama Reddy relies on the judgment of this Court in Bhagat Ram vs State of Rajasthan.(1) This was a decision by a Bench of two Judges.
In that case Bhagat Ram, an Inspector of Police, was charged with having committed offences under sections 120B, 161, 218, 347 and 389 of the Indian Penal Code and also under section 5(1)(a) read with section 5(2) of the Prevention of Corruption Act.
Another accused, Ram Swaroop, who was tried along with Bhagat Ram was charged with having committed offences under sections 120B and 165A of the Indian Penal Code.
The trial court acquitted both Bhagat Ram and Ram Swaroop of all the charges framed against them.
The appeal preferred by the State of Rajasthan against the acquittal was heard by a Division Bench composed of Tyagi and Lodha JJ.
The Division Bench confirmed the acquittal of Ram Swaroop.
The acquittal of Bhagat Ram in respect of the charges under sections 347, 218, 389 and 120B was also affirmed.
The Judges however differed on the point whether the acquittal of Bhagat Ram regarding the charges under section 161 of the Indian Penal Code and section 5(1)(a) of the Prevention of Corruption Act should be maintained; according to Tyagi J. these charges had not been proved, in the opinion of Lodha J. they had been.
In view of this difference, the learned Judges passed the following order: "The result is that the appeal of the State against the order of acquittal of respondent Ram Swaroop is dismissed.
The appeal of the State so far as it relates to the acquittal of respondent Bhagat Ram under sections 347, 218, 389 and 120B Indian Penal Code is also dismissed.
In view of the difference of opinion about the acquittal of Bhagat Ram under section 161 Indian Penal Code and Section 5(1)(a) of the Prevention of Corruption Act, the matter may be laid before Hon 'ble the Chief Justice for referring it to the third Judge.
" Jagat Narayan J., the third Judge to whom the case was referred, held that Bhagat Ram was guilty of offences under Section 161 and also sections 120B, 218 and 347 of the Indian Penal Code.
This Court held in Bhagat Ram vs State of Rajasthan (supra) that it was not permissible for the third Judge to reopen the matter and convict Bhagat Ram of offences under sections 120B, 218 and 347 of the Indian Penal Code because: "The present was not a case wherein the entire matter relating to the acquittal or conviction of Bhagat Ram had been left open because acquittal or conviction of Bhagat Ram had 584 been left open because of a difference of opinion between the two Judges.
Had that been the position, the whole case relating to Bhagat Ram could legitimately be considered by Jagat Narayan, J. and he could have formed his own view of the matter regarding the correctness of the order of acquittal made by the trial Judge in respect of Bhagat Ram.
On the contrary, as mentioned earlier, an express order had been made by the Division Bench upholding the acquittal of Bhagat Ram for offences under sections 120B, 218, 347 and 389 IPC and the State appeal in that respect had been dismissed.
" Clearly the decision in Bhagat Ram 's case turns on the construction put on the order of the Division Bench referring "the matter" to the third Judge that he was to decide only the question on which the two Judges had differed Bhagat Ram 's acquittal in respect of the offence under section 161 Indian Penal Code and section 5(1)(a) of the Prevention of Corruption Act was justified.
The scope of section 429 was not considered in Bhagat Ram 's case, no question was raised whether the Judges of the Division Bench could restrict the powers of the third Judge under section 429, nor the notice of the Court appears to have been drawn to three earlier decisions of this Court on the point.
In Babu and others vs State of Uttar Pradesh(1) a Bench of five Judges held: "The section [section 429] contemplates that it is for third Judge to decide on what points he shall hear arguments, if any, and that postulates that he is completely free in resolving the difference as he thinks fit" The next case is Hethubha vs The State of Gujarat(2) which was decided by a Bench of two Judges.
In that case the Sessions Judge acquitted three accused of the charge under section 302 read with section 34 Indian Penal Code but convicted them under section 304 Part II read with section 34.
Two of them were also convicted under section 323 and the third was convicted under section 323 read with section 34.
On appeal to High Court one of the two Judges composing the Division Bench held that it was the first appellant alone who inflicted the fatal injury on the victim and found him guilty under section 302, while the second and third appellants were found guilty under section 324 read with section 34.
The other learned Judge was of the view that all the accused must be acquitted as, according to him, the evidence was not satisfactory.
The case was then placed before a third Judge under section 429 of the Code of 585 Criminal Procedure, 1898 who convicted the first appellant under section 302 of the Indian Penal Code, and the second and third appellants under section 302 read with section 34.
The conviction of the first and the second appellants under section 323 and of the third appellant under section 323 read with section 34 was upheld.
In appeal to this Court it was contended that the third Judge under section 429 of the Code of Criminal Procedure, 1898 could only deal with the differences between the two Judges and not with the whole case.
Repelling this contention it was held: "This Court in Babu and Ors.
vs State of Uttar Pradesh(1) held that it was for the third learned Judge to decide on what points the arguments would be heard and therefore he was free to resolve the differences as he thought fit.
Mehta.
J. here dealt with the whole case.
Section 429 of the Criminal Procedure Code states "that when the Judges comprising the Court of Appeal are equally divided in opinion, the case with their opinion thereon, shall be laid before another Judge of the same Court and such Judge, after such hearing, if any, as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion".
Two things are noticeable; first, that the case shall be laid before another Judge, and, secondly, the judgment and order will follow the opinion of the third learned Judge.
It is, therefore, manifest that the third learned Judge can or will deal with the whole case." In Union of India and another vs B. N. Ananti Padmanabiah etc.,(2) which was unreported when Bhagat Ram 's case was decided, a three Judge Bench of this Court confirmed the decision in Hethubha 's case.
In this case the accused who were found guilty of offences under sections 5(2) and 5(1)(c) and 5(1)(d) of the Prevention of Corruption Act, 1947 as well as sections 467 and 471 of the Indian Penal Code by the Special Judge, Gauhati, challenged the order of conviction in the High Court of Assam and Nagaland.
On difference of opinion between the two Judges of the Division Bench of the High Court, the case was referred to a third Judge.
Before the third Judge new plea was advanced that the Magistrate at Delhi had no jurisdiction to accord sanction to an Inspector of the Delhi Special Police Establishment to investigate the case in Assam.
The third Judge held that an order of a magistrate of the local jurisdiction was necessary, that only a magistrate of the district where the crime was committed and no magistrate outside the jurisdiction was competent to make an 586 order for investigation and accordingly the learned Judge quashed the proceedings before the Special Judge.
In appeal to this Court it was contended that the third Judge could only deal with the difference between the two Judges and not with the whole case.
This contention was rejected with the observation: "This question came up for consideration in the recent unreported decision in Hethubha & Ors.
vs The State of Gujarat (supra).
This Court held that the third learned Judge could deal with the whole case.
The language of section 429 of the Code of Criminal Procedure is explicit that the case with the opinion of the Judges comprising the Court of Appeal shall be laid before another Judge of the same Court.
The other noticeable feature in section 429 of the Code of Criminal Procedure is that the judgment or order shall follow the opinion of the third learned Judge.
" In view of these authorities which were not noticed in Bhagat Ram 's case we are unable to agree that the learned third Judge in the instant case to whom it was referred under section 429 overstepped the limits of his jurisdiction in deciding the case as he did.
On the merits of the case, we have already indicated how the learned third Judge viewed the evidence; it cannot be said that the view taken was unreasonable or perverse.
The appeal is accordingly dismissed.
N.V.K. Appeal dismissed.
| Section 195(1)(b) of the Code of Criminal Procedure, 1898 provides that no Court shall take cognizance of any offence punishable under section 205 (among others) I.P.C. when such offence is alleged to have been committed in or in relation to any proceedings in any Court, except on the complaint in writing of such Court.
Clause (c) of this sub section provides that no Court shall take cognizance of any offence described in, among others, section 471 when such offence is alleged to have been committed by a party to any proceedings in any Court in respect of a document produced except on the complaint in writing of such Court.
Section 476 Cr.
P.C. provides that when any Criminal Court is, whether on application made to it or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section 195(1)(b) and (c) which appears to have been committed in or in relation to a proceeding in that court such court may make a complaint thereof and forward the same to a Magistrate First Class.
The prosecution alleged that in an application for release of a person arrested under the Bombay Prohibition Act on bail accused No. 2 identified the surety and that he attested the bail application.
Accused No. 3 was the scribe of the bail application and the affidavit accompanying it.
The Magistrate ordered his release on bail.
The case was transferred to another judicial magistrate who, when the accused failed to appear before him on the date of hearing, issued notice to the surety.
The person to whom the notice was issued (the purported surety) appeared before the Magistrate and stated that he had never stood surety in the case, nor had he ever made an affidavit nor signed any papers in this regard and being a literate person there was no question of putting his thumb impression on the affidavit and bail bond.
Accused No. 1 who was later named by accused No. 2 as the real surety admitted before the trial Magistrate that the bail application and the affidavit had been thumb marked by him at the instance of accused No. 2 and that he had no knowledge about the contents either of the application or of the affidavit.
The Magistrate made a complaint to the judicial Magistrate, First Class for prosecution of the three accused for the offences under sections 205, 419, 465, 467 and 471 IPC.
On finding that there was a prima facie case against all the accused the Magistrate committed them for trial.
695 The Additional Sessions Judge acquitted accused No. 3 but found accused No. 1 guilty of offence under sections 205, 419, 465 and 471 I.P.C. and accused No. 2 for offences under section 205 read with sections 109, 419, 465 and 471 read with section 109 I.P.C. and sentenced them variously.
On appeal by accused nos.
2 and 3 the High Court held that the proceedings before the transferee Magistrate were not the same proceedings or continuation of the same proceedings which were before the previous court in which or in relation to which the offence was committed within the meaning of section 476 read with section 195, Cr.
P.C. and that such a complaint could have been made only by the magistrate who released the accused on bail prior to the initiation of the case or his successor in office in that court but since the transferee Magistrate was not the successor in office of the Magistrate granting the bail, the proceedings before the committing Magistrate were without jurisdiction.
Allowing the appeals, ^ HELD : 1.
The High Court was not right in holding that the bail proceedings before the 'first ' Magistrate were "distinct and different" from those initiated on police challan before the transferee Court and that, therefore, the latter was not competent to hold a preliminary inquiry under section 476 Cr.
P.C. and/or to make a complaint for persecution of the respondents in respect of offences under sections 205, 419, 465, 467 and 471 IPC.
[706A C] 2.
An offence under section 205 I.P.C. will fall within the ambit of clause (b) and an offence under section 471 IPC, will fall under clause (c) of section 195(1).
The words "in or in relation to" occurring in clause (b) are not repeated in clause (c).
But these words occur in section 476 both with reference to clause (b) and clause (c) of section 195(1).
[701B].
The settled position on the interpretation of these provisions is that the bar in section 195(1)(b) does not apply if there is no proceeding in any court at all when the offence mentioned in section 195(1) had been committed.
In other words, the section contemplates only proceedings pending or concluded and not in contemplation.
[701H].
In the instant case, the forged bail bond and the false affidavit were presented in bail proceedings before the 'first ' Magistrate.
That Magistrate had jurisdiction to try the case which was then under investigation.
While considering a bail application of a person accused of an offence under investigation of the police, the Magistrate acts as a court, the proceedings in the bail application being judicial proceedings.
[702B].
Kamalapati Trivedi vs State of West Bengal ; relied on.
The bail proceedings before the 'first ' Court could not be viewed in isolation but had to be taken as a stage in and part of the entire judicial process, the second stage of which commenced on presentation of the challan by the police in the court of the magistrate for an enquiry or trial of the accused person to whom the bail had been granted.
[702G].
The very terms of the bail bond in the instant case show that they were intended to be a preliminary part of the proceedings of inquiry or trial before the magistrate commencing with the presentation of a charge sheet under section 173 Cr.
P.C. against the accused.
This being the real position, the bail proceedings before the 'first ' magistrate and the subsequent proceedings before 696 the transferee magistrate commencing with the presentation of the challan by the police for the prosecution of the accused in the prohibition case could not be viewed as distinct and different proceedings but as stages in and parts of the same judicial process.
Neither the time lag between the order of bail and the challan, nor the fact that on presentation of the challan, the case was not marked to the 'first ' Magistrate but was transferred under section 192 of the Code to the transferee magistrate, would make any difference to the earlier and subsequent proceedings being parts or stages of the same integral whole.
If the earlier proceedings before the 'first ' court and the subsequent proceedings before the transferee court were stages in or parts of the one and the same process, then it logically follows that the aforesaid offences could be said to have been committed "in or in relation to" the proceedings in the Court of the transferee Magistrate also, for the purpose of taking action under section 476 of the Code.
[703D H].
The rationale behind decided cases is that if the two proceedings, one in which the offence was committed and the other, the final proceedings in the same or a transferee court are, in substance, different stages of the same integrated judicial process, the offence can be said to have been committed "in relation to" the proceedings before the Court to which the case was subsequently transferred or which finally tried the case.
By the same token, the offences under sections 205 and 471 Penal Code in the present case can be viewed as having been committed "in relation to" the proceedings before the court of transferee magistrate to whom the case was transferred for disposal.
Therefore, the transferee magistrate was competent to make a complaint in respect of the offences, after conducting a preliminary inquiry under section 476, Cr.
P.C. [704F H].
In the instant case, it cannot be disputed that the bail proceedings before the 'first ' magistrate were judicial proceedings before a court, although such proceedings took place at a stage when the offence against the accused, who was bailed out, was under police investigation.
[705G].
Nirmaljit Singh Hoon vs The State of West Bengal & Ors., ; distinguished.
|
Appeal No. 1778 of 1967.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated October 3, 1967 of the Bombay High Court, Nagpur Bench in Election Petition No. 14 of 1967.
C.B. Agarwala and A.G. Ratnaparkhi, for the appellant.
R.M. Hazarnavis, B.A. Masodkar, section B. Wad, V.D. Chetande and M.S. Gupta, for respondent No. 1.
The Judgment of the Court was delivered by Hegde, J.
The appellant is the returned candidate from the Rajura constituency of the Maharashtra State Legislative Assembly in the general election held in February 1967.
In that election he secured 21,435 votes as against 17,521 votes secured by his nearest rival, the first respondent herein, the nominee of the Indian National Congress.
The first respondent was representing that constituency prior to the said general election.
The first respondent challenged the validity of the appellant 's election in Election Petition No. 14 of 1967 in the High Court of Judicature at Bombay (Nagpur Bench) on two grounds namely (1) that the appellant was disqualified to be a candidate in that election and (2) that he was guilty of corrupt practices under section 123(4) of the Representation of the People Act, 1951 (to be hereinafter referred to as the Act).
The High Court allowed the petition and set aside the election of the appellant on the ground that he was guilty of publishing statements of facts which are false and which he either believed to be false or did not believe them to be true, in relation to the personal character and conduct of the first respondent.
It did not uphold the contention of the first respondent that the appellant was disqualified to be a candidate.
768 Though at one stage Mr. Hazarnavis, learned Counsel for the first respondent attempted to support the judgment of the trial court on the ground that the appellant was disqualified to be candid.ate, he finally gave up that contention.
Therefore it is no necessary to examine the same.
The High Court has found that the appellant was responsible for the publication of Exhs.
55 and 56 which ,according to contained statements of facts relating to the personal character and conduct of the first respondent and those statements were either false to his knowledge or at any rate he did not believe them to be true.
It further came to the conclusion that in some of the election meetings the appellant had falsely stated that the first respondent had a share in the contract secured by him for Abid Hussain.
The bulk of the evidence adduced in this case relates to the controversy whether the appellant was responsible for the printing and publication of Exhs.
55 and 56.
The High Court has accepted the case of the first respondent that the appellant was responsible for printing and publishing those pamphlets.
We have been taken through that evidence and we agree with the High Court on that aspect of the case.
It is not necessary to deal with that evidenced as we are of opinion that the statements contained in those pamphlets do not amount to corrupt practice under section 123 (4) of the Act Section 123(4) reads: "The publication by a candidate or his agent or by any other person (with the consent of a candidate or his election agent) of any statement of fact which is false, and which he either believes to be false or does.
not believe to be true in relation to the personal character or conduct of any candidate, or in relation to the candidature or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate 's election.
" The ingredients of the corrupt practice mentioned in this section are (1 ) the publication by a candidate or his election agent or by any other person with the consent of that candidate or his election agent of any statement of fact; (2) which statement is false and which was believed by the candidate to be false or a any rate was not believed by him to be true; (3) the said statement relate to the personal character or conduct of a candidate on in relation to his candidature or withdrawal and (4) the same being a statement reasonably calculated to prejudice the prospects of that candidate 's election.
As explained by this Court in Sheopat Singh vs Ram Pratap(1) section 123(4) is designed to achieve the dual purpose of protecting (1) ; 769 freedom of speech and prevention of malicious attack on the personal character ,and conduct of rivals.
A statement which reflects on the mental or moral character of a person is one relating to his personal character or conduct whereas any criticism of a person 's political or public activities and policies is outside it.
Section 123 (4)further requires that the candidate who made a false statement should have believed it to be false or did not believe it to be rue and lastly it should be a statement reasonably calculated to prejudice the prospects of the election of the candidate against whom it was made.
The word 'calculated ' means designed: it denotes more than mere likelihood and imports a design to affect voters.
The election law in this country as in England guarantees freedom of criticism of political nature at the time of election.
It is true that the freedom of criticism given might be sometime misused.
The political history of even countries like England shows that sensational false election propaganda against a political party, particularly on the eve of election might upset the party 's electoral fortune.
But the advantage gained from free criticism though sometimes it may turn out to be irresponsible in the long run outweighs the disadvantages.
It is in the interest of democracy that such criticism should be allowed.
This is the view of political thinkers.
A political party 's reputation is not built on shifting sands.
It has, at any rate, it should have, firmer foundation and should not be affected by passing winds.
But in the case of individuals a different approach is necessary.
A campaign of slander is likely to create prejudice in the mind of the people against him.
It cannot be put down as cynicism when it is sometimes said that the bigger the lie the greater is the chance of its being accepted as true.
There is unfortunately a tendency in the minds of the unwary public to believe the worst about individuals.
Democracy will be a farce if interested persons are allowed to freely indulge in character assassination during election.
Section 123(4) as we understand it embodies the two principles discussed above.
Every false allegation does not come within the mischief of section 123(4).
When any false allegation of fact pierce the politician and touches the person of the candidate then section 123(4) is contravened.
Dealing with the meaning of the expression 'personal character and conduct ' found in section 123(4) Subba Rao J. speaking for the Court in T.K. Gangi Reddyv.
M.C. Anjaneya Reddy and Ors.(1) observed at p. 266 of the report: "the words 'personal character or conduct ' are so clear that they do not require further elucidation or definition.
The character of a person may ordinarily (1) XXH, E.L.R. p. 266.
770 be equated with his mental or moral nature.
Conduct connotes a person 's actions or behaviour.
" Dealing with a provision similar to section 123(4) Darling J., Cumberland (Cockermouth Division) case(x) observed: "What the Act forbids is this.
You shall not make or publish any false statement of fact in relation to the personal character or conduct of such candidate; if you do, it is an illegal practice.
It is not an offence to say something which may be severe about another person nor which may be unjustifiable nor which may be derogatory unless it amounts to a false statement of fact in relation to the personal character or conduct of such candidate; and I think the Act says that there is a great distinction to be drawn between a false statement of fact which affects the personal character or conduct of a candidate and a false statement of fact which deals with the political position or reputation or action of the candidate.
If that were not kept in mind, this statute would simply have prohibited at election times all sorts of criticism which was not strictly true relating to the political behaviour and opinions of the candidate.
That is why it carefully provides that the false statement, in order to be an illegal practice, must relate to the personal character and personal conduct.
" The language of section 123 (4) is 'any statement of fact which is false ', and that language must be used in contrast to a false statement of opinion.
The language used is not merely a 'false statement ' .but a 'statement of fact which is false '.
The statement in question must be in relation to the personal character or conduct of a candidate, which means a false statement of fact bearing on the personal character or conduct of a candidate.
Further one of the ingredients of the corrupt practice under section 123 (4) is that the statement complained of must be one reasonably calculated to prejudice the prospects of the election of the person against whom it is made.
It may be noted that the section does not merely say 'being a statement calculated to prejudice the prospects of the candidate 's election ' but on the other hand it says 'being a statement reasonably calculated to prejudice the prospects of that candidate 's election '.
The meaning of that expression is as held by a Division Bench of the Bombay High Court in Dattatraya Narayan Patil vs Dattatraya Krishnaji Khenvikar and Ors.(2) that the publication of false statement of fact relating to the personal character or conduct must be such as would, in the estimation of the Court, having regard to the nature of the publication, the evidence ten (1) (1901) 5, O 'M & H.p.
(2) A.I R. 771 dered in Court and the surrounding circumstances have its natural and probable consequence of prejudicing the prospects of the candidate relating to whose personal character or conduct the publication has been made.
So far as the last limb of section 123(4) is concerned, the emphasis is not so much on the intention of the publisher but on the probable effect on the election of the candidate against whom those statements are directed.
It is trite to say that the burden of proving everyone of the ingredients of the corrupt practice alleged is on him who alleges it.
If he fails to establish any one of them to the satisfaction of the Court he must fail.
We shall now proceed to consider whether the statements of facts contained in Exhs.
55 and 56 fall within the mischief of section 123(4).
Before doing so it is necessary to give the background under which the statements complained of were made.
As mentioned earlier the first respondent was representing the constituency in question prior to the general election in 1967.
Sometime before the election the cultivators in the Rajura constituency as in other places were required to deliver to the Government a portion of the juwar crop raised by them in pursuance of the levy orders made.
This circumstance must have undoubtedly caused dissatisfaction to the rooting.
Rajura Taluka was previously a part of the Nizam 's State and thereafter the State of Hyderabad till the formation of the Maharashtra State.
We understand that in that Taluka, the boundary stones had not been fixed.
The State of Maharashtra 'appears to have directed the landowners to fix the necessary boundary stones for their property within a certain period.
As some of them did not comply with that direction, the., Government took upon itself the responsibility of fixing those boundary stones at the cost of those ryots.
That work was given on contract to one Abid Hussain.
It was suggested that charges fixed were excessive.
It may be mentioned at this.
stage that during the time when the juwar levy was imposed and the contract for fixing the boundary stones was given (as also at present ), the Congress Party was in power in the State of Maharashtra.
The first respondent was a Congress M.L.A.
In the past tolls were levied on every vehicle entering the municipal limits of Rajura but some years before the election that levy had been .abolished but the same was again reimposed sometimes before the election At the time of the reimposition of that levy Shri Shankarrao Deshmukh, a Congressman was the Chairman of the Rajura Municipality.
Having mentioned these facts we shall now proceed to examine the statements in Exhts.
55 and 56.
55 is a Marathi poem composed by the appellant 's election agent Dr. Suresh Vishvanathrao Upaganlawer (R.W. 3).
Its English rendering is as follows: 772 "Request to Voters.
Rise Rise Oh Voters Awake at least now Understand and begin to work.
You have suffered for five years, auspicious day has dawned now, truthful to your conscience, wake to vote, Oh brothers wake to vote.
Today kick off (this) slavery in the freedom (and) you should expose; you should expose the sins of Vithalrao.
He held out to be the leader of the people (but) he put burden of stones (on the people) By those very stones (you) build his grave, brothers build his grave.
For recovery of levy (from us) unlimited force used against us.
They take white juwar and give red millow (to us) and now confront him (with this).
Today our luck has dawned (in that) we got a great leader.
For protecting the interests of poor people see this Guruji has taken an Avatar.
(His) name is Jivtode Shrihari, has responded to our immediate call.
By giving your invaluable vote.
To Jivtode and Kaushik Pleader, Elect them this time.
Take vow like Bhishma and begin working today brothers.
begin working today, Seeing Lion Symbol, by affixing rubber stamp on it We will show to the world, Brother we will show our candidates that success garlands (him.)" Exh. 56 is a pamphlet published in Marathi.
It purports to be an appeal by one Ganpat Patil Dhote.
The English translation of it is found at p. 563 565 of.the paper book.
It reads thus: VOTERS BE CAREFUL In the forthcoming General Elections the sitting M.L.A. Shri Vithalrao Dhote is standing for Maharashtra Legislative Assembly on behalf of Congress.
The poor people have had experience of Shri Vithalrao Dhote as M.L.A. 773 Having been elected in the 1St General Elections Shri Vithalrao Dhote would work for the benefit, of the people and develop the backward Rajura Taluka was our expectation.
But the People of Rajura Taluka have been utterly disappointed by Shri Vithalrao Dhote.
In the this Taluka the High School which was there in the times of Nizam the High School is there in whole of Rajura Taluka till to day.
Shri Vithalrao Dhote could not construct a Single Pucca Road.
Could not supply electricity to any village anywhere.
Could not make arrangements for watering agriculture.
In this Taluka though there is thousands of acres of fallow land, for distributing it to landless no effort was made by Shri Vithalrao Dhote.
In the last five years no work for the benefit of the people has been done by Vithalrao Dhote.
On the contrary, through his selfish and fraudulent companion Shri Shankarrao Deshmukh, the Municipal President of Rajura (he got) imposed the stopped toll tax on the bullock cart (Rengi and Bandi) of poor people coming to Rajura.
Its effect has been surely felt by every poor man in the Taluka.
Similarly by fixing boundary stones on the Dhuras of the cultivators in Rajura Taluka and by recovering price of stones Shri Vithalrao Dhote has worked for the benefit of Abid Husain Thekedar alone.
In this taluka the cultivators could not get Taccavi loans without giving bribe at the time of distributing taccavi, Shri Vithalrao Dhote could not check bribery.
Shri Vithalrao Dhote has neglected the poor people by looking to the interests of Thekedar (contractor) alone.
By this, poor people have lost all faith in Shri Vithalrao Dhote in Rajura Taluka.
By this the poor people are very much harassed.
When I myself moved in the villages in this Taluka, I found that public opinion is inclined against Shri Vithalrao Dhote.
People are organised as Shri Vithalrao Dhote has harassed the poorer for furthering interests of his selfish and deceitful companion.
Because of this and with great reluctance and keeping interests of public in view I am publishing this pamphlet against Amdar Vithalrao Dhote to keep the true facts before the public.
The man who is proving dangerous to the majority in the Society and poorer section of the public has to be pulled down from his office (and) except this, there is no other way is ' my belief.
Hence I humbly request the voters in Rajura Constituency that they should not vote for the Congress candi 774 date Shri Vithalrao Dhote.
Contesting candidate from Rajura Constituency Shri Jivatode Guruji has 'worked for spread of Education by opening Janata High Schools.
Shri Jiotode Guruji has benefited the poor people by opening all kinds of colleges of Chanda. "Shri Jiotode Guruji" will bring about the development of backward Rajura Taluka positively.
Hence by putting a cross on the Lion Symbol of Vidarbha Joint Front 's Shri Jiotode Guruji, Shri Jiotode Guruji be elected by a large majority is my humble and earnest request to the voters.
yours humbly Symbol of Lion Ganpat Patil Dhote Put Cross only on Lion.
In small type Publish: Ganpat Patil (Shivshakti of Chote r/o Nimani T. Rajura Chandrapur).
The various statements contained in these two pamphlets are summarised by the learned Trial Judge thus: "(a) (The Petitioner) has imposed the toll tax on poor citizens on their bullock carts through his selfish and bogus companion Shri Shankarrao Deshmukh, President of Rajura Municipality, which has caused undue suffering to every poor citizen residing in this part.
(b) Vithalrao Dhote has only secured advantage for Abid Husain, Contractor, by imposing the burden of paying for the border stones which were compulsorily ordered to be fixed.
(c) In this taluq no cultivator has been able to get taccavi without payment of bribe 'and Vithalrao is unable to prevent it.
(d) Vithalrao Dhote has solely protected the interest of the contractor and neglected the poor citizens and on that account Vithalrao Dhote has forfeited confidence of poor persons in Rajura taluq.
(e) The poor population is simply harassed and I have found that the inclination of the people is against Vithalrao Dhote when I went around in the village.
(f) Poor persons are simply harassed on account of exploitation and ruin caused by Vithalrao Dhote solely for the benefit of his selfish and bogus companions.
775 (g) Persons (meaning the petitioner) who is a menace W the majority of the community and poor persons must be sacked from the office in my firm conviction.
" None of the afore mentioned allegations can be hold to relate to the personal character or conduct of the first respondent.
They are undoubtedly criticism, true, false or exaggerated, of the first respondent 's roll as politician.
Those statements do not make any reflection on the moral or mental qualities of the first respondent.
As mentioned earlier a Congressman was the President of the Rajura Municipality 'at the time the tolls were reimposed.
It may be that the first respondent had no hand in the matter of reimposition of the tolls and that the accusation that he got it reimposed is not true but that in no manner can be said to reflect on the personal character or conduct of the first respondent.
Similarly the accusation that the first respondent secured advantage for Abid Hussein by imposing a burden on the land owners by making them pay for the boundary stones cannot be said to reflect on the private character of the first respondent whether the statement in question is true or false.
The appellant had a right to hold the first respondent responsible for the actions of the Government as he was a member of the party in power.
The allegation that in the Rajura Taluka no cultivator had been able to get Taccavi loans without payment of bribe and that the first respondent was unable to prevent it, is undoubtedly a legitimate criticism.
The allegation that he solely protected the interests of the contractor and ignored that of the poor citizens and on that account he has forfeited the confidence of the poor persons in his constituency is an expression of an opinion, whether the same is true or not.
The allegation that the poor population is simply harassed and that the signatory to the pamphlet found that the inclination of the people is against the first respondent when he went around in the village, is merely an opinion and not a statement of fact.
Similarly the allegation that the poor persons are being harassed on account of the exploitation and ruin caused by the first respondent solely for the benefit of his selfish and bogus companions is an expression of an opinion and it is a permissible criticism in a political debate.
The assertion that the first respondent is a menace to the majority as also to the poor and therefore he must be sacked from the office is as stated in the pamphlet itself is purported to be the conviction of the person who issued the statement.
He is entitled to hold that opinion and propagate it.
It must be remembered that during election time passions are roused; election propaganda should not be tested by the standards to be adopted in a debate carried on by intellectuals.
It may be that many of the charges levelled against a candidate as regards his political past or about his capacity to be a useful representative 776 are not true.
It is for the electorate 'to judge those accusations.
So long as those accusations do not affect the personal character or conduct of the candidate, the election law will not take note of it.
That is why it is said that a politician must be thick skinned and more so at election time.
As mentioned earlier it is not a corrupt practice to say something which may be severe about another person, nor which may be unjustifiable nor which may be derogatory unless it amounts to a false statement of fact in relation to his personal character or conduct.
It is unfortunate that the High Court exclusively focussed its attention on the question whether or not the appellant caused to get Exhs.
55 and 56 printed and published and completely ignored the true effect of the statements contained therein.
It proceeded on the erroneous impression that every false or unjustified criticism of a candidate amounts to a contravention of section 123(4).
Dealing with Exhs.
55 and 56 this is what the learned Trial Judge observed: "To say against anybody that he is responsible for imposition of a tax without ' justification through.
that person 's selfish and pretentious friend like the President of the Municipal Council is, to say the least, to suggest that such person is the direct cause of 'harassment on account of such taxation on poor people.
It is said in the third paragraph of the pamphlet and then there is a direct allegation against the petitioner that it is the petitioner who caused the cultivators in the Rajura taluq to be burdened with.
the expense of fixing.
the border stones and that in doing so the petitioner Vithalrao Dhote has solely secured an advance for Abid Hussain Thekedar.
In the fourth paragraph, it is categorically alleged that the petitioner Vithalrao Dhote has exploited and harassed poor people in order to benefit his i.e. Vithalrao selfish and pretentious friends and such harassment has caused untold miseries.
That these allegations are scurrilous does not admit of any doubt.
They are defamatory per se.
Every citizen is entitled to be presumed to be innocent until contrary is proved.
If therefore an allegation of a personal character is made against anyone, it is the maker of the allegation who has to establish that there is truth in the allegation.
" It is clear that the High Court failed to examine the effect of the statements contained in Exhs.
55 and 56 by the tests prescribed in section 123(4).
Further there is no proof in this case that the statements contained in Exhs.
55 and 56 are reasonably calculated to prejudice the election of the respondent.
The Trial Court did not give any finding effect.
777 This leaves us with the question whether the appellant had announced in his election meetings that the first respondent had a share in the profits earned by Abid Hussain in the matter of fixing boundary stones.
The High Court has held that the appellant made that accusation while 'addressing election meetings at two places.
If that finding is correct then undoubtedly there is a contravention of section 123(4) but after carefully examining the material on record we have come to the conclusion that finding is unsustainable.
The election petition was filed on April 11, 1967.
That petition merely sets out what according to the petitioner are the contents of Exts.
55 and 56.
It is not stated therein that apart from the statements contained in those pamphlets any other false statement of fact relating to the personal character or conduct of the first respondent had been made either by the appellant or his supporters.
The allegation that the appellant in his election meetings had stated that the first respondent had a share in the profits earned by Abid Hussain in the matter of fixing the boundary stone is not mentioned there.
An application to amend the election petition was made on June 24, 1967.
In that application also there is no reference to the allegation in question.
The election petition was again amended on 3 7 1967.
It was only then the following allegation was made: "He (the appellant) was falsely alleging that the petitioner was or had actively helped Abid Hussain for his selfish ends to make illegal gains and thus allege false corrupt motives to him." Even this allegation is vague.
That apart it is a highly belated allegation.
It appears to be an afterthought.
It is not necessary for us to decide in this case whether such an amendment could have been permitted after the limitation for filing the election petition had expired.
But the very circumstance that the allegation in question was made several months after the election petition was filed by itself casts serious doubt on the veracity of that allegation.
This circumstance was completely overlooked by the High Court.
The witnesses who spoke in support of the said allegation are the first respondent (P.W. 2), P.W. 9, Arjan Kashinath Masirkar and P.W. 12, Nazir Hussain Akbar Ali.
So far as P.W. 2 is concerned he is undoubtedly an interested witness.
In the circumstances mentioned above, his evidence can have very little persuasive value.
So far as P.W. 9 is concerned on his own showing he was highly interested in the first respondent and the Congress Party.
As elicited during his cross examination he was a Congress candid.ate for election as Sarpanch and as a member of the Panchayat Samiti.
The appellant 's cousin was his rival in that election.
Admittedly during the last election he canvassed for the 778 first respondent.
Under these circumstances much reliance cannot be placed on the testimony of this witness.
Then we come to the evidence of P.W. 12.
During his cross examination this is what he stated: "I have not received a summons.
Vithalrao had asked me to produce the register where the hire of cycles is noted and that is how the chits which I have filed came with the register . ." His evidence is to the effect that the appellant while presiding over the meeting at Rajura on February 13, 1967 stated that the first respondent had a share in the contract for fixing of border stones which was produced for him by Vithalrao.
When he was crossexamined about that meeting this is what he stated: "I don 't remember who was the President of the meeting.
I will ' not be able to name at this distance of time the names of persons from the town or the villagers who were listening at the meeting.
I will not be able to name a single person from amongst these.
" Obviously he is a procured witness.
No reliance can be placed on his evidence.
For the reasons mentioned above we hold that the election petitioner (first respondent herein ) has failed to make out that the appellant had contravened section 123(4).
Hence this appeal succeeds and the election petition stands dismissed.
We are of opinion that we should not award any costs to the appellant.
He had come forward with a false case and had protracted the trial of the case by adducing voluminous false evidence.
Hence we direct the parties to bear their own costs both in this Court as weld as in the High Court.
G.C. " Appeal allowed.
| The appellant was the returned candidate from the Rajura constituency Maharashtra State Legislative Assembly in the general election held in February 1967.
The first respondent who was one of the defeated candidates challenged the appellant 's election in an election petition.
The High Court held that the appellant had made false statements about the personal character and conduct of the first respondent and was guilty of corrupt practice within the meaning of section 123(4) of the Representation of the People Act, 1951.
On this view the High Court allowed the election petition and set aside the election of the appellant who appealed to this Court.
HELD: (i) The election law in this country as in England guarantees freedom of criticism of political nature at the time of election.
The freedom of criticism may sometimes be misused, but the advantage gained from free criticism though sometimes it may turn out to be irresponsible in the long run outweighs the disadvantages.
It is in the interests of democracy that such criticism should be allowed.
However democracy will be a farce if interested persons are allowed to freely indulge in character assassination during election.
A political party may not be affected by passing winds but a campaign of slander against an individual is likely to create prejudice in the mind of the people against him.
Section 123(4) is designed to achieve the dual purpose of protecting freedom of speech and prevention of malicious attack on the personal character and conduct of rivals.
[769 C] (b) The ingredients of the corrupt practice mentioned in section 123(4) are (1) the publication by a candidate or his election agent or by any other person with the consent of that candidate or his election agent of any statement of fact; (2) which statement is false and which was believed by the candidate to be false or at any rate was not believed by him to be true; (3) the said statement relates to the personal character or conduct of a candidate or is in relation to his candidature or withdrawal; and (4) the same being a statement reasonably calculated to prejudice the prospects of that candidate 's election.
The burden of proving 'every one of the ingredients of the corrupt practice alleged is on him who alleges it.
[768 G; 77] (c) Every false allegation does not come within the mischief of section 123(4).
The language of the section is 'any statement of fact which is false ' and that language must be used in contrast to a false statement of opinion.
The statement in question must be in relation to the personal character of candidate.
It is when the false allegation pierces the politician and touches the person of the candidate that section 123(4) is contravened.
Further one of the ingredients of the corrupt practice under the section is that the statement complained of must be one reasonably calculated to prejudice the prospects of the election of the person against whom it is ' made. 'Calculated ' means designed: it denotes more than mere 767 likelihood and imports a design to affect voters.
The emphasis in the last limb of the section is not so much on the intention of the publisher but on the probable effect on the election of the candidate against whom those statements are directed.
[769 F G; 770 E] (ii) In the present case the statements alleged to have been made by the appellant did not amount to corrupt practice within the meaning of section 123(4) as they amounted either to fair political criticism or were mere expressions of opinion.
The complaint that the appellant had stated that the respondent had a share in the profits earned by a contractor is neither alleged in the election petition nor satisfactorily proved.
[777 D, F] Sheopat Singh vs Ram Pratap, [1965] t S.C.R. 175, T.K. Gangi Reddy M.C. Anjaneya Reddy & Ors., XXII E.L.R.p.
266 and Dattatraya Narayan Patil vs Dattatraya Krishnaji Khenvikar & Ors. , relied on.
Cumberland (Cockermouth Division) Case, , referred to.
|
ition No. 461 of 1971.
Under article 32 of the Constitution of India AND Civil Appeals Nos. 506 510, 842 844, & 1710 1713 of 1971 From the Judgment and order dated the 12 3 1970 and 27 4 1971 of the Andhra Pradesh High Court in W.P. Nos.
360 364 of 1970, 4365 4366/69, 2704/71 and 295, 297 298, 301/70 respectively.
AND Civil Appeals Nos. 2319 to 2354 of 1972 From the Judgment and order dated the 24 2 1971 of The Madras High Court in Writ Petitions Nos. 1794, 2544, 2563, 2570.
733 2598, 2600, 2634, 2635, 2636, 2642, 2643, 2644, 2764, 2795, 2806.
2807, 3409, 3459, 3679, 3698 and 3699 of 1969, and 161, 162, 307, 308, 1071, 1512, 1514, 1779, 2279, 2282, 2283, 2285, 3164, 3534 and 3535 of 1970 respectively.
A. V. Koteswara Rao and K. Rajendra Chowdhary for the Petitioners (In W.P. No. 461/71).
B. Sen, G. section Rama Rao for the Appellants (in CAs.
506510 and 1710 to 1713/71).
Naunit Lal, K. Srinivasamurthy and Lalita Kohli for the Appellants (In CAs.
2319 2354/72) and for Respondents (In CAs: Nos.
506 to 510 and 842 to 844/71).
Gopalaratnam and A. T. M. Sampath for the Respondents (In CAs.
2328, 2332, 2343 and 2337/72).
B. Sen section Gopalakrishnan (Mrs.) for Respondents (In CAs.
2323 2327, 2331, 2335 36, 2342 and 2344 47/72).
The Judgment of the Court was delivered by MATHEW, J.
We first take up for consideration Civil Appeals Nos.
506 510 of 1971.
The appellants in these appeals filed writ petitions before the Andhra Pradesh High Court questioning the validity of notices issued by the 2nd respondent therein under the Emergency Risks (Goods) insurance Act (Act 62 of 1962) and the Emergency Risks (Factories) Insurance Act (Act 63 of 1962) (hereinafter referred to as the Acts, collectively and individually as 'the Goods Act ' and 'the Factories Act ' respectively).
The impugned notices stated that the appellants had evaded payments of emergency risks insurance premia in respect of goods or factories, is the case may be, by undervaluing the goods or factories for the purpose of insuring them under the Acts.
A learned Single Judge of the High Court allowed the writ petitions on the ground that, after the expiry of the Acts, there could be no authorized officer to determine the quantum of the evaded premia on the basis of the correct value of the goods or factories.
Appeals were filed against the orders, and a Division Bench of the Court, by a common judgment, held that the liability to pay the evaded premia arose during the currency of the Acts and that the extent of the liability could be ascertained by authorized officer even after the expiry of the Acts and allowed the appeals.
These appeals are directed against the common judgment.
The President of India, after the Chinese aggression in October, 1962, proclaimed an Emergency under Article 352 of the Constitution on 26 10 1962.
The proclamation was revoked by the President on 10 1 1968.
The Acts came into force with effect from 1 1 1963.
The Acts were in substance similar to War Risks Insurance Acts which were in force in the United Kingdom during the Second World 734 War.
It was realised after the Chinese aggression that it was necessary to make provision, if possible on war footing, for reinstating the factories damaged or ruined by enemy action and for reimbursing the loss or damage of goods and continue the commercial and economic activity with a view to stabilize the economy of the country.
In view of the magnitude of the task, no private agency in the field of insurance could have undertaken it.
By the Acts, the Central Government undertook the task of insuring factories and goods against loss damage sustained by enemy action.
The Acts in substance provided for compulsory insurance against emergency risks of every person carrying on business as a seller or supplier of goods in respect of the insurable goods, which were from time to time owned or deemed to have been owned by him in the course of such business, if the insurable value of such goods lying in one and the same city or district exceeded Rs. 30,000/ and of all factories falling within the purview of the Factories, 1948.
The schemes framed under the Acts provided for procedural matters relating to the mode of valuation of the insurable goods and assets, receipt of applications for the issue of policies, payment of premium, the terms and conditions attaching to such policies and settlement of claims and other matters.
The provisions of the two Acts were more or less similar.
We would now refer to certain provisions of the 'Factories.
Act '.
Under section 1(3) of that Act, it was provided that the Act would remain in force during the period of operation of the proclamation of emergency issued on 26 10 1962 and for such further period as the Central Government might declare to be the period of emergency for the purpose of the Act.
It was also provided in that section that the expiry of the Act shall not affect anything done or omitted to be done before such expiry and section 6 of the , shall apply upon the expiry of the Act as if it were repealed by a Central Act.
Section 2(f) of that Act defined 'insurable value ' of property as the value of the property as ascertained for the purpose of insurance under the Act.
Section 2(j) defined 'quarter ' as meaning a period of three months commencing on the first day of January, April, July or October and section 2(i) defined 'emergency risks '.
Section 3 of that Act empowered the Central Government to put into operation a scheme called the "Emergency Risk (Factories) Insurance Scheme", where by the Central Government would undertake, in relation to factories, the liability of insuring property against emergency risks.
Under section 3(3) (a), the liability of the Central Government as insurer did not extend to more than 80 per cent of the insurable value of the property insurable.
Under section 3(3) (c), the premium under a policy was payable at a rate not exceeding 3 per cent per annum of the sum insured as may be specified in the scheme.
Section 3(7) enjoined that every scheme shall be laid before each House of Parliament for a total period of thirty days.
735 Section 5(1) said that while a scheme was in operation, every owner of a factory shall take out a policy of insurance against emergency risk, issued in accordance with the scheme, for a sum not less than the insurable value of the property, and, if any owner of factory failed to fulfil the obligation under section 5(1) and failed to pay the premium on the policy which was subsequently due, he was liable to be convicted of an offence under section 5(4), punishable with fine and, that would be without prejudice to any other penalty or liability incurred in consequence of the failure.
Section 6 placed restrictions on carrying on certain insurance business.
By section 7, the Central Government was authorised to create an "Emergency Risks (Factories) Insurance Fund".
The Central Government was authorized, under section 8, to require the owner or occupier to furnish any document or information to a person authorized by it.
Section 11 provided that where any person had failed to insure as or to the full amount, required by the Act, and had thereby evaded the payment by way of premium of any money which would have had to pay but for such failure, an officer authorized in that behalf by the Central Government might determine the amount the payment of which had been so evaded.
The amount so determined shall be payable by such person and shall be recoverable from him as provided in sub section (2) of section 11.
And sub section (2) stated that any installment of premium due on a policy of insurance issued under the scheme and any amount determined as payable under sub section (1) shall be recoverable as an arrear of land revenue and shall be a first charge on the property in respect of which the default was made.
Section 11(3) stated that a person against whom a determination is made under sub section (1) could, within the period specified in the scheme, appeal against such determination to the Central Government, whose decision therein shall be final.
Now we will note a few relevant provisions of the Emergency Risk (Factories) Insurance Scheme.
The Scheme was put into operation with effect from 1 1 1963.
In clause 6 of the Scheme it was provided that an application for insurance should be made in the form set out in Part A or Part of the First Schedule thereto according as the application was for the original or supplementary policy, and that it should be made to the government agent or such other officer of the government agent as might be authorized by that agent in this behalf and the application must be accompanied by a treasury challan evidencing the payment of the requisite premium into the Government treasury.
Clause 7 pertained to the method of valuation of insurable property.
It laid down that the insurable value of the property shall be ascertained in accordance with the principles mentioned therein.
Clause 8 fixed the rate of premium to be 25 paise for every 100 rupees or any part thereof in respect of the quarter ending 31 3 1963.
Clause 9 related to issue of policy and verification of previous policies.
Clause 12 mentioned the date from which the policies would be effective.
736 Clause 13(1) provided that where any person had failed to pay any premium due from him or to insure as, or to the full amount, required by the Act and had thereby evaded the payment by way of premium of any money which he would have had to pay but for such failure, the amount evaded shall be determined in accordance with the Third Schedule; and sub clause (2) provided for appeal against the determination.
Sub clause (3) of clause 13 stated that where the amount determined under the provisions of sub clause (1) or sub clause (2) was fully recovered, the government agent shall, as soon as possible after such recovery, send the requisite application forms to the defaulter for completion and return, and a policy or supplementary policy in respect of the property concerned according as the recovery was in respect of non insurance or under insurance shall be issued by the government agent on receipt of the application correctly filled in, the said policy being made out so as to take effect from the date the amount was fully recovered.
Clause 16 declared that the insured person shall bear 20 per cent of the loss or damage.
It also declared that if the total value of the property insured exceeded the sum insured, the insured person shall be considered as his own insurer for the excess as well as for 20 per cent of the sum insured.
The First Schedule to the Scheme contained forms of applications for a policy or supplementary policy and other matters.
The Second Schedule gave a model form of the policy to be Issued.
According to the Third Schedule, the authorized officer, when he k had reason to believe that the owner or occupier of any property insurable under the Act had failed to pay any premium and had thereby evaded the payment by way of premium of any money which he would have had to pay but for such failure, the officer may serve on such owner or occupier a notice requiring him to show cause why he failed to insure the property or to full amount as required by the Act and further to produce before the officer on such date any document or other evidence in support of his case.
The officer, after providing him an opportunity of being heard shall assess the insurable value of the property and the amount of premium, the payment of which had been evaded.
The Schedule made provisions for appeal to the Central Government.
The provisions of the Scheme framed under the 'Goods Act ' were practically the same.
The appellants challenged the finding of the High Court that the liability to pay the evaded premia arose during the currency of the Acts and contended that the liability itself was dependent on the ascertainment by the authorized officer of the insurable value of the factory or goods in accordance with the Third Schedule and that until the extent of the liability was so ascertained, there could be no liability and so, section of the was not attracted.
In other words, the contention was that until the liability of the insured was determined by the authorized officer by ascertaining the correct 737 insurable value in accordance with the provisions of the Third Schedule no liability to pay the evaded premia arose and therefore, no liability was incurred before the expiry of the Acts which could be enforced under the provisions of section 6 of the after their expiry.
It is clear from the provisions of the Acts that the duty to take out insurance policy for the full insurable value of the factory of goods was mandatory and that the failure to do so was an offence.
Besides, in the case of failure to insure for the full insurable value, provisions were made for recovery of the relative premia.
To effectuate this purpose, the procedure for determination of the insurable value of the factory or goods and of the premia evaded was also provided.
There is no compulsion in a voluntary insurance that the cover should be made for the entire insurable value of the property.
The premium collected in a voluntary insurance is related to the quantum of the risk undertaken in the light of the insurable value suggested by the insured.
Generally, in a voluntary insurance, the premium is paid in consideration of the cover provided.
In other words, premium is paid in order to enable the insurer to indemnify the insured against loss or damage on account of the risk specified.
The scheme of insurance envisaged by the Acts was different.
There was no element of consensus on the fundamental terms of insurance in the scheme.
The liability to take insurance policy for the full insurable value of the factory or goods was compulsory.
The terms and conditions of the policy to be taken were governed solely by the provisions of the Acts and the Schemes.
It is a mistake to assume that the rights and liabilities of the parties in this statutory scheme were similar to those of a voluntary contract of insurance.
If the liability to take the insurance policy for the full insurable value was absolute and if the terms and conditions of insurance were settled by the terms of the statutes and the Schemes read with the Schedules, there is no merit in the contention of counsel for the appellants that the obligation of the President as insurer was same as that of an insurer in a contract of voluntary insurance.
The liability to pay premia ill case of under valuation was not dependent upon the subsequent determination of the full insurable value of the factory or goods insured.
If the factory or goods was under valued, when the insurance policy was taken, the liability to pay premia on the basis of the full insurable value arose at the time when the policy was taken.
That liability was not dependent upon the ascertainment of the full insurable value by the authorized officer in accordance with the Third Schedule.
In Ekambarappa vs Excess Profits Tax officer(ll) this Court held that the liability for excess profits tax arose at the close of the accounting year and was not dependent upon its ascertainment by an order of assessment.
In the same way, the liability to pay the premia on the basis of the full insurable value of the factory or goods insured was incurred Acts and the schemes were in operation. 'The (1) ; 738 liability to pay premia on the basis of the full insurable value of the factory or goods is one thing; the quantification of the amount is another.
But it was argued that if a policy was taken not for the full in surable value, the authorized officer should have ascertained the cor rect insurable value within the quarter and a supplementary policy should have been issued on the basis of the full insurable value, also within the quarter, so that the liability to pay premia on the basis of the full insurable value might arise.
In other words, the argument was that the liability to pay premia on the basis of the full insurable value in case of under insurance was conditioned by the capacity on the part of the insurer to issue a supplementary policy within the quarter undertaking to indemnify the insured on the basis of the correct value against emergency risks, and, as the insurer ceased to have the capacity after the expiry of the quarter, and a fortiort after the expiry of the Acts, to issue a supplementary policy undertaking the liability to indemnify against loss arising out of emergency risk, on the basis of the full insured value, the obligation to pay premia on the full insurance value ceased, as, after the expiry of the Acts, there could no longer be any emergency risk.
We do not think that the argument is correct.
As we said, the obligation to insure for full insurable value of the factory or goods was an obligation which was not dependent upon the corresponding liability of the insurer to indemnify.
If the owner of factory or goods failed to take insurance policy at the time he ought to have taken it and pay the premia, the liability of the insured to pay the premia could be enforced under clause 13 or 14 respectively of the Schemes under the 'Goods Act ' or the 'Factories Act '.
In such a case there would be no obligation on the part of the President to indemnify the insured in case of loss or damage on account of emergency risk the insured did not take out the policy of insurance.
The obligation to issue the policy or supplementary policy, as the case may be, would arise only after payment or recovery of the evaded premia, and even then, the liability of the insurer under the policy or supplementary policy would be from the date of payment or recovery of the evaded premia.
The fact, therefore, that no supplementary policy was issued before the expiry of the Acts is no answer for not fulfilling the obligation of the insured to pay the premia in accordance with the correct insurable value of the factory or goods as determined under the Third Schedule to the Schemes.
Therefore, if under 6.
S of the 'Factories Act ' or under section 7 of the 'Goods Act ', the liability to pay the premia on the full insurable value was incurred before 'he expiry of the Act, section 6 of the would enable the ascertainment of the extent of liability for the evaded premia by an officer who was authorized when the Act was in force or by an officer authorised after the expiry of the Act.
The principle behind section 6 of the is that all the provisions of the Acts would continue in force for purposes of enforcing the liability incurred when the Acts were in force and any investigation, legal proceeding, remedy, may be instituted, continued or enforced as if the Acts had not expired.
739 The Third Schedule to the Schemes provides for the method of ascertaining the liability in case of under insurance.
The provisions of the Third Schedule show that the officer has to give an opportunity to the insured to show cause why he should not be made to pay the premia on the basis of correct value of the factory or goods under valued.
It was contended for the petitioner in Writ Petition No. 461 of 971 that the provisions of the Acts contravened Articles 14, 19 and Article 19 is not available to the petitioner for challenging the validity of the provisions of the Acts as these Acts were passed during the currency of the proclamation of emergency under Article 352.
No doubt, when the proclamation of emergency was revoked in 1968, the provisions of the Acts became liable to be challenged on the ground that they violated Article 19(1); but the liability incured for acts or omissions during the currency of the proclamation of emergency cannot be nullified even if it be assumed that the provisions of the Acts were violative of Article 19.
In other words, liability crated by an act or omission when the Acts were in operation during the currency of the proclamation of emergency cannot be challenged even after the revocation of the proclamation on the ground that the provisions of the Acts violated Article 19.
This, we think, is the principle laid down by this Court after reading Article 358 of the constitution in Makhan Singh vs State of Punjab(1).
We also think that the procedure for ascertaining the correct in surable value of the factory or goods is reasonable, having regard to the provisions of the Third Schedule in that behalf and cannot, therefore, violate Article 19(1)(f) or (g).
The writ petitioner has not shown how the provisions of the Acts violated Article 14.
And, as regards the contention of the petitioner that the provisions of the Acts violated Article 31(1), we do not think that the petitioner was deprived of any property without the authority of law.
he petitioner has not succeeded in showing law the law which deprived him of his property could be challenged on the ground that it was violative of any of the provisions in of the Constitution; We dismiss Writ Petition No. 461 of 1971 and Civil Appeals Nos.
506 510, 842 844 and 1710 1713 of 1971 and allow Civil Appeals Nos.
2319 2364 of 1972 without any order as to costs.
P.H.P Appeals partly allowed.
| The State Electricity Board had framed, in exercise of its power under section 49 of the , certain terms and conditions and, the procedure in regard to supply of electricity to its.
consumers.
For big consumers the system of tariff is the two part tariff system comprising of (1) Demand charge and (ii) Energy charge.
A "Demand charge" means the amount chargeable per month in respect of the Electricity Board 's readiness to serve the consumer irrespective of whether he consumes any energy or not and is based upon certain factors.
"Energy charge" means the charge for energy actually taken by the consumer and is applicable to the units consumed by him in any Month.
This was in addition to any demand charge, if applicable.
A schedule of tariff of energy was framed by the Board.
4(b) mentions how the monthly demand charge shall be calculated and sub clause (f) of this clause states that in the event of lock out, fire or any other circumstances considered by the supper to be beyond the control of the consumer, the consumer shall be entitled to a proportionate reduction of demand charges/minimum charges.
As a result of shortage of electricity the State Electricity Board considerably restricted the supply to large industrial concerns.
Because of this the Board allowed some reduction in the demand charges.
The appellant, who was a bulk consumer of electricity, could not get the full quantity as per the contract between the parties.
The appellant, therefore, filed a writ petition that there should be either no demand charge at all.
when the Board was not in a position to supply electric energy, or there should be a proportionate reduction of the demand charge.
The High Count noted the reduction made by the Board and held that the Board was entitled to the demand charge.
It did Dot, however decide as to what should be the basis for and in what proportion the demand char o should be reduced.
The appellant also contended that no duty was lovable on the demand charge, under the Punjab Electricity (Duty) Act, 1958 but only on the energy charge, for the actual amount of energy supplied but the High Court rejected this contention.
Allowing the appeal in part on the first contention, ^ HELD: (1) The circumstance of power cut which disabled the Board to give the full supply to the appellant would be a circumstance which disabled the consumer from consuming electricity as per the contract and this was a circumstance which was beyond it control and could not be considered otherwise by the Board.
It entitled the consumer to a proportionate reduction of the demand charge.
In a circumstance like this the obligation of the consumer o serve at least 3 days ' notice on the supplier as per the later part of sub clause (f) was not attracted as the requirement of the notice was only in the case of shut down of not less than 15 days ' duration [682 A, B, C] Therefore, the inability of the Board to supply electric energy due to power cut as per the demand of the consumer according to the contract will be reflected in and considered as n circumstance beyond the control of the consumer which prevented him from consuming electricity as per the contract to the extent it wanted to consume.
[682, D] 2 L159SCT/76 678 (2) A reading of the clauses of the Schedule of tariff as a whole makes it clear that the duty under the Punjab Act is chargeable on the price of energy supplied in a month.
Therefore, the duty is chargeable not only on the energy charge but also on the demand charge.
It is, however, chargeable on the actual amount of demand charge realizable from the consumer.
|
Appeal No. 180 of 1963.
Appeal by special leave from the judgment and decree dated February 19, 1958 of the Patna High Court in Appeal from Appellate Decree No. 919 of 1954.
Sarjoo Prasad and B. P. tha, for the appellants, 159 A. V. Viswanatha Sastri, B. K. P. Sinha and A. G. Ratna parkhi, for the respondent.
The Judgment of the Court was delivered by Bachawat, J.
The plaintiffs appellants instituted Title Suit No. 91 of 1950, out of which this appeal arises, for redemption of two usufructuary mortgages created by plaintiff No. 1 and ancestors of plaintiffs Nos. 2 to 6 dated July 5, 1927 and April 15, 1928 in favour of the defendant for Rs. 1,000 and Rs. 1,300 respectively.
The mortgage dated July 5, 1927 was in respect of 7.20 acres of occupancy raiyati lands, consisting of four plots Nos.
149, 155, 955 and 957, in village Hichapur under the Tikari Raj.
The mortgaged lands were part of a larger holding of 23.69 acres under khata No. 59, and the annual rent of the entire holding was Rs. 153 3 0.
The mortgage deed provided that the mortgagee would pay Rs. 33 14 9 out of the total rent payable to the landlord and the mortgagors would pay the balance rent.
There was default in payment of rent for several years.
The landlord obtained a, decree for arrears of rent, and at the rent sale held on June 18, 1934, the mortgagee defendant purchased the Hichapur lands in the farzi name of Dwarkalal.
The mortgage dated April 15, 1928 was in respect of 7.20 acres of lands in village Utrain tinder kahas mahal.
The mortgaged lands were part of a larger holding of 1988 1/2 acres in khata No. 269.
The, rent of the entire holding was Rs. 155 4 0.
The mortgage deed provided that the mortgagee would pay Rs. 68 10 9 out of the total rent and the balance rent would be payable by the mortgagors.
There was default in payment of rent for several years.
Certificate proceedings were started for the recovery of the arrears of rent, and at a certificate sale held on January 22, 1934, the Utrain lands were purchased by the defendant in the farzi name of Deonarain.
It appears that out of the sum of Rs. 33 14 9 pay able by the mortgagee annually on account of the rent of the Hichapur lands, the mortgagee consistently paid Rs. 33 annually, but did not pay the balance sum of 14 annas 9 pies, whereas the mortgagors consistently defaulted in payment of the sum of Rs. 119 4 3 payable by them annually on account of the total rent.
It also appears that out of the sum of Rs. 68 10 9 payable by the mortgagee annually on account of the rent of the Utrain lands, the mortgagee consistently paid Rs. 68 annually but did not pay the balance sum of 10 annas 9 pies, whereas the mortgagors consistently defaulted 160 in payment of the sum of Rs. 86 9 3 payable by them annually on account of the total rent.
The trial Court decreed the suit.
The first appellate Court allowed the appeal in part, passed a decree for redemption of 3.93 acres of plot No. 955 only on the ground that this portion of the land was not sold at the rent sale and gave leave to the defendant to withdraw Rs. 1,000 deposited by the plaintiff in respect of the mortgage dated July 5, 1927.
The High Court dismissed a second appeal preferred by the plaintiffs.
The plaintiffs now appeal to this Court by special leave.
The plaintiffs contend that the purchases at the rent sale and the certificate sale were made by the mortgagee by availing himself of his position as such and having regard to section 90 of the and Illustration (c) to it, the purchases enured for the benefit of the plaintiffs and they are entitled to redeem the entire mortgaged lands.
The defendant mortgagee disputes this contention, and claims that the aforesaid sales extinguished the equity of redemption.
Section 90 of the and Illustration (c) to it are as follows : "Where a tenant for life, co owner mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage.
(c) A mortgages land to B, who enters into possession.
B allows the Government revenue to fall into arrears with a view to the land being put up for sale and his becoming himself the purchaser of it.
The land is accordingly sold to B. Subject to the repayment of the amount due on the mortgage and of his expenses properly incurred as mortgagee, B holds the land for the benefit of A." 161 In Basmat Devi vs Chamru Sao(1), a part of one entire hold ing was mortgaged, both the mortgagor and the mortgagee were liable to pay the rent of the holding, both of them defaulted in payment of the rent, the default of both contributed to the passing of a rent decree and the sale of the holding in execution of, the decree, the default of the mortgagee being substantial, and the mortgagee purchased the holding at the execution sale.
On these facts, this Court held that the mortgagee clearly gained an advantage by availing himself of his position as such, and having regard to section 90 of the his purchase must inure for the benefit of the mortgagor, and the mortgagor was entitled to redeem the mortcaged property.
In that case, Das Gupta, J. observed "Whether this would be true even where the portion which the mortgagee is liable to pay is so very small that the property is not ordinarily likely to be brought to sale for that amount, it is unnecessary for us to decide in the present case.
" The question left open by Das Gupta, J. arises for decision in the present case.
This is a case where the mortgaged property is part of a larger holding, the mortgagee agreed to pay a portion of the rent of the entire holding, and the mortgagors agreed to pay the balance rent payable in respect of it.
The mortgagors defaulted in payment of the rent payable by them.
The mortgagee paid almost the entire amount of the rent payable by him but defaulted in payment of a trifling sum.
The portion of the rent which the mortgagee failed to pay is so small that it is impossible to say that the property was brought to sale for it or that his default was in any real sense a contributory cause of the sale of the property.
it is not shown that non payment of the trifling sums by the mortgagee was made mala fide or with the ulterior object of the property being put up for sale and his becoming the purchaser of it.
The mortgagee did not gain any advantage by availing himself of his position as such or of a situation brought about by his own default.
The real effective cause of the sale was the default of the mortgagors alone.
In the circumstances, section 90 of the and Illustration (c) to it are not attracted, and the purchase by the mortgagee does not inure for the benefit of the mortgagors.
The rent sale and the certificate sale extinguished the right of redemption.
Consequently, the suit by the mortgagors for redemption of the mortgaged property is liable to be dismissed.
The first appellate Court, however, gave a decree for redemption of 3.93 acres of plot No. 955 in Hichapur village and gave (1) ; 162 liberty to the mortgagee to withdraw the entire sum of Rs. 1,000 deposited by the plaintiffs in respect of the mortgage of the Hichapur lands.
Before the High Court the plaintiffs contended, relying upon the last paragraph of section 60 of the , that they were entitled to redeem the aforesaid 3.93 acres of Utrain lands on payment of the proportionate amount of the mortgage money payable under the mortgage dated July 5, 1927.
The High Court negatived this contention.
The Courts below observed that 3.93 acres of plot No. 955 of the Hichapur lands were not sold at all at the sale held on June 18, 1934, but quite inconsistently, the Courts below also observed that the aforesaid sale held on June 18, 1934 was a rent sale and was made in execution of a rent decree.
Learned counsel on behalf of both parties conceded before us that there could be no rent sale in respect of a portion of the holding.
It may be that there was a rent sale, and by mistake, the sale certificate omitted to mention the 3.93 acres of plot No. 955.
The relevant documents are not printed in the paper book.
Having regard to the value of the subject matter in dispute, it is not worthwhile to call for a fresh finding on this point.
We, therefore, indicated to counsel on both sides in course of the argument that we shall decide this appeal on the footing that the sale held on June 18, 1934 was a rent sale and the entire Utrain lands were purchased by the defendant at the rent sale.
On this footing the last paragraph of section 60 of the can have no application.
The plaintiffs appellants do not now own the equity of redemption in any portion of the Hichapur lands.
The Courts below, therefore, should have dismissed the entire suit for redemption, and the question of redemption of a portion of the property on payment of a proportionate amount of the mortgage money does not properly arise in this case.
However, the first appellate Court gave a decree for redemption of the aforesaid 3.93 acres of land.
The High Court affirmed this decree, and there is no cross appeal by the defendant respondent.
In the circumstances, the decree passed by the Court below must be maintained.
In the result, the appeal is dismissed with costs.
Appeal dismissed.
| The ancestors of the appellants created usufructuary mortgages in favour of the respondent.
The mortgaged property was a part of a larger holding.
The mortgagee respondent had agreed to pay a portion of the rent of the entire holding and the mortgagors agreed to pay The balance rent payable in respect of it.
The mortgagors defaulted for several years in payment of the rent.
The mortgagee paid almost the entire amount of the rent but defaulted in the payment of a trifling sum.
The landlord obtained a decree for arrears of rent, and at rent sales the mortgagee pur chased the lands.
The appellant s mortgagors filed a suit for redemption of the mortgage, which was decreed by the trial court.
The mortgagee appealed, which was allowed in part passing a decree for redemption of a small plot only on the ground that this portion of land was not sold at the rent sale.
The mortgagors ' appeal to the High Court was dismissed.
In appeal by special leave, the mortgagors contended that the purchases at the rent sale and the certificate sale were made by the mortgagee by availing himself of his position as such as having regard to section 90 of the and Illustration (c) to it.
the purchases enured for the benefit of the mortgaors and they were entitled to redeem the entire mortgaged lands.
HELD : The portion of the rent which the mortgagee failed to pay was so small that it was impossible to say that the property was brought to sale for it or that his default was in any real sense a contributory cause of the site of the property.
It was not shown that non payment of the titling sum by the mortgagee was made mala fide or with the ulterior object of the property being put up for sale and his becoming the purchaser of it.
The mortgagee did not gain any advantage by availing himself of his position as such or of a situation brought about by his default.
The real effective cause of the sale was the default of the mortgagor& alone.
L161 E G] In the circumstances, section 90 of the and Illustration (c) to it were not attracted, and the purchase by the mortgagee did not enure for the benefit of the mortgagors.
The rent sale and the certificate sale extinguished the right of redemption.
[161 G H] Basmat Devi vs Chamru Sao, ; , referred to.
|
minal Appeal No. 818 of 1985.
From the Judgment and Order dated 4.7.1985 of the Kerala High Court in Criminal Appeal No. 251 of 1982.
P.S. Poti and Ms. Malini Poduval for the Appellant.
M.T. George for the Respondent.
The Judgment of the Court was delivered by N.P. SINGH, J.
The appellant along with others was put on trial for offenses under sections 302 read with 149, 148, 323 of the Penal Code on the charge of committing the murder of Moideen Kutty (hereinafter referred to as the deceased).
The Trial Court on consideration of the 695 materials on record came to the conclusion that the charges leveled against the accused persons have not been established, beyond all reasonable doubt and on that finding acquitted the appellant as well others.
On appeal being filed on behalf of the State of Kerala the High Court convicted the appellant under section 302 of the Penal Code and sentenced him to undergo rigorous imprisonment for life.
So far another accused Alavi who had been acquitted by the Trial Court was also convicted by the High Court under section 323 of the Penal Code and sentenced to pay a fine of Rs. 250 and in default thereof to suffer simple imprisonment for a term of one month.
The acquittal of other accused persons was affirmed by the High Court by dismissal of the appeal against them.
The case of the prosecution is that on 16.9.1980 Mammed Kutty at 6.00 A.M. in the morning pelted stones at the house of the deceased.
At about 12.00 in the noon while Mammed Kutty and his brother Abdulla Kutty were passing in front of the house of the deceased, a protest was made by the deceased in respect of the morning incident.
They denied that any stone had been pelted by them.
It is the further case of the prosecution that at about 2 P.M. while the deceased was sitting with his wife (PW4) and others on the varandah of his house, five persons including the appellant came to his courtyard and challenged him to come out, if he wanted to beat aforesaid Mammed Kutty and Abdulla.
The deceased stepped out into his courtyard and asked the accused persons not to create a scene.
At this the appellant and the other accused (since acquitted) gave some blows to the deceased on his hand.
Thereafter the deceased raised his hand to give a blow to the appellant.
At this very moment, the appellant took out a dagger from his waist and gave an injury on the upper part of the chest of the deceased near the left shoulder and above the armpit.
The deceased ran towards the house of PW1 and fell on the varandah.
Thereafter the accused persons escaped.
The victim was removed to the Medical Hospital Calicut, where he was examined by PW9.
But soon thereafter he expired.
The First Information Report was lodged at 7.15 P.M.
After investigation the charge sheet was submitted against five accused persons.
At the trial prosecution examined four eye witnesses PW1 to PW4.
The doctor who held the post mortem examination was examined as PW8.
He found only one incised penetrating wound vertically placed on the front of left shoulder above the left armpit 'tailing 6 cm.
in length running towards from the lower sharp end.
" According to his opinion, "The an 696 died because the artery was cut. .
This injury became dangerous only because it cut the artery. .
In the cross examination PW8 stated that it was impossible to cause an injury like one which was found on the person of the victim by the assailant standing in front of the victim.
He also stated that the tailing of the injury show that either the knife was dragged after stabing or that the injury was caused during the course of the struggle.
According to him, if the accused had given a direct blow, as is normally done, there would not have been the tailing of the injury.
The learned counsel appearing for the appellant placed the statement made in the First Information Report, the evidence of the eye witnesses, in connection with the morning incident of pelting of stones, to show that it was a concoction and none had pelted any stone on the house of the deceased.
According to the learned counsel, if this part of the prosecution case is disbelieved then it shall have a bearing on the main occurrence itself.
It was also pointed out that the prosecution has suppressed real manner of occurrence in as much as one Abdulla on the side of the accused persons was first assaulted by the prosecution party on the same day at about 1.30 P.M. and he was hospitalised after having received the injuries.
That incident was an integral part of the occurrence which has not been disclosed by the prosecution.
In this connection our attention was drawn to the evidence of DW1 who has stated that he had examined the injuries on the person of one Abdulla on 16.9.1980 at 4.30 P.M. and found three injuries on his person, (i) A contusion on the left shoulder 4 x 2 cm, (ii) abrasion below the right collar bone 3 x 5 cm.
and (iii) injury on the outer side of the left ankle 4 x 3 cm.
He has also stated that the said Abdulla had alleged that he had been assaulted with a wooden stick at 1.30 P.M. the same day.
The Trial Court while acquitting the accused persons has attached great importance to the injury found on the person of aforesaid Abdulla and has drawn adverse inference against the prosecution case.
The High Court has rightly pointed out that merely non disclosure of the aforesaid superficial injuries on the person of Abdulla even if those injuries had been caused in the same occurrence, shall not in any manner affect the prosecution case: It is well settled that if the evidence of the eye witnesses are held to be reliable and inspire confidence then the accused cannot be acquitted solely on the ground that some superficial injuries found on the person of the accused concerned, had not been explained by the prosecution.
697 According to us, if the evidence of four eve witnesses including the evidence of the son and the wife of the deceased are accepted as reliable and trust worthy then the prosecution case cannot be rejected merely on .the ground that the incident of pelting of the stones on behalf of the accused in the early morning had not been proved or established or that some minor injuries on the person of Abdulla caused in the same occurrence had not been disclosed and explained by the prosecution.
So far the four eve witnesses are concerned they have been named in the First Information Report.
The First Information Report was lodged at 7.15 P.M. the same evening, within two hours of the death of the victim.
In the First Information Report the details of the occurrence was men tioned.
The version disclosed in the First Information Report has been supported by the eye witnesses before the Court.
The learned counsel appearing for the appellant could not point out any reason why their evidence against the appellant should not be accepted.
It may be pointed out that in the First Information Report itself PW1, the informant, stated that this appellant came to the house of the deceased and challenged him as to who was there to beat Abdulla and Muhammed Kutty.
He further stated that having heard this the deceased moved towards them and asked them to go back.
At that very moment this appellant and the other co accused Alavi gave him blows on his hand.
Thereafter the deceased tried to give counter blow to the appellant.
Then the appellant took out a knife from his waist and gave a blow from the said knife, to the deceased at his left collar bone.
The prosecution very fairly admitted that accused persons were not carrying any weapon in their hands and during the protest made, a sudden quarrel and fight took place between the prosecution party and the accused persons.
Even at trial evidence the eve witnesses have admitted this part of the version and have stated that first the appellant and the other co accused gave blows on the hand of the deceased.
The knife blow was given by the appellant when the deceased was trying to give a counter blow to the appellant.
There is no dispute that the appellant suddenly took out the knife during the course of the quarrel and fight from his waist.
From the evidence of doctor PW8 referred to above it appears that injury aforesaid could not have been caused by the assailant standing in front of the victim.
It could have been caused only during the struggle.
In view of the admitted position that a sudden fight and quarrel preceded the giving of the knife 698 blow by the appellant to the victim which in all probabilities was given not while the victim and the appellant were standing face to face but during a struggle between them, causing tailing of the injury, it shall not be just and proper to hold that appellant had an intention to cause the death of the victim.
Taking the evidence of the witnesses along with circumstances of the case, according to us, the appellant had the knowledge that injury which he was causing was likely to cause death but he had no intention to cause the death of the victim.
In such a circumstances it is not possible to uphold the conviction of the appellant under section 302 of the Penal Code.
Accordingly, the conviction and sentence passed against the appellant under section 302 of the Penal Code are set aside.
The appellant is convicted under section 304 part 11 of the Penal Code and sentenced to undergo rigorous imprisonment for seven years.
The appeal is allowed in part to the extent indicated above.
The bail bond is cancelled.
N.V.K. Appeal partly allowed.
| The appellants who were the hereditary worshippers, called Guravs, of the Shree Dnyaneshwar Sansthan of Alandi, claimed to be its owners.
The respondents as trustees of the said Sansthan dismissed eleven of the Guravs in 1911, served a notice on the rest calling upon them to agree to act according to the orders of the Temple committee and appointed six Brahmins to carry on the services of the Sansthan.
The Guravs did not agree and sued the respondents for a declaration of their rights of ownership and consequential reliefs.
That litigation ended in the High Court in 1921 with the result that their claim of ownership stood rejected but their rights as hereditary worshippers were left open.
Thereafter the Guravs took forcible possession of the temple on July 25,1922.
The trustees brought a suit under section 9 of the Specific Relief Act on September 12, 1922, and obtained a decree on November 4, 1932.
In execution of that decree the Guravs were dispossessed.
The suits, out of which the present appeals arise, were filed by the appellants against the trustees for declaration of their rights as hereditary servants of the Sansthan, a permanent injunction restraining the trustees from obstructing them in the exercise of the said rights and accounts.
The respondents claimed that the appellants were servants of the Temple committee and had no hereditary rights as claimed by them; even if they had, their claim to such rights was barred by limitation.
The trial Court decreed the suits.
In appeal the High Court, while agreeing with the trial court on the merits, disagreed on the question of limitation, held the suits to be barred by limitation under article 120 Of the Limitation Act, the cause of action arising either on the filing of the section 9 suit by the respondents or, in any event, on the date when the said suit was decreed, section 23 of the Act having no application, and allowed the appeals.
It was contended on behalf of the appellants in this Court that the suits were governed by article I24 Of the Limitation Act, and even if article 120 applied, section 23 saved limitation.
Held, that the High Court was right in holding that article 120 and not article 124, of the Limitation Act applied and that section 23 had no application to the suits in question.
477 Article 124 Of the Limitation Act applies only where the cause of action for the suit is wrongful dispossession of the plaintiff and adverse possession by the defendant in respect of the hereditary office in question.
In such suits, the contest usually is between rival claimants to the hereditary office and not between such claimants and trustees.
It is impossible to ignore the provision Of Col. 3 to that article in deciding its applicability.
Kunj Bihari Prasadji vs Keshavlal Hiralal, Bom.
567 and jalim Singh Srimal vs Choonee Lall Johurry, , held inapplicable.
Thathachariar vs Singarachariar, A.I.R. 1928 Mad. 377, ap proved.
Annasami vs Advarachari, I.L.R. , distin guished.
Jhalandar Thakur vs jharula Das, Cal. 2444, referred to.
Section 23 Of the Limitation Act refers not to a continuing right but to a continuing wrong.
A continuing wrong is essentially one that creates a source of continuing injury as opposed to one that was complete and makes the doer liable for such continuance.
A completed inJury would not be a continuing wrong even though it might give rise to continuing damage.
Thus tested, the injury to the appellants resulting from the decree obtained by the trustees in the section 9 suit, which amounted to a ouster, was complete at the date of the ouster and section 23 Of the Limitation Act could not apply so as to save limitation.
Choudhury Bibhuti Narayan Singh vs Maharaja Sir Guru Mahadeu Asram Prasad Saki Bahadur, Pat. 208 and Khair Mohammad Khan vs Mst.
jannat, Lah. 22, referred to.
Maharani Rajroop Koer vs Syaed Abdul Hossein, [1880] L.R. 7 I.A. 240 and Hukum Chand vs Maharaj Bahadur Singh, [1933] L.R. 60 I.A. 313, distinguished and held inapplicable.
|
ivil Appeal No. 2794 of 1986.
From the Judgment and Order dated 18.1.1985 of the Calcutta High Court in E.M.A.T. No. 19 of 1983.
Appellant in person.
G.B. Pai, P.R. Seetharaman and Ms. Deepa Chhabra for the Respondents.
477 The Judgment of the Court was delivered by PATHAK, CJ.
This appeal is directed against the judgment and order of a Division Bench of the Calcutta High Court affirming on appeal the judgment and order of a learned Single Judge of the High Court declaring that the reference made by the Government of West Bengal in the dispute raised by the appellant is incompetent and invalid.
The appellant is a working journalist employed by the respondents, Messrs. Bennett Coleman and Company Limited.
The registered office of the company is at Bombay and its press is located in Calcutta.
The sales office of the compa ny is situated in Calcutta.
On 1 November, 1961 the appel lant was appointed a staff correspondent in the Calcutta office of the company.
The letter of appointment dated 9 November, 1961 was issued by the company from its registered office at Bombay.
Subsequently, the appellant was promoted to the post of Industrial Correspondent, Pune and was trans ferred from Calcutta to Pune from 16 February, 1976.
Upon transfer to Pune the appellant received his remuneration and allowances from the Pune office of the company, and he was under the direct control and supervision of the registered office of the company situated in Bombay.
While the appellant was in Calcutta and before his transfer on promotion to Pune the appellant applied to the Labour Department, Government of West Bengal on 29 April, 1975 under sub section
(1) of section 17 of the Working Journalists and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 (hereinafter referred to as "the Act") for recovery of the unpaid portion of his wages relating to the period April, 1968 to February, 1973 from the employer company.
On 14 May, 1975 the Government of West Bengal initiated conciliation proceedings.
The employer company participated in the conciliation proceedings and a joint conciliation meeting was held before the Conciliation Officer, Calcutta.
The appellant was transferred to Pune while the report of the conciliation proceedings was still awaited.
On 16 November, 1976 the Conciliation Officer reported failure of the conciliation proceedings and recom mended that the dispute be referred to the Labour Court under sub section (2) of section 17 of the Act.
Accordingly, the Government of West Bengal made a reference on 23 August, 1977 to the First Labour Court, West Bengal for the adjudi cation of the dispute between the parties.
An objection was raised by the employer company before the First Labour Court that the reference was incompetent as the Government of West Bengal had 478 no power to make the reference.
On 11 July, 1980 the First Labour Court rejected the objection.
The order was chal lenged by the employer company by a writ petition filed in the High Court.
By his judgment and order dated 5 August, 1982, the learned Single Judge held that the reference was incompetent.
That view was affirmed by a Division Bench of the High Court in appeal.
And now this appeal by special leave.
The question whether the Government of West Bengal was empowered to make a reference of the dispute between the appellant and the employer company must be determined by the provisions of the Act in their application to the facts of this case.
Section 17 of the Act makes provision for the recovery of money due to a newspaper employee from his employer.
Sub section
(1) requires that an application by the newspaper employee complaining that an amount due to him has remained unpaid by the employer should be made to the State Government, and provides that if the State Government is satisfied that any amount is so due it is empowered to issue a certificate for that amount to the Collector, and there upon the Collector must proceed to recover that amount in the same manner as an arrear of land revenue.
Which is the State Government to which such application lies is indicated by Rule 36 of the Rules made under the Act.
Rule 36 provides that an application under section 17 of the Act shall be made to the Government of the State where the Central Office or the Branch Office of the newspaper establishment in which the newspaper employee is employed is situated.
It is the loca tion of the Central Office or the Branch Office in which the newspaper employee is employed which determines which State Government it will be.
The Rule works in favour of the convenience of the newspaper employees.
Sub sections (2) and (3) of section 17 provide: "(2) If any question arises as to the amount due under this Act to a newspaper employee from his employer, the State Government may, on its own motion or upon application made to it, refer the question to any Labour Court constituted by it under the ( 14 of 1947) or under any corresponding law relating to investigation and settlement of industrial disputes in force in the State and the said Act or law shall have effect in relation to the Labour Court as if the question so referred were a matter referred to the Labour Court for adjudication under that Act or law.
479 (3) The decision of the Labour Court shall be forwarded by it to the State Government which made the reference and any amount found due by the Labour Court may be recovered in the manner provided in sub section (1).
" When all the provisions of section 17 are considered together it is apparent that they constitute a single scheme.
In simple terms the scheme is this.
A newspaper employee, who claims that an amount due to him has not been paid by his employer, can apply to the State Government for recovery of the amount.
If no dispute arises as to the amount due the Collector will recover the amount from the employer and pay it over to the newspaper employee.
If a question arises as to the amount due, it is a question which arises on the application made by the newspaper employee, and the applica tion having been made before the appropriate State Govern ment it is that State Government which will call for an adjudication of the dispute by referring the question to a Labour Court.
When the Labour Court has decided the ques tion, it will forward its decision to the State Government which made the reference, and thereafter the State Govern ment will direct that recovery proceedings shall be taken.
In other words the State Government before whom the applica tion for recovery is made is the State Government which will refer the question as to the amount due to a Labour Court, and the Labour Court upon reaching its decision will forward the decision to the State Government, which will then direct recovery of the amount.
Turning to the facts of the present case, it is clear that the application under sub section
(1) of section 17 was made on 29 April, 1975 when the appellant was employed at the Cal cutta Branch of the employer company.
He made the applica tion to the Labour Department of the Government of West Bengal for recovery of the unpaid portion of his wages.
When the question arose as to the amount due to the appellant, the Government of West Bengal made the reference for adjudi cation to the First Labour Court, West Bengal.
Upon the construction of sub section
(2) of section 17 which has found favour with us, it is beyond dispute, we think, that the Government of West Bengal is competent to make the reference.
In our opinion the High Court erred in holding that the reference was without jurisdiction and that it was the State of Maha rashtra which was competent to make the reference.
The application for recovery was rightly made by the appellant before the Government of West Bengal because he was then employed by the Branch Office of the employer company, Calcutta.
Once we hold that the application was rightly made before the Government of West 480 Bengal, the further conclusion must necessarily follow that it was the Government of West Bengal which possessed the power to refer the question for adjudication.
It seems to us that the High Court omitted to appreciate the inter rela tionship between the different provisions of section 17 and the fact that if the proceeding under sub section
(1) of section 17 was commenced rightly before a State Government it was that State Government alone which should make a reference to a Labour Court for adjudication.
A number of cases have been placed before us, but we do not consider it necessary to refer to them having regard to the view taken by us upon a plain analysis o.f the statutory provisions.
We may note that the fundamental question before us is whether the Government of West Bengal was competent to make the reference.
We do not consider it appropriate to decide any other questions arising upon the reference since the reference must, pursuant to this judgment, be considered to be pending still and those questions can be raised there.
Our attention has been drawn by learned counsel for the employer company to an award of the Labour Court of West Bengal where, it is said, the question covered by the im pugned reference has already been concluded on its merits.
That is a submission which is open to the employer company during the proceedings before the Labour Court upon the impugned reference.
We are concerned with a limited point and we need go no further.
In the result the appeal is allowed, the judgment and order dated 18 January, 1985 of the Division Bench of the High Court and the judgment and order dated 5 October, 1982 of the learned Single Judge of the High Court are set aside and the writ petition filed by the employer company is dis missed.
The Labour Court will now proceed to dispose of the reference expeditiously.
The appellant is entitled to his costs of this appeal and of the entire proceedings before the High Court.
P.S.S. Appeal allowed.
| The appellant, a working journalist who was appointed on November, 1961 as a Staff Correspondent in the Calcutta Office of the respondent company while working as such at Calcutta, applied on 29 April, 1975 to the Government of West Bengal under sub section
(1) of section 17 of the Working Jour nalists and Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955 for recovery of the unpaid portion of his wages relating to the period April 1968 to February 1973.
While the conciliation proceedings were on, he was promoted and transferred to Pune on 16 February, 1976.
The Conciliation Officer reported the fail ure of the proceedings before him on 16 November, 1976 and the Government of West Bengal made a reference under sub section
(2) of section 17 of the Act to the First Labour Court, West Bengal on 23 August, 1977 for the adjudication of the dis pute between the parties.
The preliminary objection raised by the respondent company that the Government of West Bengal was not competent to make the reference was rejected by the Labour Court.
The respondent company 's writ petition chal lenging 'the order of the Labour Court was allowed by a Single Judge whose decision was affirmed in appeal by the Division Bench of the High Court.
Allowing the appeal by special leave and dismissing the writ petition of the respondent company, this Court.
HELD: (i) Sub section
(1) ors.
17 of the Act requires that an application by the newspaper employee complaining that an amount due to him has remained unpaid by the employer should be made to the State Government.
Which is the State Govern ment to which such application lies is 476 indicated by r: 36 of the Rules made under the Act and that rule provides that an application under section 17 of the Act shall be made to the Government of the State where the central office or the branch office of the newspaper estab lishment in which the newspaper employee is employed is situated.
It is the location of the central office or the branch office in which the newspaper employee is employed which determines which State Government it will be.
The rule works in favour of the convenience of the newspaper employ ee.
[478C E] (ii) Sub section
(2) of section 17 provides that if any question arises as to the amount due under the Act to a newspaper employee from his employer, the State Government may refer the question to any Labour Court, constituted by it under the or under any corresponding law relating to investigation and settlement of industrial disputes in force in the State.
If a question arises as to the amount due, it is a question which arises on the appli cation made by the newspaper employee, and the application having been made before the appropriate State Government, it is that State Government which will call for an adjudication of the dispute by referring the question to a Labour Court.
The State Government before whom the application for recov ery is made is the.
State Government which will refer the question as to the amount due to a Labour Court.
[478F G; 479C D] In this case, the appellant was employed at the Calcutta branch of the respondent company.
He made the application to the Labour Department of the Government of West Bengal for recovery of the unpaid portion of his wages.
When the ques tion arose as to the amount due to the appellant, the Gov ernment of West Bengal made the reference for adjudication to the First Labour Court, West Bengal.
Upon the construc tion of sub section
(2) of section 17 as indicated at (ii) above, it is beyond dispute that the Government of West Bengal is competent to make the reference.
The High Court erred in holding that the reference was without jurisdiction and that it was the State of Maharashtra which was competent to make the reference.
[479E G]
|
Appeal (Civil Appeal No. 28 of 1950) from a judgment and decree of the High Court of Judicature at Bombay dated 19th March, 1945, in Appeals Nos.
68 and 190 of 1942.
H.D. Banaji (V. R. Desai, with him) for the appellants.
M.C. Setalvad, Attorney General for India (G. N. Joshi, with him) for the respondent.
February 5.
The judgment of the Court was deliv ered by MAHAJAN J.
This is an appeal from a judgment of the High Court of Judicature at.
Bombay modifying the decree of the trial court and decreeing partially the plaintiff 's suit.
The appellants are the legal representatives of the original plaintiff Haji Ali Mohamed Haji Cassum.
The State of Bombay is the respondent.
The facts giving rise to this Controversy, briefly stated, are as follows ; 35 268 Village Dahisar originally formed part of the Malad Estate comprising in all eight villages.
The said estate was conveyed by the East India Company to two Dady brothers for valuable consideration by a deed of indenture dated the 25th January, 1819.
By that conveyance all the lands in the eight villages were conveyed absolutely to the said purchas ers and it was covenanted by the Company that the purchas ers, their heirs and assigns shall peaceably and quietly enjoy the said villages and receive and take the rents and profits thereof without any hindrance or interruption from the said Company.
By a sale deed dated the 13th December, 1900, Haji Cassum, father of the plaintiff, purchased the village of Dahisar from its proprietors for a price of Rs. 1,30,000 and after his death the plaintiff became the pro prietor thereof and as such received rents and assessment from the tenants and holders of the lands in the village according to the rights prevailing under the survey settle ment which had taken place in the village about the year 1864 65.
In the year 1879 the Bombay Land Revenue Code was enact ed.
Section 48 of the Code is in these terms : "48.
(1) The land revenue leviable on any land under the provisions of this Act shall be assessed, or shall be deemed to have been assessed, as the case may be, with reference to the use of the land (a) for the purpose of agriculture, (b) for the purpose of building, and (c) for a purpose other than agriculture or building.
(2) Where land assessed for use for any purpose is used for any other purpose, the assessment fixed under the provi sions of this Act upon such land shall, notwithstanding that the term for which such assessment may have been fixed has not expired, be liable to be altered and fixed at a differ ent rate by such authority and subject to such rules as the Provincial Government may prescribe in this behalf . . . " 269 After the Act came into force, the Government drafted rules under the provisions of section 214 for promulgation.
The inamdars represented to the Government that the rules should be so framed as not to prejudice their rights under the conveyances executed by the Company in their favour.
The draft rules were promulgated by a notification issued on the 5th June, 1907.
On that date, the Government adopted a resolution ordering that the rules be promulgated and also giving an assurance to the inamdars to the following effect : "Government will, however, be prepared to amend or abrogate these rules if they are found to be detrimental in any material respects to the interests of the inamdars.
" Rule 92 is one of the rules promulgated under the provisions of the Act and it runs thus : "When land assessed for purposes of agriculture only is subsequently used for any purpose unconnected with agricul ture the assessment upon the land so used shall, unless otherwise directed by Government, be altered under sub section (2) of section 48 by the collector in accordance with rules 81 to 87 inclusive." On the 25th July, 1923, the plaintiff requested the Commissioner of Bombay, Suburban District, for a revision of the survey of Dahisar village.
He executed an agreement under the provisions of section 216 of the Bombay Land Revenue Code and made a formal application in that behalf as required by the Code and the rules made thereunder.
The Commissioner by his letter dated the 14th March, 1925, authorised the extension of the provisions of chapters 8 and 9 of the Land Revenue Code to the village in question.
The plaintiff also deposited the necessary expenses required for the revision of the survey.
The revision was made by the Superintendent of the Land Records who submitted his report to the Commissioner on the 15th December, 1926.
This report was sanctioned by Government.
The order sanctioning the revised survey was communicated to the plaintiff on the 23rd 270 December, 1927.
Under the revised survey the assessment of Rs. 4,217 on the village lands was increased to Rs. 6,057 3 2, and the plaintiff from that date started recover ing the increased assessment from the tenants of the lands in the village.
At the time of the revision of the survey it was found that nine plots of land comprised in eleven field numbers which were formerly agricultural had been built upon and these were being used for non agricultural purposes.
The survey officer formed them into a separate group and showed them as kharaba and no assessment, either agricultural or non agricultural, was levied on these nine plots and the plaintiff could not therefore recover any assessment in respect of these plots after 1926.
On the BOth April, 1934, he requested the Collector to assess non agricultural assessment on these plots.
This request was refused by the Collector on the 17th July, 1935, in these terms: "With reference to your letter dated 30 4 1934, I have the honour to state that I regret your request cannot be granted.
" It has to be observed that this refusal was in contra vention of the provisions of rule 92 which imposes on the Collector a duty to make alteration in the assessment, unless he has been directed to the contrary by Government.
It was not denied that by the 17th July, 1935, no such direction had been given to the Collector by Government.
If the Collector had done his duty as enjoined by rule 92, this lengthy and unnecessary litigation might well have been avoided.
Against the order of the Collector the plaintiff ap pealed to the Commissioner.
In his appeal he pointed out that certain additional lands in the village had been con verted to non agricultural uses subsequent to the revision of the survey in 1926.
The Commissioner declined to inter fere.
This information was conveyed by the Collector to the counsel for the plaintiff on the 22nd May, 1937.
Against the Commissioner 's decision, the plaintiff appealed to the Governor in Council and 271 on the 20th December, 1937, he received a copy of the fol lowing communication from Government to the Commissioner : "The undersigned presents compliments to the Commis sioner, Northern Division, and with reference to his letter, No. L.N.D. 3124, dated 20th April, 1936, on the subject noted above, is directed to invite his attention, to the orders issued in Government Resolution, No. s235/3a, dated 8th March, 1937, and to state that Government confirm the action of the Collector, Bombay Suburban District, in refusing the Khot 's request for the levy of nonagricultural assessment in the village of Dahisar.
By order of the Governor in Council, for Under Secretary to the Government of Bombay.
" In order to find out whether there was any resolution of the Government as mentioned in the above communication, during the pendency of the suit the plaintiff issued the following interrogatory to the Government of the State of Bombay : "When was the decision, not to assess the lands men tioned in Schedule II of the plaint and other lands under rule 92, referred to in para.
8 of their written statement arrived at by the Government ? Produce a copy of the said decision which may have been embodied in a Government resolution along with the opinion of the Government officers with which Government may have concurred.
" The answer given on behalf of the State Government to this question was as follows : "(8) Government Memorandum, Revenue Department, No. 5235 B/33, dated the 8th March, 1937, confirmed the Collec tor 's action in refusing the proprietor 's request for the levy of non agricultural assessment. ' ' This answer indicates that the Government acting under rule 92, neither adopted any resolution nor issued any notification giving any directions to the Collector contrary to the provisions contained in that 272 rule.
All that it did was to confirm the Collector 's order rejecting the request of the plaintiff for making the as sessment of non agricultural lands in the village.
During the interval between 1927 37 a large number of plots of land mentioned in schedule II were put to non agricultural uses by the tenants in possession of them and a number of buildings were constructed thereupon.
The plain tiff having failed in persuading the Government to make an assessment under rule 92 of such lands, after service of notice under section 80 of the Code of Civil Procedure, instituted the present suit, (a) for a declaration that he was entitled to have nonagricultural assessment made on all lands in the village of Dahisar which were used or which may thereafter be brought into use for purposes other than agricultural, and (b)for an order that the Collector of Bombay, Suburban District, be directed to determine the amount of non agricultural assessment on the lands mentioned in schedules I and II of the plaint and to levy the same under clause 2 of rule 96 and pay it to the plaintiff, or in the alternative, to direct the defendant to issue a commission to the plaintiff under section 88 of the Land Revenue Code.
Schedule I gave details of the nine plots of land that had been converted into non agricultural use before the survey of 1926, while schedule II gave details of those lands which since 1926 up to the date of the suit had been converted to such use.
The plaintiff also claimed damages to the extent of Rs. 120 as compensation for loss of agricultural assessment for six years in respect of lands mentioned in schedule I and he claimed similar damages to the extent of Rs. 300 for loss of non agricultural assess ment in respect of the other lands.
He also claimed future damages and costs.
The suit was resisted by the State Government on a number of grounds.
It was contended that it was barred under section 4 (c) of the Revenue Jurisdiction Act and under article 14 of the Indian Limitation Act.
On the merits it was pleaded that the action of the survey officer and the Collector in refusing to levy non agricultural assessment on lands contained in the 273 two schedules was lawful and proper and that the civil court could not question the discretion of the Government in such matters.
The trial Judge negatived all the technical objections raised by the defendant and on the merits held that the Collector 's action in refusing to levy nonagricultural assessment on the lands in question was wrongful.
He, there fore, granted the declaration prayed for.
He, however, refused to give further relief to the plaintiff and disal lowed the prayer for a direction for levying non agricultur al assessment on the lands given in the two schedules and for paying it to the plaintiff.
He observed that the Govern ment would be well advised if it levied such assessment and paid it to the plaintiff.
Two appeals were taken to the High Court against the decree of the trial Judge.
That Court modified this decree and granted a declaration to the plaintiff that he was entitled to receive non agricultural assessment on all lands which are and which may hereafter be used for non agricul tural purposes.
It ordered the defendant to levy such altered assessment on the lands mentioned in schedule I and decreed consequential damages to the plaintiff in respect to these lands.
As regards the lands in schedule II, the plain tiff 's suit for a direction to assess and levy non agricul tural assessment on them was dismissed.
The court drew a distinction between lands that had been converted to non agricultural use before the survey of 1926 and those which had since then been converted to such use.
As regards the former, it was held that the survey officer had erroneously declined to make non agricultural assessment on those lands and his action was ultra vires.
Relief was given to the plaintiff regarding those lands as prayed for.
As regards the latter, it was held that it was within the discretion of the Government to order an alteration of the assessment on such lands and this discretion could not be questioned in a court of law.
The plaintiff being dissatisfied with this part of the decision made an application for leave to appeal to.
the Privy Council on the 15th 274 September, 1945.
During the pendency of the application the plaintiff died and his heirs and executors were implead ed as his legal representatives.
A certificate for leave to appeal to the Privy Council was granted on the th February, 1947, and the appeal preferred under the certificate is now before us for decision.
There is no controversy in this appeal as regards the reliefs that have been given to the plaintiff by the High Court.
The appeal concerns the fur ther relief refused to the plaintiff in respect to the lands mentioned in schedule II.
It was contended on behalf of the appellant that under the terms of the conveyance dated 25th January, 1819, and of the covenants contained therein it was not open to the Government or the Collector to refuse the alteration of the assessment claimed by the plaintiff and that the Government could not give any direction under rule 92 which would be contrary to these covenants and assur ances.
It was said that the Government was bound to use its power to levy assessment as trustee for the transferee and that the exercise of this power could not be arbitrarily refused by it.
It was urged that the Government Resolution dated 5th June, 1907, clearly indicated that the rules framed under the Land Revenue Code were not intended to affect adversely the owners of alienated lands and the Collector was bound to make an assessment as required by the plaintiff.
Lastly, it was argued that as a matter of fact Government never exercised its power under rule 92 and never gave a direction to the Collector to a contrary effect and that the mere affirmation of the erroneous order of the Collector by Government did not amount to a direction con templated by the provisions of rule 92.
Having considered this case in all its aspects, we have reached the decision that the High Court 's decision have in so far as it refused relief to the plaintiff in respect to the lands mentioned in schedule II should be reversed.
Rule 92 cited in the earlier part of this judgment in imper ative terms directs the Collector to alter the assessment in case agricultural lands are Converted to non agricultural use.
The Collector has 275 no option in the matter and as soon as an application is made to him he should proceed to make an assessment and levy it on the non agricultural lands.
When the Collector de clined to accede to the request of the plaintiff he acted in contravention of the clear provisions of the rule, because admittedly at that time no "directions to the contrary" had been given to him by the Government.
There was no resolu tion of the Government in existence and no notification had been issued under the provisions of rule 92 directing the Collector not to make an alteration in the assessment when required to do so.
The Commissioner, in dismissing the plaintiff 's appeal, also contravened the provisions of rule 92.
When the matter went up in appeal to the Governor in Council, no decision was taken under the provisions of rule 92.
The High Court assumed that the confirmation of the action of the Collector by the Government amounted to a direction by the Government to the contrary in respect of the lands in question.
We are unable to agree with this conclusion.
When Gov ernment has been given the power to give directions to the Collector not to act in accordance with the imperative provisions of a rule which enjoin upon him to make the altered assessment, that power has to be exercised in clear and unambiguous terms as it affects civil rights of the persons concerned and the decision that the power has been exercised should be notified in the usual manner in which such decisions are made known to the public.
It was conceded by Mr. Joshi that no such decision was taken by Government and no direction was issued by Government under rule 92 Dismissal by the Government of the plaintiff 's appeal and affirmation by it of an erroneous order of the Collector could not be held to amount to action under the provisions of rule 92.
In these circumstances, the plaintiff was clearly entitled to further relief in respect to lands mentioned in schedule II and a direction should have been issued to the State Government for making altered assessment on non agricultural lands and levy it on them and pay it to the plaintiff.
36 276 Mr. Joshi contended that the true effect of the provi sions contained in section 48 (2) and rule 92 was that the Government was not bound to levy altered assessment on lands converted to non agricultural use, that the section merely provided that the persons in possession of land were liable for such assessment but it did not say that it was obligato ry on the Government to make it and that the court had no jurisdiction to interfere with the discretion of the Govern ment in the matter.
We think that when a liability is imposed by a statute, that liability cannot be defeated by the exercise of any discretion by Government or by making rules which may negative that liability, but it is not necessary in this case to finally decide the point as the appeal stands decided otherwise.
It is also unnecessary to express an opinion as to the precise scope of the power conferred on Government by the language of rule 92.
The plaintiff 's learned counsel very properly did not press his appeal in respect to the claim of damages concern ing lands mentioned in schedule II.
Plaintiff 's suit to that extent fails.
For the reasons given above the appeal is allowed and the plaintiff 's suit is decreed with costs except in regard to the claim for damages in respect to the lands mentioned in schedule II.
The defendant is directed to make an assess ment on lands mentioned in schedule II in the same way as in respect of the lands mentioned in schedule I and levy the same and pay it to the plaintiff.
Appeal allowed.
| Rule 92 of the rules issued under the Bombay Land Reve nue Code, 1879, provided that when land assessed for pur poses of agriculture only is subsequently used for any purpose unconnected with agriculture, the assessment upon the land so used shall unless otherwise directed by the Government be altered under section 48 (2) by the Collector in accordance with rr.
81 to 87: Held, that as the rule imposes an imperative duty on the Collector to alter the assessment, the power which has been given to the government to give directions to the Collector not to act in accordance with the imperative provisions of the rule has to be exercised in clear and unambiguous terms as it affects civil rights of the persons concerned and the decision that the power has been exercised must be notified in the usual manner.
Where the Government did not pass any resolution or issue any directions to that effect but merely confirmed on appeal an order of the Collector rejecting an application to assess nonagricultural assessment on agricultural lands which had been used for building purposes: Held, that the confirmation of the Collector 's order by the Government did not amount to a direction to act otherwise within the mean ing of r. 92 and the applicant was entitled to have the assessment on the lands altered under section 48(2) in accordance with rr.
81 to 87 as laid down in r. 92.
|
Civil Appeal No. 533 of 1979.
From the judgment and order dated 2nd January, 1979 of the High Court of Kerala in original Petition No. 4935 of 1974 D. and Special Leave Petition No. 81 OF 1971.
From the judgment and order dated the 27th July, 1971 of the Kerala High Court in O.P. No. 4706 of 1969.
T.S. Krishnamoorthy Iyer, C.J. Balakrishnan, K Prabhakaran, P. Parameswaran and A.S. Nambiar for the appellant in C.A. No. 533/79.
P. Govindan Nair, Mrs. Baby Krishnan, K.R. Nambiar and K.M.K Nair for the respondent in C.A. No. 533/79.
S.B. Sahariya and V.B. Sahariya for the petitioner in S.L.P. No. 81/72.
The Judgment of the Court was delivered by SEN, J.
This appeal.
by special leave, is directed against a judgment of the Kerala High Court by which the High Court dismissed the writ petition of the appellants who are manufacturers of medicinal and toilet preparations containing alcohol and upholding the constitutional validity of sections 12A, 12B, 14(e) and (f) and 68A of the Abkari Act, 1077 (1 of 1077) (hereinafter called 'the Act '), introduced by the Abkari (Amendment) Act, 1967 (10 of 1967), and rr. 13 and 16 of the Kerala Rectified Spirit Rules, 1972.
The main question in the appeal is as to the legislative competence of the State to enact a law relating to medicinal and toilet preparations containing alcohol under Entry 8, List II of the Seventh Schedule to the Constitution.
The appellants, by virtue of a licence in Form 25 granted under the and a licence in Form Ll granted under the (hereinafter referred to as 'the Central Act ') are entitled to manufacture the drugs specified therein.
They filed a writ petition in the High Court complaining that they were entitled to the supply of alcohol free of duty for the manufacture of their medicinal and toilet 525 preparations under r. 21 of the Medicinal and Toilet Preparations A (Excise Duties) Rules, 1956 (hereinafter referred to as 'the Central Rules '), and r. 8 of the Kerala Rectified Spirit Rules, 1972, and challenged the validity of the impugned provisions mainly on the ground that the State Legislature has no power to enact the law relating to medicinal and toilet preparations as the topic of legislation is within the exclusive domain of Parliament under Entry 84, List I of the Seventh Schedule to the Constitution.
The High Court held that there was no conflict between the impugned provisions and the Central law as they dealt with different subjects.
The impugned provisions, as introduced by the Abkari Amendment) Act, 1967, in so far as they are relevant, are as follows: Section 12A reads: 12A.
No preparation to which liquor or intoxicating drug is added during the process of its manufacture or in which alcohol is self generated during such process shall be manufactured in excess of the quantity specified by the Commissioner: Provided that in specifying the quantity of a medicinal preparation, the Commissioner shall have due regard to the total requirement of that preparation for consumption or use in the State.
Section 12B provides: 12B. (1) No person shall utilise liquor or intoxicating drug in the manufacture of any preparation, in excess of the quantity specified by the Commissioner and except under and in accordance with the terms and conditions of a licence granted by the Commissioner in that behalf: G Provided that where such preparation is a medicinal preparation, Commissioner shall, in specifying the quantity of liquor or intoxicating drug have due regard to the total requirement of such medicinal preparation for consumption or use in the State.
526 Section 14 provides: 14.
The Commissioner may, with the previous approval of the Government . . . (d) prescribe the mode of supervision that may be necessary in a . manufactory where preparations containing liquor or intoxicating drugs are manufactured, to ensure the proper collection of duties, taxes and other dues payable under this Act or the proper utilisation of liquor or intoxicating drugs; (e) prescribe the size and nature of the establishment necessary for such supervision and the cost of the establishment and other incidental charges in connection with such supervision to be realised from the licensees: and (f) prescribe the allowance for wastage of alcohol that may occur in (i) . . (ii) the process of manufacture of any preparation containing alcohol; and (iii) . .
Section 68A provides that the Government shall appoint an Expert Committee consisting of the Drugs Controller, the Chemical Examiner to the Government, two representatives each one of them shall be a non official, of the Allopathic, Indigenous and Homoeopathic systems of medicine appointed by the Government, and an officer of the Excise Department not below the rank of Deputy Commissioner; and the Committee shall advise the Commissioner (a) as to whether a medicinal preparation is a bona fide medical preparation or not; and (b) as to the total requirements of medicinal preparations containing liquor or intoxicating drugs or in which alcohol is self generated during the process of their manufacture, for the whole of the State during one year.
Before this Court the constitutional validity of the impugned provisions was mainly challenged on these grounds, namely: (I) The State Legislature had no legislative competence to enact the impugned 527 provisions because the field was occupied by the provisions of the A (the Central Act) and the Medicinal and Toilet Preparations (Excise Duties ) Rules, 1956 (the Central Rules), and alternatively, the impugned provisions are violative of the fundamental right guaranteed in article 19(1) (g) of the Constitution.
(2) The Parliament having made a declaration in section 2 of the Industries (Development and Regulation) Act, 1951, declaring "Drugs and Pharmaceuticals" to be a scheduled industry, being item 22 of the First Schedule thereof, the power of the State Legislature to make a law in respect of medicinal and toilet preparations containing alcohol is taken away.
(3) The provisions made in section 14(e) of the Act for the collection of supervisory charges was clearly invalid in as much as (a) they are in conflict with r. 45 of the Central Rules, and (b) they could not be sustained as a fee as there was no quid pro quo.
(4) Rule 13 of the Kerala Rectified Spirit Rules, 1972, providing for the levy of excise duty as excess wastage of alcohol in the manufacture of medicinal and toilet preparations cannot be supported in terms of the charging provision contained in section 17 of the Act.
We cannot accept any of these contentions With regard to the first ground, it was submitted that the conferral of power on the Commissioner under section 12A of the Act to restrict the quantity of medicinal and toilet preparations to which liquor or intoxicating drug is added during the process of its manufacture with the requirement that the Commissioner shall, in specifying such quantity, have due regard to the total requirements of consumption or use in the State, the prohibition contained in section 12B of the Act that no person shall utilise liquor or intoxicating drug in the manufacture of any preparation, in excess of the quantity so specified by the Commissioner and the condition that no person shall manufacture any such preparations except under and in accordance with the terms and conditions of a licence granted by him, is clearly contrary to the general scheme of the Central law and in particular, rr. 18 and 21 of the Central Rules.
In this respect, it was said that under r. 18 of the Central Rules, rectified spirit ordinarily had to be supplied to a manufacturer from a distillery or a spirit warehouse of the State in which the manufactory is situate, and the manufacturer was not precluded from obtaining his requirements of rectified spirit from sources outside the State.
Under r. 21, rectified spirit had to be issued without previous payment of duty for the manufacture of medicinal and toilet preparations containing alcohol subject to the condition that 528 manufacturer enters into a bond in Form Bl with sufficient security as laid down in r. 96, towards due payment of duty and observance of the rules.
It is submitted that the State Legislature has no power to make any such law imposing restrictions on a person carrying on the business of manufacture and sale of medicinal and toilet preparations containing alcohol in as much as the matter relates to an occupied field.
There is no merit in these contentions.
The enactment of the by Parliament under Entry 84, List I of the Seventh Schedule of the Constitution, or the framing of the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956 by the Central Government in exercise of their rule making power under section 19 of the Act, for the purpose of levying duties of excise on medicinal and toilet preparations containing alcohol etc., do not prevent the State Legislature from making a law under Entry 8, List II of the Seventh Schedule to the Constitution with respect to 'intoxicating liquors ', or a law under Entry 51, List II for levying excise duties on alcoholic liquor for human consumption.
In order to appreciate the contention regarding the applicability of the doctrine of 'occupied field ', it is necessary to examine the scheme of both the enactments.
The scheme of the Act, as reflected in the preamble, is that it is an Act "to consolidate and amend the law relating to the import, export, transport, manufacture, sale and possession of intoxicating liquor and all intoxicating drugs in the State of Kerala".
It is not necessary to set out all the provisions of the Act in question, but reference may be made to the definitions of expressions 'spirit ', 'liquor ', 'country liquor ', 'foreign liquor and 'intoxicating liquor ' defined in sections 3(9), (10), (12), (13) and (14).
The expression 'liquor ' as defined in section 3(10) reads: 3(10). 'Liquor ' includes spirits of wine, methylated spirits, spirits, wine, toddy, beer, and all liquid consisting of or containing alcohol.
Section 12(1) provides: 12(1).
No liquor or intoxicating drug shall be manufactured. except under the authority and subject to the terms and conditions of licence granted by the Commissioner in that behalf, or under the provisions of section 21, 529 Section 15 provides: 15(1).
No liquor or intoxicating drug shall be sold with out a licence from the Commissioner, provided that a person having the right to the toddy drawn from any tree may sell the same without a licence to a person licensed to manufacture or sell toddy under this Act.
B Section 17 provides: 17.
A duty of excise or luxury tax or both shall, if the Government so direct, be levied on all liquor and intoxicating drugs: . . . (f) issued from a distillery, brewery, winery or other manufactory or warehouse licensed or established under section 21 or section 14; or The Act is clearly relatable to the State 's power to make a law on the topics of legislation covered by Entries 8 and 51, List II of the Seventh Schedule to the Constitution which read as under: 8.
Intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors.
Duties of excise on the following goods manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India: (a) alcoholic liquors for human consumption; (b) opium, Indian hemp and other narcotic drugs and narcotics; but not including medicinal and toilet preparations containing alcohol or any substance included in sub paragraph (b) of this entry.
The legislative history of the Central Act is well known.
Under Entry 40, List II of the Seventh Schedule to the Government of 530 India Act, 1935, medicinal and toilet preparations containing alcohol etc., were subjected to Provincial excise duties.
Under the Constitution, the entry relating to the excise duty on medicinal and toilet preparations containing alcohol was transferred to the Union List.
In the light of experience gained, there was necessity to achieve a synthesis from a vast body of existing rules and regulations in force in the States having regard to the sole object of the measure, namely, to bring about uniform treatment in excise matters.
This was a highly complicated subject because, firstly, the excise duty was to be collected and retained by the State Governments, and, secondly, a certain amount of flexibility in statutory operations was necessary if spurious medicines were not to defeat the policy of prohibition which is one of the Directive Principles of State Policy under article 47 of the Constitution.
Some of the provisions of the Central Act are so designed as to lay down only broad principles.
Matters of detail, such as classification of the preparations as capable or not capable of being used as ordinary alcoholic beverages, regulation for the purpose of the Act, of production, storage and movement, were left to be regulated by rules.
Parliament accordingly enacted the , to provide for the levy and collection of duties of excise on medicinal and toilet preparations containing alcohol.
The Act is relatable to Entry 84, List I of the Seventh Schedule to the Constitution, which reads: 84.
Duties of excise on tobacco and other goods manufactured or produced in India except (a) alcoholic liquors for human consumption; (b) opium, Indian hemp and other narcotic drugs and narcotics, but including medicinal and toilet preparations containing alcohol or any substance included in sub paragraph (b) of this entry.
The scheme of the Central Act is to provide for the levy and collection of duties of excise on medicinal and toilet preparations containing alcohol etc.
The Act is entitled as "An Act to provide for the levy and collection of duties of excise on medicinal and toilet preparations containing alcohol, opium.
Indian hemp or other narcotic drug or narcotic".
Section 2 is the definition Section and 531 the expression 'dutiable goods ' as defined in section 2(c) takes in medicinal and toilet preparations specified in the Schedule.
The expression 'medicinal preparation ' is defined in section 2(g) as: 2(g). 'medicinal preparation ' includes all drugs which are a remedy or prescription prepared for internal or external use of human beings or animals and all substances intended to be used for or in the treatment, mitigation or prevention of disease in human beings or animals; It is not necessary to refer to the definition of toilet ' preparation in section 2(k) as it is not relevant for the present purpose.
Section 3 is the charging section which levies duties of excise on all 'dutiable goods ' manufactured in India and also lays down the mode of collection of the said duties.
Section 3 (1) reads: 3(1).
There shall be levied duties of excise, at the rates specified in the Schedule, on all dutiable goods manufactured in India.
Section 6 prohibits any person from engaging in the production or manufacture of any dutiable goods etc., except under the authority and in accordance with the terms and conditions of the licence granted under the Central Act.
Section 19 (1) empowers the Central Government to make rules to carry out the purposes of the Act, and sub section
(2) thereof specifies the various matters in respect of which such rules may be made.
Section 21 provides for the repeal and savings.
The Schedule to the Act contains a description of 'dutiable goods ' and the rates of duty payable thereon.
In exercise of the powers conferred by section 19 (1) of the Central Act, the central Government framed the Central Rules which practically deal with all the facets of manufacture and production of medicinal and toilet preparations, as required in cls.
(i) to (xxi) of sub section
(2) thereof, with the ultimate object of providing a machinery for collection of duty on the said preparations.
Chapter IV of the Central Rules deals with 'Manufacture '.
Rule 18 in Chapter IV provides that rectified spirit shall ordinarily be supplied to a manufacturer from a distillery.
Of the State in which the manufactory is situated.
It further provides that the manufacturer is not precluded from obtaining his requirements of rectified spirit from sources outside the State.
Rule 21 provides that rectified spirit H shall be issued without previous payment of duty to a manufacturer of medicinal and toilet preparations containing alcohol.
Rule 33 532 provides for taking of samples of the manufactured product for analysis for determining the strength of alcohol and medicaments.
Rule 38 provides for wastage in manufacture.
Rule 45(1) enjoins that the officer in charge shall exercise such supervision as is required to ensure that alcohol issued for a certain preparation is added to the materials which go to make that preparation and that no portion of such alcohol is diverted to other purposes.
These rules are intended and meant to carry out the main object of the Central Act, i.e. to levy and collect duties of excise on medicinal and toilet preparations containing alcohol etc.
It is the charging section which gives the true index to the a real character of a tax.
The nature of the machinery by which the tax is to be assessed is not of assistance, except in so far as it may throw light on the general character of the tax.
The charging section in section 3 of the Central Act clearly shows that it does not seek to levy a duty of excise on alcoholic liquor for human consumption falling within Entry 51, List II of the Seventh Schedule, but to levy a duty of excise on medicinal and toilet preparations containing alcohol etc.
The topic of legislation under Entry 84, List I of the Seventh Schedule is not 'duties of excise on alcoholic liquors for human consumption ' but 'duties of excise on medicinal and toilet preparations containing alcohol etc '.
There can be little doubt that the Central Act must, in pith and substance, be attributed to Entry 84, List I.
In determining whether an enactment is a legislation 'with respect to ' a given power, what is relevant is not the consequences of the enactment on the subject matter or whether it affects it, but whether, in its pith and substance, it is a law upon the subject matter in question.
The Central and the State Legislations operate on two different and distinct fields.
The Central Rules, to some extent, trench upon the field reserved to the State Legislature, but that is merely incidental to the main purpose, that is, to levy duties of excise on medicinal and toilet preparations containing alcohol.
Similarly, some of the impugned provisions may be almost similar to some of the provisions of the Central Rules, but that that does not imply that the State Legislature had no competence to enact the provisions.
It is sufficient to say upon the first ground that the impugned legislation is confined to 'intoxicating liquor ', that is, to ensure proper utilisation of rectified spirit in the manufacture of medicinal and toilet preparations and, therefore, within the powers granted 533 to the State Legislature under Entry 8, List II.
It further seeks to regulate the manufacture of bona fide medicinal preparations and prevent misuse of rectified spirit in the manufacture of spurious medicinal and toilet preparations containing alcohol capable of being used as ordinary alcoholic beverages.
It was suggested that the provisions are identical with the provisions contained in the Central Rules and, in particular, to rule 45(1) and, therefore, the legislation is in the occupied field.
The answer is that the enumeration of 'intoxicating liquor ' in Entry 8, List II, confers exclusive power to the State to legislate in respect of medicinal and toilet preparations containing alcohol.
In Prafulla Kumar Mukherjee and Ors.
vs Bank of Commerce Ltd., Khulna(1) the Privy Council in dealing with the question or distribution of powers laid down the tests that in order to see whether an Act is in respect of a particular subject, one must look to "its true nature and character"; "its pith and substance".
Lord Porter, in delivering the judgment of the Judicial Committee, observed: "As Sir Maurice Gwyer, C.J. said in the Subramanyam Chettiar Case: ' It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely inter twined that blind observance to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the legislature enacting them may appear to have legislated in a forbidden sphere.
Hence the rule which has been evolved by the Judicial Committee, whereby the impugned statute is examined to ascertain its 'pith and substance ', or 'its true nature and character ', for the purpose of determining whether it is legislation with respect to matters in this list or in that" .
The doctrine of 'pith and substance ' evolved by the Privy Council has been followed by this Court throughout.
Thus, in State of Bombay vs F. N. Balsara(2) Fazl Ali, J., followed the decision of the Judicial Committee, reiterated: 534 "If the Act, when so viewed, substantially falls within the powers expressly conferred upon the Legislature which enacted it, then it cannot be held to be invalid, merely because it incidentally encroaches on matters which have been assigned to another Legislature.
" In such matters of seeming conflict or encroachment of jurisdictions, what is more important is the true nature and character of the legislation.
A necessary corollary of the doctrine of pith and substance is that once it is found that in pith and substance the impugned Act is a law on a permitted field, any incidental encroachment on a forbidden field does not affect the competence of the legislature to enact the law.
The main thrust of the argument is the decision of this Court in Hyderabad Chemical and Pharmaceutical Works Ltd. vs State of n Andhra Pradesh and Ors(1) which, we are afraid, is clearly distinguishable.
There the Court was concerned with the question whether r. 36 of the Medical Preparations and Spirituous Rules, 1345 Fasli, framed under the Hyderabad Abkari Act, 136 Fasli which provided that "the expenses of the establishment for the supervision of the work shall be borne by the pharmaceutical laboratory (licensee) as per the decision of the Commissioner of Excise", was still enforceable having regard to section 21 of the Central Act and r. 143 of the Central Rules.
It was held that the effect of section 21 of the Central Act was that so far as the Hyderabad Act applied to the use of alcohol in the manufacture of medicinal and toilet preparations, the Act must be deemed to have been repealed and, therefore, r. 36 could not survive.
In that case, the Court was concerned with the levy of supervisory charge at the stage of manufacture of medicinal and toilet preparations, and not with the levy of supervisory charges at the stage of the supply and utilisation of rectified spirit in the manufacture of medicinal and toilet preparations.
This is clear from an observation at p. 380 of the Report to the effect: The supervisory staff which has to be paid for under r. 36 therefore is meant for the supervision of the manufacture of medicinal preparations and it is for that purpose only that expenses have to borne by the laboratory con 535 cerned.
The purpose of the rule therefore is clearly covered by the Act and the Rules framed thereunder and it cannot survive the Act and the rules in view of section 21 of the Act and r 143 of the 1956 Rules, and the proviso to s 21 cannot be availed of by the State.
While repelling the contention that r. 36 could still be good law as it was meant to carry out the general law relating to alcohol and intoxicating drugs, the Court pointed out that the Central Rules make no provision for recovery of supervisory charges, the intention being that the duty under the Act would cover all expenses for enforcing it and observed (1) We are of opinion that there is no force hl this contention either.
In the first place, as we have already indicated, the main object of the supervisory staff mentioned in r. 36 is to supervise the manufacture of medicinal preparations.
In that connection the supervisory staff will certainly see that the alcohol supplied is used for the purpose for which it is supplied and it is not used in any other manner.
Rule 36 is only concerned with seeing that the manufacture of medicinal preparations is made properly and is done under the supervision of the establishment attached to each laboratory; and it is only incidentally that in that connection the establishment is also to see that the alcohol supplied is not used otherwise than for the purpose of manufacture.
Further, the Central Act, which the Court was considering, was a fiscal measure.
The whole object and purpose of that Act is to levy a duty of excise on medicinal and toilet preparations containing alcohol.
The Central Rules have mainly been framed to achieve this object.
Rule 45(1) on which reliance was placed, reads: 45(1).
The officer in charge shall exercise such supervision as is required to ensure that alcohol issued for a certain preparation is added to the materials which go to make that preparation and that no portion of such alcohol is diverted to other purposes.
The provision is merely incidental to the main purpose, i.e., collection of excise duty on medicinal and toilet preparations containing alcohol.
536 There can be no doubt that the impugned Act is relatable to Entry 8, List II of the Seventh Schedule.
In Balsara 's case(1) the Court held that the expression 'liquor ' in Entry 31, List II of the Seventh Schedule to the Government of India Act, 1935, took within its sweep all liquids containing alcohol.
In dealing with the question, Fazal Ali, J. Observed: The framers of the Government of India Act, 1935, could not have been entirely ignorant of the accepted sense in which the word 'liquor ' has been used in the various excise Acts of this country and, accordingly I consider the appropriate conclusion to be that the word 'liquor ' covers not only those alcoholic liquids which are generally used for beverage purposes and produce intoxication, but also all liquids containing alcohol.
It may be that the latter meaning is not the meaning which is attributed to the word 'liquor ' in common parlance especially when that word is prefixed by the qualifying word 'intoxicating ', but in my opinion having regard to the numerous statutory definitions of that word, such a meaning could not have been intended to be excluded from the scope of the term 'intoxicating liquor ' as used in entry 31 of List II.
It is not disputed by the appellants that the impugned Act does not levy a duty of excise on medicinal and toilet preparations containing alcohol, but they contend that, whatever be the intention, the State Legislature had, in fact, encroached upon an occupied field.
The contention is, in our opinion, wholly misconceived.
The main purpose of the impugned Act is to consolidate the law relating to manufacture, sale and possession of intoxicating liquor and intoxicating drugs which squarely falls under Entry 8, List II of the Seventh Schedule, while the main object of the Central Act is to provide for the levy and collection of duties of excise on medicinal and toilet preparations containing alcohol falling under Entry 84, List I of the Seventh Schedule.
When the frame work of the two enactments is examined, it would be apparent that the Central and the State Legislations operate in two different and distinct fields.
In the matter of making rules or detailed provisions to achieve the object and purpose of a legislation, there may be some provisions seemingly overlapping or encroaching upon the forbidden field, but 537 that does not warrant the striking down the impugned Act as ultra virus the State Legislature.
The alternative contention that the impugned provisions are violative of article 19(1)(g) of the Constitution, is wholly devoid of any merit.
No citizen has any fundamental right guaranteed under article 19(1)(g) of the Constitution to carry on trade in any noxious and dangerous goods like intoxicating drugs or intoxicating liquors.
The power to legislate with regard to intoxicating liquor carries with it the power to regulate the manufacture, sale aud possession of medicinal and toilet preparations containing alcohol, not for the purpose of interfering with the right of citizens in the matter of consumption or use for bona fide medicinal and toilet preparations, but for preventing intoxicating liquors from being passed on under the guise of medicinal and toilet preparations.
It was within the competence of the State Legislature to prevent the noxious use of such preparations, i.e. their use as a substitute for alcoholic beverages.
The general test for determining what medicinal preparations containing alcohol are capable of being misused and, therefore, must be considered intoxicating within the meaning of the term 'intoxicating liquor ', is the capability of the article in question tor use as a beverage.
The impugned provisions have been enacted to ensure that rectified spirit is not misused under the pretext of being used for medicinal and toilet preparations containing alcohol.
Such regulation is a necessary concomitant of the police power of the State to regulate such trade or business which is inherently dangerous to public health.
Section 12A of the Act provides that no preparation to which liquor or intoxicating drug is added during the process of its manufacture or in which alcohol is self generated during such process shall be manufactured in excess of the quantity specified by the Commissioner: Provided that in specifying the quantity of a medicinal preparation, the Commissioner shall have due regard to the total requirement of that preparation for consumption or use in the State.
Section 12 provides that no person shall utilise liquor or intoxicating drug in the manufacture of any preparation, in excess of the quantity specified by the Commissioner and except under and in accordance with the terms and conditions of a licence granted by the Commissioner in that behalf: Provided that where such preparation is a medicinal preparation, the Commissioner shall, in 538 specifying the quantity of liquor or intoxicating drug, have due regard to the total requirement of such medicinal preparation for consumption or use in the State.
Now, section 68A provides for the Government to appoint an Expert Committee to advise the Commissioner as to whether a medicinal preparation is a bona fide medicinal preparation or not and as to the total requirement of the medicinal preparations containing alcohol or intoxicating drug or in which alcohol is self generated during the process of their manufacture for the whole of the State during one year.
The challenge to the validity of sections 12A and of the Act is mainly based on the words "shall have due regard to the total requirement of such medicinal preparations for consumption or use in the State "occurring in the provisions thereof.
The submission is that the quantity of medicinal preparations manufactured by the appellants would be restricted looking to the total requirements of such preparations for consumption or use in the State.
The medicines are in demand not only in the State, but throughout the country and to limit consideration by the Commissioner in granting a licence only to the requirements of preparations for consumption or use in the State, would be an unreasonable restriction on the fundamental right guaranteed under article 19(1) (g) of the Constitution.
We do not think that the impugned provisions contained in sections 12A and 12B have that effect.
All that the provisions ordain is that the Commissioner shall 'have regard to the total requirements for use and consumption within the State '.
The expression 'shall have regard to ' had been subject to judicial interpretation in Ryots of Garabandho and other villages vs Zamindar of Parlakimidi and Anr.(1) It only means 'take into consideration '.
Understood in the light of this judicial exposition, the Commissioner only has to take into account the total requirements within the State as an element which should enter the assessment and no more.
As a necessary corollary, it follows that in fixing the quantity of medicinal and toilet preparations to which alcohol is added or in which it is self generated, normally the Commissioner shall have regard to larger requirements of the manufacturer, if the manufactured product has a market outside the State.
As a corollary, it must result in the consequence that in the case of medicinal and toilet preparations which are capable of being misused as alcoholic beverages, or which are not bona fide medicinal preparations in the opinion of the Expert Committee, the Commissioner may totally prohibit the manufacture of such pre 539 parations.
The restrictions imposed by section 12B as to the alcoholic content of medicinal and toilet preparations and the requirement that they shall not be manufactured except and in accordance with the terms and conditions of a licence granted by him, are nothing but reasonable restrictions within the meaning of article 19(6).
The impugned provisions, therefore, cannot be struck down as offending article (1) (g) of the Constitution.
As regards the second ground, the contention that Parliament having made the requisite declaration in section 2 of the Industries (Development and Regulation) Act, 1951 declaring "drugs and pharmaceuticals" to be a scheduled industry, being item 22 of Schedule I thereof, the State Legislature was denuded of its competence to enact the impugned provisions under Entry 8, List II, cannot be accepted.
In Ishwari Khetan Sugar Mills (P) Ltd. vs State of Uttar Pradesh(1), this Court held that the legislative power of the States under Entry 24, List II is eroded only to the extent of control assumed by the Union by reason of a declaration made by Parliament in respect of a 'declared industry ' as spelt out by a legislative enactment under Entry 52, List I, and the field occupied by such enactments is the measure of erosion.
But subject to such erosion, on the remainder the State Legislature will still have power to legislate in respect of a declared industry without, in any way, trenching upon the occupied field.
Now, the impugned Act, in pith and substance, is not a legislation under Entry 24, List II and, therefore, the question really does not arise.
The third ground that the levy of supervisory charges under s.14(e) of the Act and r.16(4) of the Kerala Rectified Spirit Rules, 1972 being in conflict with r. 45(1) of the Central Rules, is constitutionally impermissible, cannot be accepted.
The submission rests on a misconception as to the scope and effect of the decision of this Court in the Hyderabad Chemicals and Pharmaceutical 's case (supra).
As we have already explained, the Court in that case was concerned with the levy of supervisory charges at the stage of manufacture of medicinal and toilet preparations and not with the levy of supervisory charges at the stage of supply and utilisation of rectified spirit in the manufacture of medicinal and toilet preparations.
There can be supervision at both the stages.
Merely because the Central Rules made no provision for realisation of supervisory charges at the stage of manufacture of medicinal and toilet preparations, does not imply 540 that the State has no power to prescribe the mode of supervision in a manufactory where preparations containing intoxicating liquor or intoxicating drugs are manufactured, or to ensure proper collection of duties, taxes and other dues payable under the Act, or to the proper utilisation of liquor or intoxicating drug.
The provision contained in section 14(e) of the Act is clearly relatable to the State 's power to make a law under entry 8, read with Entry 51(a), List II of the Seventh Schedule.
It necessarily follows that section 14(e) of the Act is valid in so far as it provides that the Commissioner may prescribe the size and nature of the establishment for such supervision and the cost of establishment and other incidental charges in connection with such supervision to be realised from the licensee.
There is no f ' warrant for the submission that the framing of such an incidental provision like r. 45(1) of the Central Rules takes away the State 's power to recover supervisory charges from the licensee.
There still remains the question whether the levy of supervisory charges must be regarded as a fee and, therefore, cannot be sustained, there being no quid pro quo.
In support of the contention, reliance is placed on the decision in Indian Mica Micanite Industries vs The State of Bihar and Ors.(1) The distinction between a 'tax ' and a 'fee ' is well settled.
The question came up for consideration for the first time in this Court in the Commissioner, H.R.E. Madras vs Lakshmindra Thirtha Swamiar of Shirur Mutt.(2) Therein, the Court speaking through Mukherjee, J. quoted with approval the definition of 'tax ' given by Latham, C.J. in Matthews vs Chickoory Marketing Board(3).
In that case, the learned Chief Justice observed: A tax is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered.
Dealing with the distinction between 'tax ' and 'fee ' the learned Judge observed :(4) It is said that the essence of taxation is compulsion, that is to say, it is imposed under statutory power without 541 the tax payer 's consent and the payment is enforced by law.
A The second characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax.
This is expressed by saying that the levy of tax is for the purposes of general revenue, which when collected forms part of the public revenues of the State.
As the object of a tax is not to confer any special benefit upon any particular individual, there is, as it is said, no element of quid pro quo between the tax payer and the public authority.
Another feature of taxation is that as it is a part of the common burden, the quantum of imposition upon the tax payer depends gene rally upon his capacity to pay.
Coming now to fees, 'a fee ' is generally defined to be a charge for a special service rendered to individuals by some Governmental agency.
The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed.
Ordinarily, the fees are uniform and no account is taken of the varying abilities of different recipients to pay.
These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all cases. .
If, as we hold, a fee is regarded as a sort of return or consideration for services rendered, it is absolutely necessary that the levy of fees should on the face of the legislative provision, be co related to the expenses incurred by Government in rendering the services.
The same view was reiterated by this Court in Mahant Sri Jagannath Ramanuj Das vs The State of Orissa(1) and in Ratilal Pannchand Gandhi vs The State of Bombay.
(2) 'Fees ' are the amounts paid for a privilege, and are not an obligation, but the payment is voluntary.
Fees are distinguished 542 from taxes in that the chief purpose of a tax is to raise funds for the support of the Government or for a public purpose, while a fee may be charged for the privilege or benefit conferred, or service rendered or to meet the expenses connected therewith.
Thus, fees are nothing but payment for some special privilege granted or service rendered.
Taxes and taxation are, therefore, distinguishable from various other contributions, charges, or burdens paid or imposed for particular purposes and under particular powers or functions of the Government.
It is now increasingly realised that merely because the collections for the services rendered or grant of a privilege or licence, are taken to the consolidated fund of the State and are not separately appropriated towards the expenditure for rendering the service is not by itself decisive.
That is because the Constitution did not contemplate it to be an essential element of a fee that it should be credited to J a separate fund and not to the consolidated fund.
It is also increasingly realised that the element of quid pro quo stricto senso is not always a sine qua non of a fee.
It is needless to stress that the element of quid pro quo is not necessarily absent in every tax.
We may, Din this connection, refer with profit to the observations of Seervai in his Costitutional Law, to the effect: (1) It is submitted that as recognised by Mukherjee, J. him self, the fact that the collections are not merged in the consolidated fund, is not conclusive, though that fact may enable a court to say that very important feature of a fee was present.
But the attention of the Supreme Court does not appear to have been called to article 266 which requires that all revenues of the Union of India and the States must go into their respective consolidated funds and all other public moneys must go into the respective public accounts of the Union and the States.
It is submitted that if the services rendered are not by a separate body like the Charity Com missioner, but by a government department, the character of imposition would not change because under article 266 the moneys collected for the services must be credited to the consolidated fund.
It may be mentioned that the element of quid pro quo is not necessarily absent in every tax.
(emphasis added) Our attention has been drawn to the observations in Kewal Krishan Puri & Anr vs State of Punjab and Ors.
(2) 543 The element of quid pro quo must be established A between the payer of the fee and the authority charging it.
It may not be exact equivalent of the fee by a mathematical precision, yet, by and large, or predominantly, the authority collecting the fee must show that the service which they are rendering in lieu of fee is for some special benefit of the payer of the fee.
To our mind, these observations are not intended and meant as laying down a rule of universal application.
The Court was considering the rate of a market fee, and the question was whether there was any justification for the increase in rate from Rs. 2/ per every hundred rupees to Rs. 31 .
There was no material placed to justify the increase in rate of the fee and, therefore, it partook the nature of a tax.
It seems that the Court proceeded on the assumption that the element of quid pro quo must always be present in a fee.
The traditional concept of quid pro quo is undergoing a transformation.
It seems obvious that.
in the case of a manufacturer of medicinal and toilet preparations containing alcohol in a bonded manufactory, the imposition of the cost of establishment under section 14(e) of the Act calculated in accordance with the nature and extent of that establishment could not be said to be an imposition of a duty of excise, but is a price for his franchise to carry on the business.
If an exaction is to be classed as a duty of excise, it must, of course, be a tax; its essential distinguishing feature is that it is a tax imposed "upon" or "in respect of ' or "in relation to" goods: Matthews vs Chickory Marketing Board (l).
The exaction is in truth, as it purports to be, simply a fee payable as a condition of a right to carry on a business.
No one has a fundamental right to the supply of rectified spirit which is an intoxicating liquor.
It is up to the State to control and regulate its supply from a distillery or a spirit warehouse in the State under and in accordance with terms and conditions of a licence or permit its import from outside by grant of a privilege and charge a fee for the same.
A fee may be charged for the privilege or benefit conferred, or service rendered, or to meet the expenses connected therewith.
A fee may be levided to meet the cost of supervision and maybe, something more.
It is in consideration for the privilege, licence or service.
The State is undoubtedly entitled to levy H 544 excise duty on the rectified spirit issued from a distillery under section 17(f) of the Act read with r. 13 of the Kerala Rectified Spirit Rules, 1972, but it refrained from making any such levy by reason of r. 21 of the Central Rules and has, therefore, by proviso to r. 8, allowed a manufacturer of medicinal and toilet preparations to draw rectified spirit from a distillery without payment of duty.
It is thus a privilege conferred on the licensee.
To claim the privilege he must comply with the conditions prescribed.
If one of the condition is the payment of cost of establishment under section 14(e) of the Act read with r. 16(4) of the Central Rules, the manufacturer of such preparations must necessarily bear the burden as the licensee gets services in return in lieu of such payment.
The decision in the Indian Mica Micanite Industries case (supra) on which reliance is placed furnishes a complete answer to the appellant 's contention.
The Court there was concerned with the validity of supervisory charges of the excise establishment from a consumer and not from the manufacturer under the Bihar and Orissa Excise Act, 1915.
It was clearly indicated that the burden of the cost of supervisory charges must fall on the manufacturer and not on the consumer because there was no co relationship between the levy of fee and the services rendered.
Further, though there was a double duty on the manufacturer as well as the consumer, the Court did not strike down the levy on the consumer because it was observed that the question of co relationship between the services rendered and the fee levied is essentially a question of fact.
In dealing with the question whether the impugned levy could be justified as a fee on the basis of the law as enunciated by this Court, it was observed : (1) According to the finding of the High Court the only services rendered by the Government to the appellant and to other similar licensees is that the Excise Department have to maintain an elaborate staff not only for the purposes of ensuring that denaturing is done properly by the manufacturer but also for the purpose of seeing that the subsequent possession of.
denatured spirit in the hands either of a wholesale dealer or retail seller or any other licensee or permit holder is not misused by coverting the denatured spirit into alcohol fit for human consumption and thereby 545 evade payment of heavy duty.
So far as the manufacturing A process is concerned, the appellant or other similar licensees have nothing to do with it.
They are only the purchasers of manufactured denatured spirit.
Hence the cost of super vising the manufacturing process or any assistance rendered to the manufacturers cannot be recovered from the consumers like the appellant.
Further, under Rule 9 of the Board 's rules the actual cost of supervision of the manufacturing process by the Excise Department is required to be borne by the manufacturer, There cannot be a double levy in that regard.
(emphasis added) The Court then went into the question whether there was any corelationship between the services rendered and the fee levied and whether the levy in question was not disproportionate to the value of the services rendered by the State, and observed: D In the opinion of the High Court the subsequent transfer of denatured spirit and possession of the same in the hands of various persons such as whole sale dealer, retail dealer or other manufacturers also requires close and effective supervision because of the risk of the denatured spirit being converted into palatable liquor and thus evading heavy duty.
Assuming this conclusion to be correct, by doing so, the State is rendering no service to the consumer.
It is merely protecting its own rights.
Further in this case, the State which was in a position to place material before the Court to show what services had been rendered by it to the appellant and other similar licensees, the costs or at any rate the probable costs that can be said to have been incurred for rendering those services and the amount realised as fees has failed to do so.
On the side of the appellant, it is alleged that the State is collecting huge amounts as fees and that it is rendering little or no service in return.
The co relationship between the services rendered and the fee levied is essentially a question of fact.
Prima facie, the levy appears to be excessive even if the State can be said to be rendering some service to the licensees.
The State ought to be in possession of the material from which the co relationship between the levy and the services 546 rendered can be established at least in a general way.
But the State has not chosen to place those materials before the Court.
Therefore the levy under the impugned Rule can not be justified.
Nevertheless, the Court remitted the matter to the High Court with a direction that opportunity be given to the State to place material to show that the value of the services rendered has reasonable co relationship with the fee charged.
We fail to see how the decision in the Indian Mica Micanite case (supra) can be of any help to the appellants.
The portions extracted above clearly show that the levy of service charges on the manufacturer are valid.
There is a broad co relationship between the fee collected and the cost of the establishment.
Under section 14(e) of the Act it is provided that the Commissioner, with the previous approval of the Government, may prescribe the size and nature of the establishment necessary for supervision of a manufactory and the cost of the establishment and other incidental charges in connection with such supervision be realised from the licence.
There can be no doubt that the supervisory staff is deployed in a bonded manufactory by the Government for its own protection to prevent the leakage of revenue, but there is no denying the fact that a licensee undoubtedly receives a service in return.
The cost of the establishment levied under section 14(e) of the Act is to be collected from the licensee in the manner provided by r. 16(4) of the Kerala Rectified Spirit Rules, 1972, relevant part of which reads: (4) All the transactions in the spirit store shall be conducted only in the presence of an Excise officer not below the rank of an Excise Inspector.
Such officer shall be assisted by at least two Excise Guards.
The cost of establishment of such officer and the guards shall be payable by the licensee in advance in the first week of every month as per countersigned chalan to be obtained from such officer.
The rate at which the cost of establishment is to be paid by the licensee shall be fixed by the Commissioner from time to time and intimated to the licensee in writing There is admittedly no provision made in the Central Rules for the recover of supervisor charges, perhaps because as the Court 547 Observed in the Hyderabad Chemicals and Pharmaceutical 's case A (supra) it was felt that the duty on medicinal and toilet preparations containing alcohol would be sufficient to defray the cost of such supervision.
But the absence of such a provision in the Central Rules, as we have already indicated, does not deprive the State from making a provision in that behalf.
It is true that the supervisory charges are in the nature of a compulsory exaction from a licensee and the collections are not credited to a separate fund, but are taken to the consolidated fund of the State and are not separately appropriated towards the expenditure incurred in rendering the service.
However, as observed in Government of Madras vs Zenith Lamp and Electricals Ltd. (1) followed in State of Rajasthan vs Sajjanlal Panjawat and Ors.
(2), that by itself is not decisive, by reason of article 266 of the Constitution.
lt is equally true that normally a fee is uniform and no account is taken of the paying capacity of the recipient of the service, but absence of uniformity will not make it a tax if co relationship is established (see Commissioner, H.R.E. Madras vs Lakshmindra Thirtha Swamiar of Shirur Mutt and Government of Madras vs Zenith Lamp and chemicals Ltd. supra).
The cost of supervisory charges can be sustained even if they are regarded as a fee for services rendered by the State or its instrumentalities.
The last ground on which the appellants took their stand is even less tenable.
It is urged that r. 13 of the Kerala Rectified Spirit Rules, 1972, providing for the levy of excise duty on excess wastage of alcohol in the manufacture of medicinal and toilet preparations cannot be supported in terms of the charging provision contained in section 17 of the Act.
Rule 13 reads as follows: 13(1) If the rectified spirit imported or purchased P under these rules is used for the manufacture of medicinal and toilet preparations which duty of excise is leviable under the (Central Act 16 of 1955), no duty shall be collected under the Abkari Act 1 of 1077 on so much quantity of alcohol, as is present in the finished product.
(2) The assessment of duty under the Medicinal and Toilet Preparations Excise Duties) Act, 1955 (Central Act 548 16 of 1955) being applicable only to the quantity of spirit existing in the finished product, all spirit wasted during the course of manufacture of any medicinal or toilet preparation shall be assessable to duty under the Abkari Act, 1 of 1077.
Provided that the Government may, in consultation with the Drugs Controller and the Chemical Examiner, by notification in the Gazette.
permit such allowance as they think fit for such wastages occurring during the manufacture.
No exception is taken to r. 13(1) which provides that no duty shall be collected under the Act on so much quantity of alcohol "as is present in the finished product".
The objection is to the validity of r. 13(2) in so far as it enables the levy of duty on excess wastage of alcohol.
We find it difficult to appreciate the contention that r. 13(2) cannot be supported in terms of the charging provision in section 17(f).
Rule 13(2) is nothing but a corollary of r. 13(1).
On a combined reading of section 17(f) and r. 8 read with the proviso thereof, no duty is chargeable on alcohol actually used in the manufacture of medicinal and toilet preparations.
The Government fully realised that some margin for wastage should be allowed and, therefore inserted the proviso to r. 13(1).
It provides that the Government may, in consultation with the Drugs Controller and the Chemical Examiner, by notification in the Gazette, permit such allowance as they think fit for such wastages occurring during the manufacture.
Beyond the permissible limit, the State has the right to levy a duty on excess wastage of alcohol, i.e. On alcohol not accounted for.
In the connected Special Leave Petition, the petitioner, P. Krishna Wariyar, Managing Trustee, Arya Vaidyasala, Kottakkal, who is engaged in the business of manufacture for sale of ayurvedic medicinal preparations, challenges the validity of sections 12A, 56A and 68A of the Act and rr. 5, 6 and 7 of the Kerala Spirituous Preparations Rules.
Apart from the question of legislative competence, two other grounds were raised: (1) the power to restrict the quantity of medicinal preparations to be manufactured, by the Commissioner under section 12 cannot be exercised in relation to ayurvedic preparations as alcohol is self generated in the process of manufac 549 ture; and (2) the impugned provisions offend against article 301 of the Constitution.
As regards the Rules, it was generally said that they constitute unreasonable restrictions on the fundamental right guaranteed under article 19(1) (g) of the Constitution.
None of these contentions can prevail.
It is to be observed that restriction imposed by section 12A of the Act as to the quantity of medicinal preparations to be manufactured relates not only to such preparations to which alcohol is added, but also to medicinal preparations in which alcohol is self generated.
There can be no doubt that ayurvedic asavas and aristhas which are capable of being misused as alcoholic beverages can come within the purview of the definition of 'liquor ' contained in section 3(10) of the Act being of the Spirituous Preparations (Control) Rules, 1969 liquids containing alcohol The contention that Note to r. 3(1) is an unreasonable restriction on the freedom of trade guaranteed under article 19(1) (g) of the Constitution has no substance.
It provides that unless otherwise declared by the Expert Committee, asavas and aristas and other preparations containing alcohal are deemed to be spurious if their self generated alcohol content exceeds 12% by volume.
It is a matter of common knowledge that such preparations are always likely to be misused as a substitute for alcoholic beverages and, therefore, the restriction imposed by section 12A is a reasonable restriction within the meaning of s 19(6) of the Constitution, So far as the contention based on article 301 of the constitution is concerned, it is urged that there is demand for the petitioner 's medicinal preparations not only in the State, but throughout the country and to limit the quantity to be manufactured, taking into account the requirements of the State alone, is but an abridgment on the freedom of inter State trade and commerce.
In our opinion, section 12A has no such effect.
As already stated, the expression 'shall have regard to ' as interpreted by the Judicial Committee in the Ryots of Garobandho 's case (supra), means 'shall take into consideration '.
All that the provision enjoins is that the Commissioner shall have regard to the total requirements for consumption and use in the State, while fixing the quantity of the medicinal preparations to be manufactured.
Furthermore, the challenge with regard to article 301 does not arise as, admittedly, the Bill was reserved for the assent of the President, and 550 is, therefore, protected by article 304(b) of the Constitution.
It is not disputed that the provisions are regulatory in nature and they impose reasonable restrictions on the freedom of trade.
For these reasons, both the Appeal and the Special Leave Petition must fail and are dismissed with costs.
| Respondent No. 1 who was the landlord and had let out the petition premises to respondent No. 2, served a notice (dated July 28, 1962) terminating her tenancy and filed an ejectment suit.
A decree for ejectment was passed (in 1966) and the appeal of respondent No. 2 was dismissed (in 1972).
The landlord took out execution of the decree.
Obstructionist notice served on the petitioners who were sub tenants of respondent No. 2 was made absolute in favour of the landlord.
The pensioners ' appeal was dismissed.
Dismissing the petitioners ' suits against the landlord for a declaration that they were lawful sub tenants /licensee entitled to the protection of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and for an injunction restraining the landlord from executing the decree for ejectment the trial Court held that they were not entitled to the benefit of the Act as lawful sub tenants or as deemed tenants or as protected licensees.
The petitioners appeals were dismissed on the ground that having been inducted into the premises after 1960 they were not entitled to be regarded as lawful sub tenants.
In the Special Leave Petitions to this Court it was contended that the petitioners: (1) must be regarded as licensees entitled to the benefit of section 14(2) read with section 15 A(1) of the Act: and (2) having been in occupation since 1943 and having in 1960 merely restricted their occupation to the portions occupied by them, they were lawful sub tenants since 1943, and, therefore, by virtue of section 14(1) they must be regarded as tenants on the determination of respondent No. 2 's tenancy.
Dismissing the Special Leave Petitions: ^ HELD: 1.
An agreement for licence can subsist and continue only so long as the licensor continues to enjoy a right, title or interest in the premises.
On the termination of his right, title or interest in the premises, the agreement for licence comes to an end.
If the licensor is a tenant, the agreement for licence terminates with the tenancy.
No tenant is ordinarily competent to grant a licence beyond his tenancy.
On the termination of the licensor 's tenancy the licensee cases to be a licensee.
This loss of status is the point 713 from which sub section (2) of section 14 of the Act begins to operate and in consequence of its operation, the erstwhile licensee becomes a tenant of the landlord on the terms and conditions of the agreement.
[715 F H] In the instant case respondent No. 2 ceased to be a tenant of any description long before February 1, 1973.
The contractual tenancy came to an end when the notice to quit took effect and the statutory tenancy terminated when the decree for ejectment was passed thereafter.
When she had ceased to be tenant, the agreement for licence stood automatically terminated by reason of which the petitioners cannot claim to be licensees on February 1, 1973.
[715 H 716 B] 2.
The benefit of section 14(1) can be claimed by a sub tenant to whom the premises had been lawfully sub let before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959.
[716 E] In the instant case the sub tenancy has been found to commence from 1962 and not earlier.
The benefit of sub section (1) of section 14 cannot be available, and there can be no right to continue in possession.
[716 F] Madhusudan A Mahale vs P.M. Gidh and others, held inapplicable.
|
N: Criminal Appeal No. 468 of 1983.
Appeal by Special leave from the Judgment and Order dated the 2nd February, 1983 of the Gauhati High Court in Civil Rule (HC) No. 4/83.
M.M. Abdul Khader and S.K. Nandy for the Appellants.
V.M. Tarkunde and Mrs. Manik Karanjawala with him for the Respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The detaining authority under section 3 (2) read with section 3 (3) of the ( 'Act ' for short) being the District Magistrate of Nowgong and the State of Assam assail the decision of the High Court at Gauhati quashing the order of detention.
On October 20, 1982, the District Magistrate made the following order: "Whereas I am satisfied from the dossier submitted by Superintendent of Police, Nowgong that it is necessary to prevent Shri Sarat Mudoi s/o Shri Renu Mudoi, village Senchows, P.S. Nowgong from acting in any manner prejudicial to maintenance of public order and maintenance of supplies and services essential to the community, I. section Kablian, I.A.S., District Magistrate, Nowgong, hereby in exercise of powers conferred under section 3 (2) read with section 3 (3) of , direct that Shri Sarat Mudoi be detained with immediate effect until further orders".
In the grounds of detention which were supplied to the detenu within the time provided by law, six grounds were specified.
Before the High Court several contentions were raised including the one to the effect that if the detaining authority does not specify in the order of detention as to which particular supply and/or service he had in mind while making it, the order of detention is vitiated.
After hearing counsel for the parties, the High Court came to the conclusion: 959 "We are of the view that as while passing the order of detention the authority has to specify the particular prejudicial activity whose prevention he has in mind, so also he must specify the particular supply and service which according to him is being prejudicially affected by the activities of the detenu.
The notified categories of supplies and services thus really get as if implanted in the and an order of detention on this score must have reference to one or more specified supplies and services forming part of notified categories.
Any other view would also pose a possibility of abuse of power as a result of absence of full application of mind." and set aside the order of detention.
At the stage of notice on the special leave petition this Court on March 10, 1983, made the following order: "Issue notice to the respondent returnable within a week confined to the question as to whether according to the ratio laid down by this Court in A.K. Roy vs Union of India ; , it is necessary to specify in the order of detention itself the particular supplies and services essential to the community which are affected by the activities of the detenu or will it suffice if it is mentioned in the grounds for detention".
On behalf of the State this Court was told that even if the appeal was allowed, the respondent would not be detained for the unexpired portion of the period.
The short question that survives for consideration, therefore, is whether without the particulars of supplies and services specified in the order of detention, it is bad.
In A.K. Roy 's case and the connected matters this Court took the view that no person could be detained under section 3 (2) of the with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community unless by a law or notification made or published fairly in advance the supplies and services the maintenance of which is regarded as essential to the community and in respect of which the order of detention is proposed to be passed are made known properly to the public.
Accordingly, 960 by a notification on February 8,1982,16 specified supplies and services were notified as essential to the community and this notification was duly published in the Gazette of India, Extra ordinary issue of the same day.
Under the the detenu is entitled to make a representation against the order of detention.
It is manifest from the statutory scheme that his right to represent is after the grounds are served on the detenu.
It is the pronounced view of this Court that such right should be without fetters and as wide as possible.
Since the citizen is detained without trial and on the basis of satisfaction of a notified authority the right to represent assumes importance.
The detenu would be in a position to effectively represent only when specific particulars are provided to him and the grounds are intended to provide that material to him.
Mr. Tarkunde who appeared amicus curiae fairly agreed that it is not necessary that the specification should be in the order of detention and it would be adequate to enable the detenu to make an effective representation if the particulars are provided in the grounds of detention.
We are inclined to take the view that a full disclosure made in the grounds in no way prejudices the right guaranteed to the detenu to make an effective representation challenging his detention.
Therefore, non specification of the required particulars in the order of detention would not vitiate the order as long as the particulars are provided in the grounds in support of the order of detention which in quick succession of the detention order are served on the detenu.
Counsel for the appellants argued that while it would be possible for the particulars to be provided with reference to past conduct it would be difficult to specify any of the 16 items of services and supplies included in the notification in regard to future conduct of the detenu and, therefore, to require the detaining authority to so specify would be asking for the performance of something impossible.
In view of the limited question on which notice was issued, this aspect strictly does not fall for consideration.
We also do not find any merit in this stand.
It was pointed out by this Court in Debu Mahto vs State of West Bengal(1), that the basis for an order of preventive detention is the reasonable prognosis of the future behaviour of the person based upon his past conduct.
It is open to the detaining authority to take note of the past conduct of a detenu and apprehending repetition of 961 such conduct in future an order of detention can be made with a view to preventing such action.
If past conduct confined to any or all of the 16 of the items in the notification could be satisfied, the detaining authority could also on the basis of reasonable apprehension of repetition of such conduct in future make an order of detention for its prevention.
We do not propose to say anything more in view of the short question to which the notice was confined.
We are thankful to Mr. Tarkude for assisting us at the hearing as amicus curiae.
This disposes of the appeal.
H.S.K. Appeal allowed.
| The respondent challenged the order of his detention under the National Security Act on the ground that since the detaining authority did not specify in the order of detention as to which particular supplies and services he had in mind while making it, the order of detention was vitiated.
The High Court set aside the order of detention.
In appeal it was submitted that it would be impossible for the detaining authority to specify any of the 16 items of services and supplies included in the notification in regard to the future conduct of the detenu.
Allowing the appeal, ^ HELD: Under the Act the detenu is entitled to make a representation against the order of detention.
It is manifest from the statutory scheme that his right to represent is after the grounds are served on the detenu.
The right of the detenu to make a representation should be without fetters and as wide as possible.
Since the citizen is detained without trial and on the basis of satisfaction of a notified authority the right to represent assumes importance.
The detenu would be in a position to effectively represent only when specific particulars are provided to him and the grounds are intended to provide that material to him.
A full disclosure made in the grounds of detention in no way prejudices the right guaranteed to the detenu to make an effective representation challenging his detention.
Therefore, non specification of the required particulars in the order of detention would not vitiate the order as long as the particulars are provided in the grounds in support of the order of detention which in quick succession of the detention order are served on the detenu.
[960 B E] It is open to the detaining authority to take note of the past conduct of a detenu.
If past conduct confined to any or all of the 16 items in the notification could be satisfied, the detaining authority could also on the basis of reasonable apprehension of repetition of such conduct in future make an order of detention for its prevention.
[960 H; 961 A] Debu Mahto vs State of West Bengal, AIR 1974 SC 816, referred to. 958
|
Appeal No. 119 of 1955.
Appeal from the judgment and order dated June 16, 1953, of the Punjab High Court in Civil Reference No. 1 of 1953.
A. V. Viswanatha Sastri and Naunit Lal, for the appellant.
H. N. Sanyal, Additional Solicitor General of India, R. Gopalakrishnan, R. H. Dhebar and D. Gupta, for the respondent.
November 24.
The Judgment of the Court was delivered by SARKAR, J.
The appellant is a company carrying on business as a distiller of country liquor.
It was incorporated in May 1945 and was in fact a previously existing company called the Amritsar Distillery Co. Ltd. reconstructed under the provisions of the Company 's Act.
The appellant carried on the same business as its predecessor, namely, sale of the produce of its distillery to licensed wholesalers.
The wholesalers in their turn sold the liquor to licensed retailers from whom the actual consumers made their purchases.
The entire trade was largely controlled by Government regulations.
After the war started the demand for country liquor increased but difficulty was felt in finding bottles in which the liquor was to be sold.
In order to relieve the scarcity of bottles the Government devised in 1940 a scheme called the buy back scheme.
The scheme in substance was that a distiller on a sale of liquor became entitled to charge a wholesaler a price for the bottles in which the liquor was supplied at rates fixed by the Government which he was bound to repay to the wholesaler on the latter returning the bottles.
The 685 same arrangement, but with prices calculated at different rates was made for the liquor sold in bottles by a wholesaler to a retailer and by a retailer to the consumers.
Apparently it was conceived that the price fixed under the scheme would be found to be higher than the price which the bottles would fetch in the open market and the arrangement for the refund of the price would therefore encourage the return of the bottles from the consumers through the intermediaries ultimately to the distiller.
The price refundable was later increased perhaps because the previous price did not fully achieve the desired result of the bottles finding their way back to the distillers.
Sometime in 1944, the Amritsar Distillery Co. Ltd. which then was in existence, insisted on the wholesalers paying to it in addition to the price of the bottles fixed under the buy back scheme, certain amounts described as security deposits and calculated at varying rates per bottle according to sizes for the bottles in which the liquor was supplied to them promising to pay back for each bottle returned at the rate ' applicable to it and further promising to pay back the entire amount paid on a transaction when 90 per cent.
of the bottles covered by it had been returned.
The company while it was in existence realised these additional sums and so did the appellant after it took over the business.
The object of demanding and taking these additional sums was obviously to provide additional inducement for the return of the bottles to the distiller so that its trade in selling the produce of its distillery might not be hampered for want of bottles.
No time limit had been fixed within which the bottles had to be returned in order to entitle a wholesaler to the refund, nor does it appear that a refund had ever been refused.
The price of the bottles received by the appellant under the buy back scheme was entered by it in its general trading account while the additional sum received for them was entered in the general ledger under the heading " Empty Bottles Return Security Deposit Account ".
It is not disputed that for the accounting periods with which this case is concerned, the additional amounts had been taken 686 without Government 's sanction and entirely as a condition imposed by the appellant itself for the sale of its liquor.
The appellant was assessed to income tax on the balance of the amounts of these additional sums left after the refunds made there out.
It had also been assessed to business profits tax and excess profits tax on the same balance.
Its appeals against the orders of assessment to these taxes to the Appellate Assistant Commissioner and thereafter to the Tribunal failed.
It then obtained an order referring a certain question arising out of the assessments for decision by the High Court of Punjab.
The question originally suggested was reframed and in its final form reads thus: Whether on the facts and circumstances of the case the collections by the assessee company described in its accounts as " empty bottle return security deposits" were income assessable under section 10 of the Income tax Act? The High Court answered the question in the affirmative.
The present appeal is against that decision which related to all the three varieties of taxes for which the appellant had been made liable.
We are concerned in this appeal only with the additional sums demanded and received by the appellant and described as security deposit and not with the price of bottles which also it took under government sanction.
The question is whether these amounts called security deposits were.
trading receipts.
Now, as already stated, the appellant 's trade consisted in selling in bottles liquor produced in its distillery to wholesalers.
The sale was made on these terms: In each transaction of sale the appellant took from the wholesaler the price of the liquor, a certain sum fixed by the government, as price of the bottles in which the liquor was supplied and a further sum described as security deposit for the return of the bottles.
The moneys taken as price of the bottles were returned as and when the bottles were returned.
The moneys described as security deposit were also returned as and when the bottles were returned with only this difference that in this case the entire sum taken in one 687 transaction was refunded when 90 per cent.
of the bottles covered by it had been returned, though the remaining 10 per cent.
had not been returned.
Such being the nature of the appellant 's trade and the manner in which it was conducted, these additional sums appear to us to be its trading receipts.
Mr. Vishwanatha Sastri appearing on behalf of the appellant first contended that on these facts the amounts could not be regarded as price and that therefore they were not trading receipts.
He said that the price of the bottles was separately fixed and the amount taken as deposit was different from and exclusive of, it.
This contention is founded on the use of the word price in the buy back scheme in connection with the rates which the distiller was entitled to charge a wholesaler for the bottles.
It seems to us that this contention lays undue emphasis on that word.
We think that the High Court took substantially a correct view of the matter when it said that in realising these amounts " the company was really charging an extra price for the bottles ".
It is clear to us that the trade consisted of sale of bottled liquor and the consideration for the sale was constituted by several amounts respectively called, the price of the liquor, the price of the bottles and the security deposit.
Unless all these sums were paid the appellant would not have sold the liquor.
So the amount which was called security deposit was actually a part of the consideration for the sale and therefore part of the price of what was sold.
Nor does it make any difference that the price of the bottles was entered in the general trading account while the so called deposit was entered in a separate ledger termed " empty bottles return deposit account ", for, what was a consideration for the sale cannot cease to be so by being written up in the books in a particular manner.
Again the fact that the money paid as price of the bottles was repaid as and when the bottles were returned while the other moneys were repaid in full when 90 per cent.
of the bottles were returned does not affect the question for ,none of these sums ceased to be parts of the consideration because it had been agreed that they would be 688 refunded in different manners.
It is not contended that the fact that the additional sums might have to be refunded showed that they were not part of the price.
It could not be so contended because what was expressly said to be the price of bottles and admitted to be price was also refundable.
If so, then a slightly different method providing for their refund cannot by itself prevent these additional sums from being Price.
Now, if these additional sums were not part of the price, what were they ? Mr. Sastri said that they were deposits securing the return of the bottles.
According to him if they were such security deposits, they were not trading receipts.
Again we are unable to agree.
There could be no security given for the return of the bottles unless there was a right to their return for if there was no such right, there would be nothing to secure.
Now we find no trace of such a right in the statement of the care.
The wholesalers were clearly under no obligation to return the bottles.
The only thing that Mr. Sastri could point out for establishing such an obligation was the use of the words " security de posit ".
We are unable to hold that these words alone are sufficient to create an obligation in the wholesalers to return the bottles which they had bought.
If it had been intended to impose an obligation on the wholesalers to return the bottles, these would not have been sold to them at all and a bargain would have been expressly made for the return of the bottles and the security deposit would then have been sensible and secured their return.
The fact that there was no time limit fixed for the return of the bottles to obtain the refund also indicates that there was no obligation to return the bottles.
The substance of the bargain clearly was that the appellant having sold the bottles agreed to take them back and repay all the amounts paid in respect of them.
For this part of the case Mr. Sastri relied on Davies vs The Shell Company of China Ltd. (1), but we do not think that case assists at all.
What had happened there was that the Shell Company had appointed a large number of agents in China to sell its products (1) 689 and had taken from each agent a deposit to secure itself against the risk of default by the agent duly to PI account for the sale proceeds.
The deposits were made in Chinese dollars and later converted into sterling.
When the Company closed its business in China it reconverted the deposits into Chinese dollars and refunded to the agents the deposits made by them.
Owing to a favourable exchange for the conversion of sterling into dollars, the Company made a profit and it was sought to assess this profit to income tax.
It was held that the profit could not be taxed, for the deposits out of which it was made were really not trading receipts at all.
Jenkins, L. J., observed at p. 157: " Mr. Grant described the agents ' deposits as part of the Company 's trading structure, not trade receipts but anterior to the stage of trade receipts, and I think that is a fair description of them.
It seems to me that it would be an abuse of language to describe one of these agents, after he had made a deposit, as a trade creditor of the Company; he is a creditor of the Company in respect of the deposit, not on account of any goods supplied or services rendered by him in the course of its trade, but simply by virtue of the fact that he has been appointed an agent of the Company with a view to him trading on its behalf, and as a condition of his appointment has deposited with or, in other words, lent to the company the amount of his stipulated deposit.
" lie also said at p. 156: it If the agent 's deposit had in truth been a payment in advance to be applied by the Company in discharging the sums from time to time due from the agent in respect of petroleum products transferred to the agent and sold by him the case might well be different and might well fall within the ratio deciding of Landes Bros. vs Simpson (1) and Imperial Tobacco Co. vs Kelly (2).
But that is not the character of the deposits here in question.
The intention manifested by the terms of the agreement is that the deposit should be (1) (2) 87 690 retained by the Company, carrying interest for the benefit of the depositor throughout the terms of the agency.
It is to be available during the period of the agency for making good the agent 's defaults in the event of any default by him ; but otherwise it remains, as I see it, simply as a loan owing by the Company to the agent and repayable on the termination of the agency ".
It would therefore appear that the deposits in that case were held not to be trading receipts because they had not been made as part of a trading transaction.
It was held that they had been received anterior to the commencement of the trading transactions and really formed the trading structure of the Company.
The character of the amounts with which we are Concerned is entirely different.
They were parts of the trading transactions themselves and very essential parts: the appellant would not sell liquor unless these amounts were paid and the trade of the appellant was to make profit out of these sales.
The fact that in certain circumstances these amounts had to be repaid did not alter their nature as trading receipts.
We have already said that it is not disputed that what was expressly termed as price of bottles was a trading receipt though these had to be repaid in almost similar circumstances.
We may point out that it had not been said in Shell Company case(1) that the deposits were not trading receipts for the reason that they might have to be refunded; the reason for the decision was otherwise as we have earlier pointed out, namely, that they were no part of the trading transactions.
We therefore think that the deposits dealt with in the Shell Company case were entirely of a different nature and that case does not help.
Mr. Sanyal was prepared to argue that even if the amounts were securities deposited for the return of the bottles, they would still be trading receipts, for they were part of the trading transactions and the return of the bottles was necessary to enable the appellant to carry on its trade, namely, to sell liquor in them.
As we have held that the amounts had not been paid as security for the return of the bottles, we do not (1) 691 consider it necessary to pronounce upon thiscontention.
We might also refer to the observationsmade in Imperial Tobacco Co. vs Kelly(1) mentioned in the Shell Company case (2) and set out below.
There the Company in the course of its trading activity used to purchase tobacco in America and for that purpose had to acquire American dollars.
It so happened that after it had acquired a certain amount of dollars for making the purchases, it was prevented from buying tobacco in America by Government orders passed due to outbreak of war.
While the dollars lay with the Company, they appreciated in value and later the Treasury acquired the dollars and paid the Company for them in sterling at the then current rate of exchange, as a result of which payment the Company made a profit.
It was hold that the profit was a trading receipt of the Company.
Lord Greene said at p. 300: " The purchase of the dollars was the first step in carrying out an intended commercial transaction, namely, the purchase of tobacco leaf.
The dollars were bought in contemplation of that and nothing else ".
He also observed that the dollars " were an essential part of a contemplated commercial operation ".
It seems to us that the amounts with which this case is concerned, were paid and were refundable as an integral part of a commercial transaction, namely, the sale of liquor in bottles by the appellant to a wholesaler.
The case nearest to the present one is, in our view, that decided by this Court in K. M. section Lakshmanier & Sons vs Commissioner of Income tax and Excess Profits Tax, Madras (3).
There the appellants, who were the assessees, were merchants carrying on business as the sole selling agents for yarn manufactured by the Madura Mills Co. Ltd. They sold the yarn to their constituents and in the relevant accounting period the sales were made under three successive arrangements each of which covered a part of it.
Under each arrangement, the assessees were paid a certain initial (1) (2) (3) ; 692 sum by their customers.
The question was as to the nature of these initial payments.
Under the first arrangement " the appellants had two accounts for each constituent, namely, ' a contract deposit account ' and ' a current yarn account ', crediting the moneys received from the customers in the former account and transferring them to the yarn account in adjustment of the price of the bales supplied then and there, that is, as and when deliveries were made under a contract either in instalment or in full ".
It was held that the amounts received from the customers under this arrangement were taxable as they were merely advance payments of the price and could riot therefore be regarded as borrowed money.
This was clearly so because under this arrangement cash was deposited by a purchaser in respect of a contract of purchase at the time it was made and was to be applied when the goods had been delivered by the appellant under that contract towards the price payable in respect of them, such price not being payable in any other manner.
The arrangement for the second part of the accounting period was that the payment made by a constituent at the time of the making of a contract was taken as " Contracts advance fixed deposit " and it was refunded when the goods under the contract had been supplied and the price in respect thereof paid in full irrespective of the earlier payment.
With respect to the payment initially made under this arrangement Patanjali Sastri, C. J., said at p. 1067 : ". we are of opinion that, having regard to the terms of the arrangement then in force, they partake more of the nature of trading receipts than of security deposits.
It will be seen that the amounts received were treated as advance payments in relation to each " contract number " and though the agreement provided for the payment of the price in full by the customer and for the deposit being returned to him on the completion of delivery under the contract, the transaction is one providing in substance and effect for the adjustment of the mutual obligations on the completion of the contract.
We hold accordingly that 693 the sums received during this period cannot be regarded as borrowed money. .
It seems to us that the amounts involved in the present case were exactly of the nature of the deposits made in the second period in Lakshmanier & Sons ' case (1).
There, as here, as soon as a transaction of sale was made the seller received certain moneys in respect of it.
It is true that in Lakshmanier & Sons ' case the transaction was a contract to sell goods in future whereas in the present case the transaction was a sale completed by delivery of the goods and receipt of the consideration.
But that cannot change the nature of the payment.
In Lakshmanier & Sons ' case, the payment initially made was refundable after the price had been paid; in the present case the contract is to refund the amount on the return of the bottles already sold.
In each case therefore the payment was made as part of a trading transaction and in each case it was refundable on certain events happening.
In each case again the payment was described as a deposit.
As in that case, so in the present case, the payment cannot be taken to have been made by way of a security deposit.
We must therefore on the authority of Laskhmanier & Sons ' case, hold the amounts in the present case to have been trading receipts.
It was Mr. Sastri 's effort to bring the case within the arrangement that prevailed in the third part of the accounting period in Laskhmanier & Sons ' case, the initial payments made during which were held to be loans.
But we think that he has not succeeded in this.
The payments during the third period were made under the following arrangements: " Instead of calling for amounts from you towards 'Security Deposit ' due to bales for which we are entering into forward contracts with you and returning the same to you from the said deposit then and there, as we are doing now, and in order to make it feasible, we have decided to demand from you a certain sum towards Security Deposit and keep the same with us so long as our business connections under forward contracts will continue with you." Under this arrangement a certain (1)[1953] S.C.R. 1057.
694 sum was kept in deposit once and for all and there.
after Lakshmanier & Sons commenced to enter into the trading transactions, namely, forward contracts for sale of yarn with the constituents who deposited the money.
The sum so deposited was to be refunded with interest at three per cent.
per annum at the end of the business connection between the parties, if necessary, after retaining there out any amount due on the contracts made with the constituent which, the latter was at the termination of the business found not to have paid.
Patanjali Sastri, C. J., observed at p. 1063 in regard to the deposits made under this arrangement: "The amount deposited by a customer was no longer to have any relation to the price fixed for the goods to be delivered under a forward contract either in instalments or otherwise.
Such price was to be paid by the customer in full against delivery in respect of each contract without, any adjustment out of the deposit, which was to be held by the appellants as security for the due performance of his contracts by the customer so long as his dealings with the appellants by way of forward contract continued, the appel lants paying interest at 3 per cent.
in the meanwhile, and having, as appears from the course of dealings between the parties ' the use of the money for their own business.
It was only at the end of the " business connection " with the appellants that an adjustment was to be made towards any possible liability arising out of the customer 's default.
Apart from such a contingency arising, the appellants undertook to repay an equivalent amount at the termination of the dealings.
The transaction had thus all the essential elements of a contract of loan, and we accordingly hold that the deposits received under the final arrangement constitute borrowed money ".
Having observed that the description of the payment made by the customer as a deposit made no difference for a deposit included as a loan, the learned Chief Justice further said at p. 1064: " The fact that one of the conditions is that it is to be adjusted against a claim arising out of a possible 695 default of the depositor cannot alter the character of the transaction.
Nor can the fact that the purpose for which the deposit is made is to provide a security for the due performance of a collateral contract invest the deposit with a different character.
It remains a loan of which the repayment in full is conditioned by the due fulfilment of.
the obligations under, the collateral contract ".
In coming to the view that he did with regard to the arrangement prevailing in the third period, the learned Chief Justice referred ' with approval to the case of Davies vs Shell Company of China(1) which we have earlier mentioned.
Now it seems to us that the reasons on which the learned Chief Justice based his conclusion that the deposits during the third period were loans do not apply to the present case.
In the present case, unlike in Lakshmanier & Sons ' case, the amount paid has a relation to the price of the goods sold ; it is part of that price as we have earlier said.
It was a condition of each transaction of sale by the appellant.
It was refundable to the wholesaler as soon as he returned the bottles in which the liquor had been supplied to him in the transaction in respect of which the deposit had been made.
The deposit in the present case was really not a security at all ; it did not secure to the appellant anything.
Unlike Lakshmanier & Sons ' case, in the present case a deposit was made every time a transaction took place and it was refundable under the terms of that transaction independently of other deposits under other transactions.
In Lakshmanier & Sons ' case, the deposit was in the nature of the assee 's trading structure and anterior to the trading operations, as were the deposits considered in Shell Company case(1).
In the case in hand the deposit was part of each trading transaction.
It was re.
fundable under the terms of the contract relating to a trading transaction under which it had been made; it was not made under an independent contract nor was its refund conditioned by a collateral contract, as happened in Lakshmanier & Sons ' case.
(1) 696 We therefore think that the present case is governed by the arrangement covering the second period and: not the third period mentioned in Lakshmanier & Sons case (1), and, come to the conclusion that the amounts with which we are concerned were trading receipts.
Mr. Sastri also referred us to Morley vs Pattersall and contended that the amounts with which we are concerned, were of the same kind as those consideredin that case and were not income.
It seems to us that there is no similarity between the two cases at all.
Tattersall was a firm who sold horses of its constituents on their behalf and received the price which it was liable to pay them.
It so happened that in the course of years various customers did not come and demand the amounts due to them.
Initially Tattersall showed those amounts in its accounts as liabilities which they really were.
Later it thought that it would never have to pay back these amounts and thereupon transferred them to the credit of its partners.
The Revenue sought to tax the amounts so transferred as Tattersall 's income.
The question was whether the amounts upon transfer became Tattersall 's income.
It was never contended that the amounts when received as price of the constituent 's horses sold were Tattersall 's income and the only contention was that they became income upon being transferred to the credit of the partners.
It was held that the amounts had not by being entered on the credit side, become income of the firm.
Sir Wilfrid Greene said at p. 65 : " Mr. Hill 's argument was to the effect that, although they were not trading receipts at the moment of receipt, they had at that moment the potentiality of becoming trading receipts.
That proposition involves a view of Income Tax Law in which I can discover no merit except that of novelty.
" Then again he said: " It seems to me that the quality and nature of a receipt for Income Tax purposes is fixed once and for all when it is received.
What the partners did in (1) ; (2) 697 this case, as I have said, was to decide among themselves that what they had previously regarded as a liability of the firm they would not, for practical reasons, regard as a liability; but that does not mean that at that moment they received something, nor does it mean that at that moment they imprinted upon some existing asset a quality different from what it had possessed before.
There was no existing asset at all at that time.
" All that this case decided was that moneys which were not when received, income and as to this there was no question could never later become income.
With such a case we are not concerned.
The case turned on the fact that the moneys received by Tattersall were never its moneys; they had been received on behalf of others and that receipt only created a liability towards them.
Now it seems to us quite impossible to say that the amounts with which we are concerned were not the appellant 's moneys in the sense that the constituent 's moneys in the hands of Tattersall were not its.
The amounts in this case were not received on account of any one but the appellant.
No doubt these moneys might have to be refunded if certain things happened which however might never happen, but that did not make them the moneys of those who might become entitled to the refund.
Mr. Sastri referred us to the observations of Sir Wilfrid Greene, M. R., in Morley vs Tattersall (1) at p. 65 to the effect that, " The money which was received was money which had not got any profit making quality about it; it was money which, in a business sense, was a client 's money and nobody else 's" and contended that the amounts involved in the presentcase were of the same nature.
We are unable to agree.
If we are right in our view that the amounts were trading receipts, it follows that they must have a profit making quality about them.
Their payment was insisted upon as a condition upon which alone the liquor would be supplied with an agreement that they would.
be repaid oil the return of the bottles.
They (1)(1938) 88 698 were part of the transactions of sale of liquor which produced the profit and therefore they had a profit making quality.
Again, a wholesaler was quite free to return the bottles or not as he liked and if he did not return them, the appellant had no liability to refund.
It would then keep the moneys as its own and they would then certainly be profit.
The moneys when paid were the moneys of the appellant and were thereafter in no sense the moneys of the persons who paid them.
Having given the matter our anxious consideration which the difficulties involved in it require, we think that the correct view to take is that the amounts paid to the appellant and described as " Empty Bottles Return Security Deposit " were trading receipts and therefore income of the appellant assessable to tax.
We agree with the High Court that the question framed for decision in this case, should be answered in the affirmative.
In the result the appeal fails and is dismissed.
The appellant will pay the costs in this Court.
Appeal dismissed.
| The appellant assessee carried on the business of mining gypsum.
The predecessor in interest of the assessee acquired a lease from the Maharaja of one of the erstwhile princely State on September 29, 1948 for mining of gypsum for a period of 20 years over an area of 4.27 square miles in the State.
The lease was liable to be renewed after the expiry of 20 years.
By a deed of assignment dated December 11, 1948 the rights under the lease were assigned to the assessee company, in which the State Government owned 45% shares.
The assessee entered into an agreement with a Government of India Public Undertaking for the supply of gypsum of minimum of 83.5% quality.
Under the lease, the assessee was conferred the liberties and powers to enter upon the entire leased land and to search for win, work, get, raise, convert and carry away the gypsum for its own benefits in the most economic convenient and beneficial manner and to treat the same by calcination and other processes.
The lease agreement consisted of several parts and each part contained several clauses.
Clause 3 of part Iii prescribed restrictions on mining operation within 100 yards from any railway, reser voir, canal or other public works.
This clause had been incorporated in the lease to protect the railway track and railway station which was situated within the area demised to the lessee.
The assessee exclusively carried on the mining of gypsum in the entire area demised to it.
The Railway Authorities extended the railway area by laying down fresh track, pro viding for railway siding and further constructed quarters in the leased area without the permission of the assessee.
The assessee company filed a civil suit for ejecting the railways from the encroached area but it failed in the suit.
314 As the assessee company on research and survey found that under the railway area a high quality of gypsum was available, which was required as raw material by the Public Sector Company, all the parties (Public Sector Company, the Railway Board and the assessee company) negotiated the matter, the Railway Board agreeing to shift the railway station, track and yards to an alternative area offered by the assessee, the parties equally bearing the cost of the shifting.
Under the aforesaid agreement, the assessee company paid a sum of Rs.3 lakhs as its share towards the cost of shift ing of the Railway Station and other constructions, and claimed deduction of the said sum for the assessment year 1964 65.
The Income Tax Officer rejected the assessee 's claim on the ground that it was a capital expenditure.
The order was confirmed on appeal by the Appellate Assistant Commissioner.
On appeal by the assessee, the Income Tax Appellate Tribunal held that the payment of Rs.3 lakhs by the assessee company was not a capital expenditure, but a revenue expend iture.
The Tribunal referred the question to the High Court under section 256 of the Income Tax Act, 1961, on an appli cation by the revenue, which held that since on payment of Rs.3 lakhs to the Railways the assessee acquired a new asset which was attributable to capital of enduring nature, the sum of Rs.3 lakhs was a capital expenditure and it could not be a revenue expenditure.
In the appeal to this Court on the question whether the payment of Rs.3 lakhs to the Northern Railway was a revenue expenditure and was a deduction allowable under the Income Tax Act, 1961.
Allowing the appeal, this Court, HELD: 1(a) Where the assessee has an existing right to carry on a business, any expenditure made by it during the course of business for the purpose of removal of any re striction or obstruction or disability would be on revenue account, provided the expenditure does not acquire any capital asset.
[326A] (b) Payments made for removal of restriction, obstruc tion or disability may result in acquiring benefits to the business, but that by itself would not acquire any capital asset.
[326B] Gotan Lime Syndicate vs C.I.T., Rajasthan & Delhi, ; M.A. Jabbar vs C.I.T., Andhra Pradesh, Hyderabad, [1968] 315 2 SCR 413 and Commissioner of Inland Revenue vs Carron Company, [1966 69] 45 Tax Cases 18, referred.
Empire Jute Company vs C. I. T., ; , affirmed.
In the instant case, the assessee have been granted mining lease in respect of 4.27 square miles under which he had right to sink, dig, drive, quarry and extract mineral i.e. the gypsum and in that process he had right to dig the surface of the entire area leased out to him.
The payment of Rs.3 lakhs was not made by the assessee for the grant of permission to carry on mining operations within the railway area, instead the payment was made towards the cost of removing the construction which obstructed the mining opera tions.
On the payment made to the Railway Authorities the assessee did not acquire any fresh right to any mineral nor he acquired any capital asset instead, the payment was made by it for shifting the Railway Station and track which operated as hindrance and obstruction to the business of mining in a profitable manner.
[326C E] 2.
There may be circumstances where expenditure, even if incurred for obtaining advantage of enduring benefit would not amount to acquisition of asset.
The facts of each case have to be borne in mind in considering the question having regard to the nature of business, its requirement and the nature of the advantage in commercial sense.
[326F G] 3(a) The test for considering the expenditure for the purposes of bringing into existence an asset or an advantage for the enduring benefit of a trade is not always true and conclusive.
[327B] 3(b) In considering the cases of mining business the nature of the lease the purpose for which expenditure is made, its relation to the carrying on of the business in a profitable manner should be considered.
[326H] In the instant case, existence of Railway Station, yard and buildings on the surface of the demised land operated as an obstruction to the assessee 's business of mining.
The Railway Authorities agreed to shift the Railway establish ment to facilitate the assessee to carry on his business in a profitable manner and for that purpose the assessee paid a sum of Rs.3 lakhs.
The payment made by the assessee was for removal of disability and obstacle and it did not bring into existence any advantage of an enduring nature.
There was therefore.
no acquisition of any capital asset.
[326H; 327A] 316 British Insulated and Helsby.
Cables Ltd. vs Atherton, , explained.
Assam Bengal Cement Co. Ltd. vs The Commissioner of Income Tax, West Bengal, , referred to.
R.B. Seth Moolchand Suganchand vs Commissioner of Income Tax, New Delhi, , distinguished.
The Tribunal rightly allowed the expenditure on revenue account.
The High Court failed to appreciate the true nature of the expenditure.
It committed an error in interfering with the findings recorded by the Income Tax Appellate Tribunal.
[327B C]
|
tion (Criminal) No. 395 of 1988.
(Under Article 32 of the Constitution of India).
Miss Kamini Jaiswal and S.C. Patel for the Petitioner.
T.U. Mehta and M.N. Shroff for the Respondents.
The Judgment of the Court was delivered by RATNAVEL PANDIAN, J.
This writ petition under Article 32 of the Constitution of India is filed by the petitioner (the detenu herein) canvassing the correctness of the detention order dated 30.8.88 made by the detaining authority namely Commissioner of Police, Ahmedabad city in exercise of the powers conferred on him under sub Section 1 of Section 3 of the Gujarat Prevention of Anti social Activities Act 1985 (hereinafter referred as the Act) with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order in the area of Ahmedabad city.
In pursuance of the above order, the detenu is detained in the Central Jail, ' Sabarmati.
The detenu has been furnished with the copies of the grounds of detention and all other material documents inclusive of the statements of the wit nesses on the basis of which the detaining authority reached his subjective satisfaction for passing this impugned order.
The sum and substance of the alleged activities of the detenu 185 mentioned in grounds of detention are that the detenu was indulging in criminal and anti social activities in the area of Dariyapur Kalupur of Ahmedabad city by illegally storing and selling foreign liquor and beer either personally or through his associates and that in this regard the following four cases were registered under the provisions of the Bombay Prohibition Act of 1949.
We reproduce that relevant portion giving the details of the cases as found in the grounds of detention: Sr.
No. Police CR No. Section Qty Disposals Station Seized 1 Kalupur 130/88 Prov.
66(B) 8 Ltr.
beer Pending in court 2.
Kalupur 152/88 500 ML beer order pending 3.
Kalupur 156/88 268 bottle Pending in foreign and Court 122 bottle box 4.
Dariyapur 80/88 Prov.
66(B) foreign order pending 65(A)81 liquor From the above materials, the detaining authority has concluded that the detenu was a bootlegger within the mean ing of Section 2(b) of the Act.
It is further stated that the detenu besides indulging in the activities of bootlegging, he and his companions were creating terror in that area by beating innocent people in public in Ahmedabad city which in turn affected adversely the maintenance of public order.
Further it is stated that the detenu and his associates always armed with dangerous weapons like bombs, cartridges etc.
were threatening the people in the city of Ahmedabad in respect of which a case has been registered which is re produced as set out in the grounds of detention: section No. Police Station CR No. Section Disposal (1) Kalupur 2/88 IPC 307, 120(B) Under 212, Terrorist inquiry Act, Sec.
3(1)(3) 186 Explosive Sec. 4, 5 Arms Act; 25(1)(A)(c); Bombay Police Act 135(1) In addition to the above it is alleged that the detenu, being the main member of the gang of Abdul Latif Abdul Wahab Shaikh entered into a conspiracy to spread an atmosphere of fear and terror among the residents of that area and also a sense of insecurity among the people.
On the above materials, mentioned in the grounds of detention, the detaining authority has come to the conclu sion that the detenu is a 'dangerous person ' within the meaning of Section 2(c) of the Act.
Thus the detaining authority. has found that the detenu was not only a 'bootlegger ' but also a 'dangerous person ' within the definitions of Section 2(b) and 2(c) of the Act.
For drawing the above conclusion the detaining authority has also relied upon the statements of the witnesses whose names are not disclosed.
Assailing the legality of the impugned order the learned counsel appearing on behalf of the petitioner put forth several contentions one of which being that the conclusions drawn by the detaining authority that the detenu is a 'bootlegger ' as well as a 'dangerous person ' are not sup ported by the materials placed before him and that there is nothing to show that the activities of the detenu either affected or were likely, to affect adversely the maintenance of public order.
We shall now deal with the above contention in the light of the construction of the expressions 'bootlegger ' and 'dangerous person ' read with Section 3(4) of the Act with the explanation annexed thereto.
The expression "bootlegger" and "dangerous person" occurring in Section 2(b) and (c) of the Act read as fol lows: "2(b) "bootlegger" means a person who distills, manufac tures, stores, transports, imports, exports, sells or dis tributes any liquor, intoxicating drug or other intoxicant in contravention of any provision of the Bombay Prohibition Act, 1949 (Bom.
XXV of 1949) and the rules and orders made thereunder, or any other law for the time being in 187 force or who knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacle or any other material whatsoever in further ance or support of the doing of any of the things described above by or through any other person, or who abets in any other manner the doing of any such thing; 2(c) "dangerous person" means a person, who either, by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences, punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code, (XLV of 1860), or any of the offences punishable under Chapter V of the (54 of 1959).
" To bring the detenu herein within the definition of Section 2(b) of the Act, four cases are made mention of in the grounds of detention which we have already extracted.
All the four cases were registered in the year 1988.
The trials in respect of two of the four cases were pending before the Court and in respect of the other two, the orders were pending.
Notwithstanding the result of those cases and the quantity of liquor seized from the detenu, we shall examine the legality of the detention order, in the ensuing part of this judgment, even assuming that the detenu is a 'bootlegger ' within the ambit of Section 2(b) of the Act.
For the conclusions drawn by the detaining authority that the detenu was a 'dangerous person ' as defined under Section 2(c) of the Act, the detaining authority has taken into consideration the registration of a case in crime number 2/88 in Kalupur police station.
Added to that, it is generally stated in the grounds of detention that the detenu and his associates were beating the people in public and that the detenu had entered into a conspiracy to spread an atmosphere of fear and terror in the city of Ahmedabad city being the main member of the gang of Abdul Latif Abdul Wahab Shaikh.
But no specific instance is given either in the grounds of detention order or in any of the statements of the witnesses.
To bring a person within the definition of Section 2(c) of the Act it must be shown that the person either by him self or as a member of or a leader of a gang habitually commits or attempts to commit or abets the commission of offences punishable under Chapter XVI or XVII or XXII of the Indian Penal Code or any of the offences punishable under 188 Chapter V of the .
In the case registered in crime No. 2/88 in Kalupur police station, the detenu is said to have committed offences under Sections 307, 120 B, 212 of the Indian Penal Code and Section 25 of the besides under the provisions of various other Acts.
Though Section 307 falls under Chapter XVI, the offences under Sections 120 B and 212 fall under Chapters VI and XI of the Indian Penal Code respectively.
Therefore, these two offences are not covered under Section 2(c).
The offence registered under Section 25 of the falling under Chapter V of the said Act is included within the said definition clause.
But what the section requires is that to bring a person within that definition, it must be shown that he is habitually committing or attempting to commit or abetting the commis sion of offences enumerated therein.
In the instant case, the registration of only one case is mentioned under the provisions of Section 307 of IPC and 25 of the falling within the said definition clause.
Therefore, this solitary incident would hardly be sufficient to conclude that the detenu was habitually committing or attempting to commit or abetting the commission of offences.
The general and vague allegations made in the grounds of detention that the detenu was taking active part in communal riots and entered into conspiracy to spread an atmosphere of terror being a member of the gang of Abdul Latif Abdul Wahab Shaikh in the absence of any specific instance or registration of any case thereof, cannot be construed as offences falling under any of the above three chapters of the IPC or Chapter V of the enumerated under Section 2(c) so as to characterise the detenu as a 'dangerous person '.
Hence we are of the view that the conclusions drawn by the detaining authority that the detenu is a dangerous person is bereft of sufficient material as required under Section 2(c).
Therefore, we hold that the detenu cannot be termed as a 'dangerous person '.
No doubt as per Section 6 of the Act, grounds of deten tion are severable and as such the order of detention should not be deemed to be invalid or inoperative if one or some of the grounds are invalid.
In the present case, the question for consideration is that even if the impugned order cannot be sustained on the ground that the detenu is a 'dangerous person ', can it be sustained on the other ground that the detenu is a 'bootlegger '.
The answer is that the order could be sustained, provided there are materials to show that the bootlegging activities of the detenu affected adversely or were likely to affect the maintenance of public order.
A conjoint reading of Section 2(b) and Section 3(4) with the explanation annexed thereto clearly spells out 189 that in order to clamp an order of detention upon a 'boot legger ' under Section 3 of the Act, the detaining authority must not only be satisfied that the person is a bootlegger within the meaning of Section 2(b) but also that the activi ties of the said bootlegger affect adversely or likely to affect adversely the maintenance of public order.
Reverting to the facts of this case, the vague allegations in the grounds of detention that the detenu is the main member of the gang of Abdul Latif Abdul Wahab Shaikh indulging in bootlegging activities and that the detenu is taking active part in such dangerous activities, are not sufficient for holding that his activities affected adversely or were likely to affect adversely the maintenance of public order in compliance with subSection 4 of Section 3 of the Act that the activities of the detenu have caused harm, danger or alarm or a feeling of insecurity among the general public or any Section thereof or a grave or widespread danger to life, property or public health as per the explanation to Section 3(4).
The offences registered in the above mentioned four cases against the detenu on the ground that he was dealing in liquor have no bearing on the question of maintenance of public order in the absence of any other material that those activities of the detenu have adversely affected the mainte nance of public order.
There is a catena of decisions dealing with the question of 'maintenance of public order '.
But we think that it will be sufficient to make reference to the following two deci sions.
This Court in Ashok Kumar vs Delhi Administration, [1982] SCC 403 has observed: "It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order." In a recent decision of this Court in Piyush Kantilal Mehta vs The Commissioner of Police, Ahmedabad City and Anr., Judgments Today 1988 (4) 703 a question similar to one before us arose for consideration.
In that case, the allega tions in the grounds of detention were that the detenu was a prohibition bootlegger, that he was indulged into the sale of foreign liquor and that he and his associates indulged in use of force and violence and also beating innocent citizens by which an atmosphere of fear was created.
In that case the detenu was alleged to have been caught red handed possessing English wines with foreign marks and in the second occasion he was caught while shifting 296 190 bottles of foreign liquor in an Ambassador car.
While deal ing with that case, this Court observed as follows: "It is true some incidents of beating by the petitioner had taken place, as alleged by the witnesses.
But, such inci dents, in our view, do not have any bearing on the mainte nance of public order.
The petitioner may be punished for the alleged offences committed by him but, surely, the acts constituting the offences cannot be said to have affected the even tempo of the life of the community.
It may be that the petitioner is a bootlegger within the meaning of Section 2(b) of the Act, but merely because he is a bootlegger he cannot be preventively detained under the provisions of the Act unless, as laid down in sub section (4) of Section 3 of the Act, his activities as a bootlegger affect adversely or are likely to affect adversely the maintenance of public order.
" The above observation, in our view, will be squarely applicable to the facts of this case, in view of the rea sons, we have already adverted to in the earlier portion of this judgment.
Hence for all the reasons aforesaid, we allow the Writ Petition and quash the impugned order of detention and direct the detenu to be set at liberty forthwith.
T.N.A. Petition allowed.
| The appellant is the successor in interest of the mort gagor of the suit property.
The suit property was mortgaged on 22.5.1886.
In the normal course the suit for redemption should have been filed on or before 22.5.1946, the limita tion for such a suit being 60 years under the Limitation Act, 1906.
The appellant, however, filed the suit for re demption only on 28.12.1968.
The defence to the plea of limitation urged was that the son of the original mortgagee, while selling the property on 1.11.
1913, had specifically acknowledged the right of the mortgagor to redeem the property.
It was claimed that this acknowledgment constitut ed a fresh starting point for computing the period of limi tation.
The Trial Court accepted the plea and granted decree for redemption.
The Additional District Judge however ac cepted the appeal of the respondents.
The High Court, in appeal, confirmed the order of the Additional District Judge and held that the sale deed had nowhere acknowledged the right of the mortgagor to redeem the land.
Before this Court, it was contended on behalf of the appellant that the recital in the sale deed clearly con tained a specific acknowledgment by the mortgagee of a subsisting right of redemption in the mortgagor.
On the other hand, it was contended that the said recital did not serve as an acknowledgment.
It was further urged by the respondents that even otherwise the suit should have been filed within 7 years of the coming into force of the Limita tion Act, 1963, i.e., on or before 1.4.1971, and that it was actually instituted only on 18.4.1973.
Allowing the appeal, setting aside the orders of the Additional District Judge and the High Court, and restoring the decree for redemption passed by the Trial Court, this Court, 611 HELD: (1) The period of limitation cannot be extended by a mere passing recital regarding the factum of the mortgage but the statement on which the plea of an acknowledgment is based must relate to a subsisting liability.
The words used must indicate the jural relationship between the parties and it must appear that such a statement is made with the inten tion of admitting such jural relationship.
[613G 6 14A] Tilak Ram vs Nathu, AIR 1967 S.C. 935, referred to.
(2) In the instant case, it is not correct to treat the recitals in the document as a mere narration of the previous mortgage that had been created on the property.
The words spell out a clear intention that the moneys due under the mortgage still remained unpaid and also that the mortgagor had a subsisting right of redemption which he could enforce against the mortgagee.
[614E F] (3) In the Trial Court the plaintiff appellant had adverted to the provisions of the and the position that the suit should have been filed within 7 years of the application of the new Act, and had urged that the suit was within time.
The Trial Court had accepted the contention of the plaintiff appellant on this point.
It could not have been so accepted if the suit had in fact been instituted only in 1973.
In the cause title of the suit in the Trial Court the date of institution is set out as 28.12.1968/18.4.1973.
This position does not appear to have been specifically challenged either in the Trial Court or in the first Appellate Court.
The High Court in its judgment has pointed out that the suit had been filed on 28th of December, 1968.
In this state of the record, this Court has to proceed on the basis that the suit had been filed on 28th of December, 1968 and therefore to hold that the suit had been filed in time.
[615B C]
|
No. LIX of 1949.
Appeal from the judgment of the Allahabad High Court (Verma and Yorke JJ.) dated 6th September, 1943 in First Appeal No. 3 of 1940.
P.L. Banerjee (B. Banerjee, with him), for the appel lant.
768 S.P. Sinha (N.C. Sen, with him), for the respondents.
November 14.
The court delivered judgment as follows : MUKHERJEA J.
This appeal is directed against an appel late judgment of a Division Bench of the Allahabad High Court dated September 6, 1943, by which the learned Judges reversed a decision of the Civil Judge, Etawah, made in Original Suit No. 28 of 1936.
The suit was one commenced by the plaintiff, who is respondent No. 1 in this appeal, for recovery of possession of two items of immovable property one, a residential house and other, a shop both of which are situated in the town of Etawah.
The properties admittedly formed part of the estate of one Mangal Sen who died sometime towards the end of the last century, leaving behind him, as his heirs, his two widows, Mst.
Mithani and Mst.
Mangal Sen had a son named Chhedi Lal and a daughter named Janki Kuar born of his wife Mst.
Rani, but both of them died during his lifetime.
Chhedi Lal had no issue and he was survived by his widow Mst.
Meria,while Janki left a son named Thakur Prasad.
Janki 's husband married another wife and by her got a son named Babu Ram.
On Mangal Sen 's death, his properties devolved upon his two widows, and Mst.
Rani having died subsequently, Mst.
Mithani came to hold the entire estate of her husband in the restricted rights of a Hindu widow.
On 27th November 1919, Mst.
Mithani surrendered the whole estate of her husband by a deed of gift in favour of Thakur Prasad who was the nearest reversioner at that time.
Thakur Prasad died in 1921, leaving a minor son named Nand Lal who succeeded to his properties and this Nand Lal is the plain tiff in the suit out of which this appeal arises.
On 27th October 1921, there was a transaction entered into between Babu Ram on his own behalf as well as guardian of infant Nand Lal on the One hand and Mst.
Meria, the widow of Chhedi Lal, on 769 the other, by which two items of property which are the subject matter of the present litigation were conveyed to Meria by a deed of transfer which has been described as a Tamliknama; and she on her part executed a deed of relin quishment renouncing her claims to every portion of the estate left by Mangal Sen.
It is not disputed that Meria took possession of the properties on the basis of the Tam liknama and on 10th April 1923 she executed a will, by which these properties were bequeathed to her three nephews, who are the sons of her brother Sunder Lal.
Meria died on 19th June 1924.
One Ram Dayal had obtained a money decree against Sunder Lal and his three sons, and in execution of that decree the properties in suit were attached and put up to sale and they were purchased by Ram Dayal himself on 30th January 1934.
On 1st June 1936, the present suit was insti tuted by Nand Lal and he prayed for recovery of possession of these two items of property on the allegation that as they were given to Mst.
Meria for her maintenance and resi dence, she could enjoy the same only so long as she lived and after her death, they reverted to the plaintiff.
Sunder Lal, the brother of Meria, was made the first defendant in the suit, and his three sons figured as defendants Nos.
2 to 4.
Defendant No. 5 is a lady named Chimman Kunwar in whose favour Sunder Lal was alleged to have executed a deed of transfer in respect of a portion of the disputed proper ty.
Ram Dayal, the decree holder auction purchaser, died in May 1935 and his properties vested in his daughter 's son Ram Gopal under a deed of gift executed by him in favour of the latter.
On 1st September 1938, Ram Gopal was added as a party defendant to the suit on the plaintiff 's application and he is defendant No. 6.
The two other defendants, namely, defendants 7 and 8, who were also made parties at the same time, are respectively the widow and an alleged adopted son of Ram Dayal.
The suit was contested primarily by defendant No. 6, and the substantial contentions raised by him in his written statement were of a two fold character.
770 The first and the main contention was that Mst.
Meria got an absolute title to the disputed properties on the strength of the 'Tamliknama ' executed in her favour by the guardian of the plaintiff and after her death, the properties passed on to the three sons of Sunder Lal who were the legatees under her will.
Ram Dayal, it was said, having purchased these properties execution of a money decree against Sunder Lal and his three sons acquired a valid title to them.
The other contention raised was that the suit was barred by limitation.
The trial Judge decided both these points in favour of the contesting defendant and dismissed the plain tiff 's suit.
On appeal to the High Court, the judgment of the Civil Judge was set aside and the plaintiff 's suit was decreed.
The defendant No. 6 has now come up on appeal to this court and Mr. Peary Lal Banerjee, who appeared in support of the appeal, pressed before us both the points upon which the decision of the High Court has been adverse to his client.
The first point raised by Mr. Banerjee turns upon the construction to be placed upon the document executed by Babu Ram on his own behalf as well as on behalf of Nand Lal then an infant, by which the properties in dispute were trans ferred to Mst.
Meria by way of a 'Tamliknama '.
The question is whether the transferee got, under it, an absolute inter est in the properties, which was heritable and alien able or was it the interest of a life tenant merely.
The documentis by no means a complicated one.
It begins by a recital of the events under which Nand Lal became the sole owner of the properties left by Mangal Sen and refers in this connection to the obligation on the part of both Babu Ram and Nand Lal to "support, maintain and console" Mst.
Meria, the widow of the pre deceased son of Mangal Sen.
The document then proceeds to state as follows: "I have therefore, of my own accord and free will without any compulsion or coercion on the part of any one else while in my proper senses made a Tamlik of a double storied pucca built shop . and a house 771 and a kothri in Etawah . . worth Rs. 8,000 for purposes of residence of the Musammat, owned by the minor aforesaid . which at present stands let out on rent to Sunder Lal, brother of Mst.
Meria aforesaid . . in favour of Mst.
Meria aforesaid, widow of Chhedi Lal and made her the owner (Malik).
If any portion or the whole of the property made a Tamlik of for the purpose mentioned above passes out of the possession of the Musammat aforesaid on account of the claim of Nand Lal minor aforesaid, I and my property of every sort shall be responsible and liable for the same.
" This document has got to be read along with the deed of relinquishment, which is a contemporaneous document execut ed by Meria renouncing all her claims to the property left by Mangal Sen.
The deed of relinquishment like the Tamliknama recites elaborately, with reference to previous events, particularly to the deed of gift executed by Mst.
Mithani in favour of Thakur Prasad, the gradual devolution of the entire estate of Mangal Sen upon Nand Lal.
It states thereafter that Babu Ram, as the guardian of the minor and also in his own right, "has under a Tamliknama dated this day made a 'Tamlik '.
in my favour of a shop alongwith a Balakhana and a kota for my maintenance and a house . . for purpose of my residence which are quite sufficient for my maintenance." "I have therefore, of my own accord ", the document goes on to say, "made a relinquishment of the entire property aforesaid mentioned in the deed of gift . worth Rs. 25,000.
I do covenant and do give in writing that I have and shall have no claim to or concern with the property . . belonging to the minor afore said, nor has the property aforesaid remained subject to my maintenance allowance nor shall I bring any claim at any time.
" The schedule to the instrument, it may be noted, gives a list of all the properties of Mangal Sen in respect to which Mst.
Mithani executed a deed of gift in favour of Thakur Prasad, including the two items of property covered by the 'Tamliknama ' mentioned aforesaid.
772 In construing a document whether in English or in vernacular the fundamental rule is to ascertain the inten tion from the words used; the surrounding circumstances are to be considered, but that is only for the purpose of finding out the intended meaning of the words which have actually been employed(1).
In the present case the instru ment of grant has been described as a 'Tamliknama ' which means a document by which ' Maliki ' or ownership rights are transferred and the document expressly says that the grantee has been made a ' Malik ' or owner.
There are no express words making the gift heritable and transferable; nor on the other hand, is there any statement that the transferee would enjoy the properties only during her life time and that they would revert to the grantor after her death.
It may be taken to be quite settled that there is no warrant for the proposition of law that when a grant of an immovable property is made to a Hindu female, she does not get an absolute or alienable interest in such property, unless such power is expressly conferred upon her.
The reasoning adopted by Mr. Justice Mitter of the Calcutta High Court in Kollani Koer vs Luchmee Parsad(2) which was ap proved of and accepted by the Judicial Committee in a number of decisions, seems to me to be unassailable.
It was held by the Privy Council as early as in the case of Tagore vs Tagore( '3) that if an estate were given to a man without express words of inheritance, it would, in the absence of a conflicting context, carry, by Hindu Law, an estate of inheritance.
This is the general principle of law which is recognised and embodied in section 8 of the Transfer of Property Act and unless it is shown that under Hindu Law a gift to a female means a limited gift or carries with it the restrictions or disabilities similar to those that exist in a 'widow 's estate ', there is no justification for departing from this principle.
There is certainly no such provision in Hindu Law and no text could be supplied in support of the same.
(1) Vide Rajgndra Prasad vs Gopal Prasad.
57 I.A. 296.
(2) (3) L.R.I.A. Supp.
47 at 65.
773 The position, therefore, is that to convey an absolute estate to a Hindu female, no express power of alienation need be given; it is enough if words are used of such ampli tude as would convey full rights of ownership.
Mr. Banerjee naturally lays stress upon the description of the document as 'Tamliknama ' and the use of the word ' Malik ' or owner in reference to the interest which it pur ports to convey to the transferee.
The word ' Malik ' is of very common use in many parts of India and it cannot cer tainly be regarded as a technical term of conveyancing.
In the language of the Privy Council, the term 'Malik ' when used in a will or other document "as descriptive of the position which a devisee or donee is intended to hold, has been held apt to describe an owner possessed of full pro prietory rights, including a full right of alienation, unless there is something in the context or in the surround ing circumstances to indicate that such full proprietory rights were not intended to be conferred(1). ' ' This I think to be a perfectly correct statement of law and I only desire to add that it should be taken with the caution which the Judicial Committee uttered in course of the same observa tion that "the meaning of every word in an Indian document must always depend upon the setting in which it is placed, the subject to which it is related and the locality of the grantor from which it receives its true shade of meaning.
" The question before us, therefore, narrows down to this as to whether in the present case there is anything in the context of these two connected instruments or in the sur rounding circumstances to cut down the full proprietory rights that the word 'Malik ' ordinarily imports.
The High Court in reaching its decision adverse to the appellant laid great stress on the fact that the grant was expressed to be for maintenance and residence of Mst.
Meria.
This, it is said, would prima facie indicate that the grant was to enure for the lifetime of the grantee.
It is pointed out by the learned (1) Vide Sasiman Chowdhurain vs Shib Narayan, 49 I.A, 25.
99 774 Judges that the language of the document does not show that anybody else besides the lady herself was to be benefited by the grant and the indemnity given by Babu Ram was also given to the lady personally.
It is further said that if Meria was given an absolute estate in the properties comprised in the 'Tamliknama ', there was no necessity for including these two properties again in the deed of relinquishment which she executed at the same time.
I do not think that the mere fact that the gift of property is made for the support and maintenance of a female relation could be taken to be a prima facie indication of the intention of the donor, that the donee was to enjoy the property only during her life time.
The extent of interest, which the donee is to take, depends upon the intention of the donor as expressed by the language use, d, and if the dispositive words employed in the document are clear and unambiguous and import absolute ownership, the purpose of the grant would not, by itself, restrict or cut down the interest.
The desire to provide maintenance or residence of the donee would only show the motive which prompted the donor to make the gift, but it could not be read as a meas ure of the extent of the gift.
This was laid down in clear terms by the Judicial Committee in a comparatively recent case which is to be found reported in Bishunath Prasad vs Chandrika(1).
There a Hindu executed a registered deed of gift of certain properties in favour of his daughter in law for the" support and maintenance" of his daughter in law and declared that the donee should remain absolute owner of the property (malik mustaqil) and pay Government revenue.
There were no words in the document expressly making the interest heritable or conferring on the donee the power of making alienation.
It was held by the Judicial Committee that the donee took under the document, an absolute estate with powers to make alienation giving title valid after her death.
In course of the judgment, Lord Blanesburgh quoted, with approval, an earlier decision of the (1) 60 I.A 56 775 Judicial Committee, where the words "for your maintenance" occurring in a deed of gift were held insufficient to cut down to life interest the estate taken by the donees.
These words, it was said, "are quite capable of signifying that the gift was made for the purpose of enabling them to live in comfort and do not necessarily mean that it was to be limited to a bare right of maintenance.
" On behalf of the respondent, reliance was placed upon the decision of the Judicial Committee in Raja Ram Buksh vs Arjun(1)in support of the contention that in a maintenance grant it is the prima facie intention of the gift that it should be for life.
In my opinion, the decision cited is no authority for the general proposition as is contended for by the learned Counsel for the respondent, and it is to be read in the context of the actual facts of the case which relate to grants of a particular type with special features of its own.
It was a case where a Talukdar made a grant of certain villages to a junior member of the joint family for mainte nance of the latter.
The family was governed by the law of primegeniture and the estate descended to a single heir.
In such cases the usual custom is that the junior members of the family, who can get no share in the property, are enti tled to provisions by way of maintenance for which assign ments of lands are generally made in their favour.
The extent of interest taken by the grantee in the assigned lands depends entirely upon the circumstances of the partic ular case, or rather upon the usage that prevails in the particular family.
In the case before the Privy Council there was actually no deed of transfer.
It was an oral assignment made by the Talukdar, and the nature of the grant had to be determined upon the recitals of a petition for mutation of names made to the Revenue Department by the grantor after the verbal assignment was made and from other facts and circumstances of the case.
The case of Woodoya ditta Deb vs Mukoond(2), which was referred to and relied upon in the judgment of the Privy Council, was (1) 28 I.A, 1.
(2) 22 w.
R. 229.
776 also a case of maintenance or khor phos grant made in favour of a junior member of the family, where theestate was im partible and descended under the rules of primogeniture.
It was held in that case that such grants, the object of which was to make suitable provisions for the immediate members of the family, were by their very nature and also under the custom of the land resumable by the zemindar on the death of the grantee, as otherwise the whole zemindary would be swallowed up by continual demands.
This principle bas obviously no application to cases of the type which we have before us and it was never so applied by the Privy Council, as would appear from the decision referred to above.
The learned Counsel for the plaintiff respondent drew our attention in this connection, to the fact that the properties given by the ,Tamliknama ' were valued at Rs. 8,000, whereas the entire estate left by Mangal Sen was worth Rs. 25,000 only.
It is argued that the transfer of nearly one third of the entire estate in absolute right to one who was entitled to maintenance merely, is, on the face of it, against probability and common sense.
I do not think that, on the facts of this case, any weight could be at tached to this argument.
In the first place, it is to be noted that whatever might have been the actual market value of the properties, what the widow got under the Tamliknama was a residential house and a shop, and the shop was the only property which fetched any income.
This shop, it appears, was all along in possession of Sunder Lal, the brother of Meria, and the rent, which he paid or promised to pay in respect of the same, was only Rs. 12 a month.
So from the income of this property it was hardly possible for Meria to have even abate maintenance, and this would rather support the inference that the properties were given to her absolutely and not for enjoyment merely, so long as she lived.
But what is more important is, that the object of creating these two documents, as the surrounding circumstances show, was not merely to make provision 777 for the maintenance of Mst.
Meria; the other and the more important object was to perfect the title of Nand Lal to the estate left by Mangal Sen and to quiet all disputes that freight arise in respect of the same.
It may be that Mst.
Meria could not, in law, claim any.
thing more than a right to be maintained out of the estate of her deceased father in law.
But it is clear that whatever her legal rights might have been, Nand Lal 's own position as the sole owner of the properties left by Mangal Sen was not altogeth er undisputed or free from any hostile attack.
As has been said already, Sunder Lal, the brother of Meria, was in occupation of the double storied shop from long before the Tamliknama was executed and Meria got any legal title to it.
It appears from the record that in 1920 a suit was institut ed on behalf of the infant Nand Lal for evicting Sunder Lal from the shop and the allegation in the plaint was that Sunder Lal was occupying the property as a tenant since the time of Mst.
Mithani by taking a settlement from her.
Sunder Lal in his written statement filed in that suit expressly repudiated the allegation of tenancy and also the title of Nand Lal and openly asserted that it was Mst.
Meria who was the actual owner of Mangal Sen 's estate.
The suit ended in a compromise arrived at through the medium of arbitrators and the result was that although Sunder Lal admitted the title of the plaintiff, the latter had to abandon the claims which were made in the plaint for rents, costs and damages.
Sunder Lal continued to be in occupation of the shop and executed a rent agreement in respect of the same in favour of Nand Lal promising to pay a rent of Rs. 12 per month.
A few months later, the Tamliknama was executed and this shop along with the residential house were given to Meria in maliki right.
The recitals in both the Tamliknama and the deed of relin quishment clearly indicate that the supreme anxiety on the part of Babu Ram, who was trying his best to safeguard the interests of the minor, was to put an end to all further disputes that might be raised by or on behalf of Mst.
Meria with regard to the rights of Nand Lal to the properties 778 of Mangal Sen and to make his title to the same absolutely impeccable.
That seems to be the reason why Meria was given a comparatively large portion of the properties left by Mangal Sen which would enable her to live in comfort and her interest was not limited to a bare right of mainte nance.
It is significant to note that the shop room, which was all along in possession of Sunder Lal, was included in this Tamliknama and soon after the grant was made, Sunder Lal executed a rent agreement in respect of the shop in favour of Mst.
Meria acknowledging her to be the owner of the property.
It is true that the document does not make any reference to the heirs of Meria, but that is not at all necessary, nor is it essential that any express power of alienation should be given.
The word "Malik" is too common an expres sion in this part of the country and its meaning and impli cations were fairly well settled by judicial pronouncements long before the document was executed.
If really the grantee was intended to have only a life interest in the properties, there was no lack of appropriate words, per fectly well known in the locality, to express such inten tion.
The High Court seems to have been influenced to some extent by the fact that in the Tamliknama there was a guarantee given by Babu Ram to Meria herself and to no one else agreeing to compensate her in case she was dispossessed from the properties at the instance of Nand Lal.
This covenant in the document was in the nature of a personal guarantee given by Babu Ram to Mst.
Meria for the simple reason that the property belonged to an infant and it was as guardian of the minor that Babu Ram was purporting to act.
It was too much to expect that Babu Ram would bind himself for all time to come and give a guarantee to the future heirs of Meria as well.
Probably no such thing was contem plated by the parties and no such undertaking was insisted upon by the other side.
But whatever the reason might be which led to the covenant being expressed in this particu lar form, I do not think that it has even a remote bearing on the 779 question that arises for our consideration in the present case.
It is of no assistance to the plaintiff in support of the construction that is sought to be put upon the , docu ment on his behalf.
I am also not at all impressed by the other fact re ferred to in the judgment of the High Court that if the properties were given to Meria in absolute right, there was no necessity for including them again in the schedule to the deed of relinquishment which Meria executed.
I fail to see how the inclusion of the properties in the deed of relin quishment would go to indicate that Meria 's rights to these properties were of a restricted and not an absolute charac ter.
It is after all a pure matter of conveyancing and the two documents have to be read together as parts of one and the same ' transaction.
Under the ' Tamliknama ', Meria got two properties in absolute right out of the estate of Mangal Sen.
By the deed of relinquishment, she renounced her claim for maintenance in respect of all the properties left by Mangal Sen including the two items which she got under the 'Tamliknama '.
After the ' Tamliknama ' was executed in her favour, there Was no further question of her claiming any right of maintenance in respect of these two items of property.
She became the absolute owner thereof in exchange of her rights of maintenance over the entire estate and this right of maintenance she gave up by the deed of relinquish ment.
On a construction of the entire document, my conclu sion is that there is nothing in the context of the docu ment, or in the surrounding circumstances which would dis place the presumption of full proprietory rights which the use of the word "Malik" is apt ordinarily to convey.
The first contention of the appellant, therefore, succeeds and in view of my decision on this point, the second question does not arise for determination at all.
The result is that the appeal is allowed, the judgment and decree of the High Court are set aside and those of the trial Judge restored.
The defendant No. 6 will have his costs from the plaintiff in all the courts.
There will be no order for costs as regards the other parties: 780 FAZL ALI J.
I agree with the judgment delivered by my learned brother, Mukherjea J. CHANDRASEKHARA AIYAR J.
During the hearing of the appeal I entertained doubts whether the view taken by the High Court was not correct.
But on further consideration, I find that it cannot be maintained, having regard to the terms of the ' Tamliknama ' (deed of transfer) in favour of Musammat Meria and the context in which it came into exist ence.
The name of the document or deed does not very much matter.
Though the word ' malik ' is not a term of art, it has been held in quite a large number of cases, decided mostly by the Judicial Committee of the Privy Council, that the word, as employed in Indian documents, means absolute owner and that unless the context indicated a different meaning, its use would be sufficient to convey a full title even without the addition of the words, ' heirs ', or ' son ', ' grandson ' and ' great grandson '.
Of course, if there are other clauses in the document which control the import of the word and restrict the estate to a limited one, we must give the narrower meaning; otherwise the word must receive its full significance.
Especially is this so, when the rule of interpretation laid down in Mohammed Shamsul vs Sewak Ram( ') has come to be regarded as unsound.
The language employed in the ' Tamliknama ' (exhibit II) is almost similar to the language of the deeds construed in Bhaidas Shivdas vs Bai Gulab & Another( '2) and Bishunath Prasad Singh vs Chandika Prasad Kumari and Others(s) where it was held that an absolute estate was conveyed.
I agree that the judgment and decree of the High Court should be set aside and that the decree of the trial Judge should be restored with costs to the appellant in all the Courts.
Appeal allowed.
| A decree was passed in a money suit against N and his four sons who were members of a Mitakshara Hindu joint family.
In execution of that decree the shares of the four sons in the joint family properties, described altogether as 4/5 th share, were put up for auction in December, 1936 and purchased by section N 's interest was not put up for sale as it was the subject matter of insolvency proceedings.
The sale to S was duty confirmed.
S sold the properties to P.
On November 6, 1939 an order was made under 0.
21 rr.
33(2) and 96 of the Code of Civil Procedure for delivery of joint possession of the properties purchase to P along with the members of the joint family already in possession.
This order was carried out and possession was delivered to P by publishing that fact by beat of drum as prescribed in the rules.
Subsequently P retransferred the properties to section On October 16, 1951 S filed a suit against the then members of the joint family and various alienees asking for a partition of the joint family properties into five equal shares and thereafter for possession of four of such shares by removing the defendants from possession.
The trial court decreed the suit but held that S was not entitled to a 4/5th share but only to a 2/3rd share because before the decree a 5th son had been born to N who had not been made a party to the suit or the execution proceedings and whose share had consequently not passed under the auction sale.
Some of the defendants filed an appeal to the High Court which allowed the appeal holding that the suit was barred by limitation under article 144 of Schedule 1 to the Limitation Act.
S had field a coss objection in the High.
Court on the ground that he should have been held entitled to a 4/5th share of the properties which was dismissed by the High Court without discussion of the merits in view of its decision on the question of limitation.
S having died the appellants as his successors in interest appealed to this Court under article 133 of the Constitution.
The two questions that arose for decision were (1) whether the suit was barred by limitation under article 144 or article 120 and (2) whether S was entitled to a 4/5th share.
HELD : (Per Sarkar and Raghubar Dayal, JJ.) (i) (a) 'Me view that the suit was barred under article 144 of the suit presented great difficulties.
The article obviously contemplates a suit for possession of property where the defendant might be in possession of it as against the plaintiff.
However, the purchaser of a copartner 's undivided interest in joint family property is not entitled to possession of what he has purchased.
His only right is to sue for partition of the property and ask for allotment to him of that which an partition might be found to fall to the share of the copartner whose share he has purchased.
His right to possession would date from the period when a specific allotment is made in his favour.[632 H] 629 S was therefore not entitled to possession till a partition had been made.
As possession of the defendants could tie adverse to him only if he was entitled to possession the difficulty in applying article 144 arose.
[633 B] Sidheshwar Mukherjee vs Bhubneshwar Prasad Narain, ; , relied on.
Vyapuri vs Sonamma Boi Ammani, Mad. 81, referred to.
Mahant Sudarsan Das vs Mahan Ram Kirpal Das, (1949) L.R. 77 I.A 42, distinguished.
(b) Even on the assumption that article 144 applied the suit was not barred.
In the present case the defendants were not in uninterrupted possession for twelve years as required by the Article.
By the delivery of symbolical possession under the order of November 6, 1939, the adverse possession of the defendants was interrupted.
Time had therefore to commence to run from that date, and the suit having been brought within twelve years of that date, it was not bared under that article.
[633 F G] Sri Radha Krishna Chanderji vs Ram Bahadur, A.I.R. (1917) P.C. 197, relied on.
It could not be said that the order of delivery of possession was a nullity though S and his transferee who had purchased an undivided share in copartners property were not entitled in law to any possession at all.
In making the order the learned Judge had gone wrong in law but he had acted within his jurisdiction.
Such an order has full effect if it is not set aside.
[634 A B] Yelumalai Chetti vs Srinivasa Chetti, Mad. 294, distinguished.
Mahadev Sakharam Parkar vs janu Namji Hatle, (1912) I.L.R. and fang Bahadur Singh vs Hanwant Singh All.
520, held inapplicable.
(ii) Article 120 applies to suits for which no period of limitation is provided elsewhere and prescribes a period of six years commencing from the date when the right to sue accrues.
[636 D] The right to sue accrues for the purpose of article 120 when there is an accrual of the right asserted in the suit and an unequivocal threat by the respondent to infringe it.
In the present case there was nothing to show that the right was ever challenged in any way by the respondents.
It was impossible therefore to hold that the suit was barred under article 120.
[636 F] Mst.
Rukhmabai vs Lala Laxminarayan, ; and C. Mohammad Yunus vs Syed Unnissa, ; , relied on.
Bai Shevantibai vs Janardan R. Warick, A.I.R. 1939 Bom.
322 disapproved in so far as it held that the right to sue accrued from the date of sale.
(iii) The cross objection had no merit.
What S purchased at the auction sale was the share of the sons of S then bom, in the joint family Properties.
At the date of the auction sale that share which was originally 4/5th had been reduced to 2/3rd by the birth of another son to N who had not been made a party either to the suit or the execution proceedings.
What was purchased at the execution sale was only the shares of the four elder sons of N and their share at the date of sale was 2/3rd.
That 630 being so S was not entitled to get the 1/6th share of the fifth son also allotted to him in the partition suit.
[637 B C] Per Ramaswami, J. : (i) The purchaser of a share of joint Hindu family property doe , not acquire any interest in the property he cannot claim to be put.
in possession of any definite place of Property.
A suit for partition filed by the alienee from a is not, in a technical sense, a suit for partition and such a suit have the necessary effect of breaking up the joint ownership of the members of the family in the joint family in the joint property nor the corporate character of the family.
Such being the rights of the alienee his right to sue for partition cannot be said to be a continuing right subject to no period of limitation for enforcing it.
[638 F H] Aiyyagari Venkataramayya vs Aivyagari Ramayya, I.L.R. 25 referred to.
(ii) Though the alienee of an undivided interest of a Hindu is not entitled to joint possession with other copartners or to separate possession of any part of the family property he is entitled to obtain possession of that part of the family property which might full to the share of his alienor at a partition.
[640 B] In the present case the alienee instituted a suit for general the prayer that he may be put in possession of that part of the family property which may be allotted to his share.
It is not right to such a suit as a suit for mere partition.
The main relief sought by the plaintiff is the relief of possession of that part of the property which may be allotted to the alienor 's share and a relief for partition is only a machinery for working out his right and ancillary to the main relief for possession of the property allotted to the alienor 's share.
what the plaintiff seeks is actual delivery of possession.
Such a suit falls within the of article 144 of the Limitation Act.
[640 B D] Thani vs Dakshinamurthy.
I.L.R. , appoved (iii) the possession of the non alieniting members of the family cannot be said to be possession on behalf of the alienee also because the purchaser alienee does not acquire in interest in the property sold and does not become tenant in common with the members of the family tier is he entitled to joint possession with them.
In the absence of clear acknowledgement of the right of the alienee or participation in the enjoyment of the family property by the alienee the possession of his alienors share.
The fact that the alienee has purchased an undivided interest is not inconsistent with the conception of adverse possession, of that interest.
[640 E H] Sudarsan Das vs Ram Kirpat Das, A.I.R. 1950 P.C. 44, reliel on.
According to the third column of article 144, time begins to run from the date when the possession of the defendant becomes adverse to the plaintiff.
In the present case, therefore, adverb possession bengon to run from the date of purchase of the undivided share i.e. front December 21.
[640 E; 641 FF] (iv) However the grant of symbolic possession bv the court in favour of P after notice to defendants 2 to 5 was tantamount in law to delivery of actual possession and therefore efficient to break up the continuity of adverse "scion in favour of the defendants.
Even assuming that the grant of symbolic possible ought not to have been made and that, 631 the executing court acted illegally in making such an order, it could not be argued that the executing court had no jurisdiction to make the order or that the act of symbolic possession was a nullity in the eye of law.
[642 B] Yelumalai Chetti vs Srinivasa Chetti,I.L.R. , referred Sri Radha Krishna ' Chanderii vs Ram Bahadur, A.I.R. 1917 P.C. 197, relied on.
According the suit of the plaintiff was no.t barred by limitation under ' article 144 of the Limitation Act and the view taken by the High Court on this part of the case was not correct.
[642 D]
|
Appeal No. 1985 of 1969.
Appeal from the judgment and order dated January 4, 1969 of the patna High Court in Civil Writ Jurisdiction case No. 520 of 1967.
M. C. Chagla, D. P. Singh and V. J. Francis, for the appellant.
L. M. Singhvi and U. P. Singh, for respondents Nos.
1 to 4.
4 14 The Judgment of the Court was delivered by SHAH, J.
This appeal is filed with certificate granted by the High Court of Patna under article 133 (1) (a) of the Constitution.
The appellant Hansraj Bagrecha carries on business in jute.
In the course of his business the appellant buys raw jute from producers in West Bengal, transports it to Kishanganj Railway Station (which is within the State of Bihar) and then re exports it to purchasers in West Bengal.
He also buys raw jute in Bihar and exports it to the merchants or mill owners in West Bengal by rail from Kishahganj Railway Station.
The Bihar Sales Tax Act 1959, as originally enacted did not provide for levy of purchase tax.
By the Bihar Finance Act, 1966, with effect from April 1, 1967, among others the following sections were incorporated in the Bihar Sales Tax Act, 1959 S.3A "The State Government may from tune to time, by notification declare any goods to be liable to purchase tax on turnover of purchase : Provided that general sales tax and special sales tax shall not be payable on the sale of goods or class of goods declared under this section.
" section 5A "The purchase tax on goods declared under section 3A shall be levied at the point of purchase made from a person other than a registered dealer.
" By a notification dated September 14, 1966 the Governor of Bihar declared 'jute ' as a commodity liable to purchase tax at the rate specified in the notification.
Section 42 of the Bihar Sales Tax Act by the first subsection provided : "No person shall transport from any railway station, steamer station, air port, post office or any other place, whether of similar nature or otherwise, notified in this behalf by the State Govt.
, any consignment of such goods, exceeding such quantity, as may be specified in the notification, except in accordance with such conditions as may be prescribed and such conditions shall be made with a view to ensuring that there is no evasion of tax payable under this Act.
" Section 46 of the Act invested the State Government with power to make rules for all matters expressly required or allowed by the Act to be prescribed and generally for carrying out the purposes of the Act and regulating the procedure to be followed, forms to 415 be adopted and fees to be paid in connection with proceedings under the Act and all other matters ancillary or incidental thereto.
In exercise of the powers conferred under s, 46 (1) the State of Bihar promulgated under Rules 31 B and 8C, Rule 31B, which provided "(1) No person shall tender at any railway station, steamer station, air port, post office or any other place, whether of similar nature or otherwise, notified under section 42, any consignment of such goods exceeding such quantity, as may be specified 'in the notification, for transport to any place outside the State of Bihar, unless such person has obtained a despatch permit in Form XXVIII D from the appropriate authority referred to in the Explanation to rule 31 and no person, shall accept such tender unless the said permit is surrendered to him." Rule 30(1) provided "The first purchase of goods declared under section 14 of the , shall be leviable to tax in terms of sections 3, 3A and 5A of the Act and no subsequent sales or purchases in respect of the said goods shall be liable to any tax under the Act." ' After the enactment of sections 3A and 5A the State Government issued.
a notification dated December 26, 1967 purporting to exercise power under section 42 of the Bihar Sales Tax Act, 1959 read with r. 31B of the Bihar Sales Tax Rules, 1959, notifying that no person shall tender at any railway station mentioned in Sch.
II, and consignment of goods mentioned in Sch.
I, exceeding the quantity specified for transport to any place outside the State of Bihar and no person shall accept such tender in accordance with the conditions prescribed in r. 31B of the Bihar Sales Tax Rules, 1959.
Under Sch.
I `Jute ' exceeding 800 Kg.
could not be tendered for transport without "a despatch pen nit", and Kishanganj was one of the Railway Stations mentioned in Sch.
In July 1967 the Superintendent of Commercial Taxes addres sed a letter prohibiting the railway authorities from loading jute goods and despatching them from any railway station within the Purnea District of Bihar, except on production of a "registration certificate".
By his letter dated July 10, 1967 the Station Master Kishanganj called upon the Secretary, Jute Merchants Association, Kishanganj, to produce a certificate as required in the letter of the Superintendent of Commercial Taxes, before "loading jute goods for despatch was commenced" and informed them that in default wagons allotted to the jute merchants shall be cancelled and 416 registration, fees, forfeited and that "demurrage" win be charged.
The appellants request that jute booked by him be despatched from.
Kishanganj was turned down by the railway authorities, because the registration certificate issued by the Superintendent of Commercial Taxes, Purnea for the movement of jute from the place was not produced.
The appellant then moved a petition before the High Court of Patna on August 29, 1967 challenging the validity of sections 3A, 5A, 42 and 46 and r. 31B of the Bihar Sales Tax Rules, 1959.
The High Court of Patna dismissed the petition.
With certificate granted by the High Court this appeal has been preferred by the appellant.
In support of the appeal counsel for the appellant raised three contentions : (1) that sections 3A & 5A as incorporated 4th Finance Act of 1966 infringed the guarantee of freedom of trade under article 301 of the Constitution and since the amendment made by the Finance Act, 1966 did not receive the assent of the President under article 304(b) the amendment was not saved; (2) that sections 3A & 5A and r. 8C "were contrary to" section 15 of the and were void on that account; and (3) that r. 31B framed by the State Government and the notification issued on December 26, 1967 were unauthorised and liable to.
be struck down.
Article 301 of the Constitution guarantees freedom of trade, commerce and intercourse throughout the territory of India.
By article 302 the Parliament is authorised by law to impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory ofIndia as may be required in the public interest.
article 303(1) imposes restrictions upon the power which the Parliament or the Legislature of a State may exercise to make any law giving, or authorising the giving of, any preference to one State over another, or making or authorising the making of, any discrimination between one State and another, by virtue of any entry relating to trade and commerce in any of the Lists in the Seventh Schedule.
But that clause does not operate to restrict the power of the Parliament to make any law giving, or authorise the giving of, any preference or making or authorising the making of, any discrimination, if it is declared by such law that it is necessary to do so for the purpose of dealing with a situation arising from 417 scarcity, of in, any part of, the territory of India Art 303 (2).
article 304 provides in so far as it is relevant "Notwithstanding anything in article 301 :or article 303, the Legislature of a State may by law (a) (b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest Provided that no Bill 'or amendment for the purpose of clause (b) shall be introduced or moved in the pose Legislature, of a State without the Previous sanction of the President.
" article 304 is in terms a restriction on the freedom guaranteed by article 301.
Notwithstanding the amplitude of, the freedom of trade, commerce and intercourse throughout the territory of India, the Legislature of a State may by law impose, among others such reasonable restrictions on the,, freedom of trade,, cow or intercourse with or within that State as may be required in the public interest.
But that authority to impose reasonable, restrictions on the freedom of trade, may only be, exercised by the Legislature of a State if the Bill or amendment for the Purpose of cl.
(b) is introduced or moved in the Legislature of a State with the previous sanction of the President.
It was contended that since section 3A providing for the of purchase tax imposes a restriction on the freedom of trade,, commerce and intercourse and on that account violates the freedom of trade guaranteed by article 301, it way be saved only if it is legislation of the nature contemplated by article 304(b) and the Bill which was enacted into the Act received the previous assent of the President.
The assumption that the levy of purchase tax must be deemed in all circumstances, to violate the .
guarantee under article 30 1, and the levy will be valid only, if the Act is enacted by the State Legislature with the previous sanction of the President, cannot be accepted 'as correct.
This Court in The State of Madras vs N. K. Nataraja Mudaliar(1) examined the validity of laws which impose taxes on sale in the: light of article 301.
It was observed at p. 839 "This Article (article 301) is couched in terms of the widest amplitude, trade, commerce and, intercourse am thereby declared free and unhampered, throughout the story of India.
The freedom of trade (1) ; so declared is against the imposition of barriers or obstructions within the state as well as inter State all restrictions which directly and immediately affect the movement of trade are, declared by Art 301 to in effective.
The extent to which article 301 operates to make trade.
and commerce free has been considered by this Court in several cases In Atiabari Tea Co. Ltd. vs, The State of Assam and others(1) Gajendragadkar, speaking for himself and Wanchoo and Das Gupta JJ., observed at p. 860 ". . we think it, would be reasonable and proper to hold that restrictions, freedom from which is guaranteed by art 301 would be such restrictions as,directly and immediately restrict or impede the free flow or movement of trade." "In Automobile Transport (Rajasthan) Ltd vs The State of Rajasthan and others(2) the view expressed by Gajendragadkar, J., in Atiabari Tea Co 's case was accepted by the majority.
Subba Rao, J., who agreed with the majority observed that the freedom declared under article 301 of the Constitution of India referred to the right of free movement of trade without any obstructions by way of barriers, inter State or intra State, or other impediments operating as such barriers.
The same view was expressed in Firm A.T.B. Mehtab Majid and Company vs State of Madras and Another(3) by a unanimous Court.
It must be taken as settled law that the restrictions or impediments which directly and immediately impede or hamper the free flow of trade commerce and intercourse fall within the prohibition imposed by article 301 and subject to the other provisions of the Constitution they may be regarded as void.
But it is said that by imposing tax on sales, no restriction hampering trade is imposed.
In the Atiabari Tea Company 's case, Gajendragadkar, J., observed: "Taxes may and do amount to restrictions; but it is only such taxes as directly and immediately restrict trade that would fall within the purview of article 30 1.
The argument that all taxes should be governed by article 301 whether or not their impact on trade is immediate or mediate, direct or remote, adopts, in our opinion, an extreme approach which cannot be upheld.
" In a recent judgment of this Court in The Andhra Sugars Ltd. and Another vs The State of Andhra Pradesh.
and others(4) (1) ; (3)[1963] 1 S.C.R. 491.
(2)[1963] Supp.
2 section C. R 435.
(4) 21 S.T.C. 212 419 Bachawat, J., speaking for the Court after referring to, the observations made by Gajendragadkar, J., in Atiabari Tea Company 's case(1) observed "This interpretation of Article 301 was not dissented from in Automobile Transport (Rajasthan) Ltd. vs State of Rajasthan (2) .
Normally, a tax on sale of goods does not directly impede the free movement or transport of goods.
Section 21 is no exception.
it does not impede the free movement or transport of goods and is not violative of Article 301.
" Section 21 of the Andhra Pradesh Sugar Cant (Regulation of Supply and Purchase) Act which was referred to in the judgment authorised the State Government to levy a tax at such rate, "not exceeding five rupees per metric tonne as may be prescribed on the purchase of cane required for use, consumption or sale in a factory.
It must, therefore, be regarded as settled law that a tax may in certain cases directly and immediately restrict or hamper the flow of trade, but every imposition of tax does.
not do so.
" Imposition of tax of the nature of purchase tax does not by itself restrict freedom of trade, commerce or intercourse.
Imposition of tax may in certain circumstances impede free flow oftrade, commerce or intercourse.
But every tax doesn 't have that effect.
Imposition of a purchase tax by the State does not by itself infringe the guarantee: of freedom under Art.301.
The argument that imposition of sales or purchase tax must be regarded in all cases as infringing the guarantee of freedom under article 301 cannot be accepted as correct.
The appellant filed the petition out of which their appeal arises soon after the Station Master informed the Jute Merchants Association about his inability to book consignments of jute.
He has made no averments in the petition which support the plea that imposition of purchase tax "directly and immediately restricts or impedes" the free flow of trade.
Since power to impose purchase tax under section 3A on notified goods is not shown to restrict or impede the free flow of trade directly and immediately, it need not seek to derive, for its validity, support from article 304(b).
The contention that sections 3A & 5A are inconsistent with section 15 of the is without substance.
By section 14 of 'the ' certain classes of goods are declared goods of special importance in inter State trade or commerce.
Jute is one of such classes of goods.
By section 15 as (1) ; , (2) [1963] 1 section C. R, 491.
420 amended by the Central Sales Tax Second Amendment Act, XXXI ,of 1958 it is provided "Every sales tax law of a State shall, in so far as it imposes or authorises the imposition of a tax on the ,sale or purchase of declared goods, be subject to 'the following restrictions and conditions, namely (a) the tax payable under that law in respect of any sale of purchase of such goods inside the state shall not exceed three per cent of the sale or purchase price thereof, and such tax shall not, be levied at more than one stage; (b) where a tax has been levied under that law in respect of the sale or purchase inside the state of any declared goods and such goods are sold in the course of inter state trade or commerce, the tax so levied shall refunded to such person in such manner and subject to such conditions as may be provided in any law in force in that State.
" By section 15 of the in respect of the declared goods on transactions of sale or purchase the tax leviable is restricted to 3 % and is not leviable at more than one stage.
There, is no dispute that the purchase tax on jute is leviable at the first point of purchase under section 3A of the Bihar Sales Tax Act, and the rate of tax also is not shown to exceed the maximum prescribed by section 15 of the .
The provisions of sections 3A & 5A of the Bihar Sales Tax Act are not therefore inconsistent with the provisions of section 15 of the .
But, in our judgment, r. 31B of the Bihar Sales Tax, Rules, 1959 and the notification issued on December 26, 1967 are unauthorised and must be struck down.
The Bihar Sales Tax Act is enacted by the Legislature to consolidate and amend the, law relating to the levy of tax on the sale and purchase of goods in Bihar.
The State Legislature is competent in enacting sales tax legislation to make a provision which is ancillary or incidental to any provision relating to levy,; collection and recovery of sales tax and purchase tax.
_ A provision which is made by the Act or by the Rules which seeks to prevent evasion of liability to pay tax on intra State sales or purchase would therefore be within the competence of the Legislature or the authority competent to make the rules .
But the State Legislature has no power to legislate for the levy of tax on transactions which are carried on in the course of inter State trade or commerce or in the course of export.
Section 42 of the Bihar Sales Tax Act, 1959, prevents any person from transporting from any railway station, steamer station, 421 air port, post office or any other place any consignment of such goods exceeding the.quantity specified with a view to ensuring that 'there is no evasion of tax payable under the Act.
But the power under section 42 can only be exercised in respect of levy, collection and recovery of intra State or purchase tax.
It cannot be utilised for the purpose of ensuring the effective levy of Inter State sales or purchase tax.
The appellant purchased jute both within and without the State of Bihar.
In respect of transactions of purchase within the State of Bihar and despatch of goods liability to pay purchase tax at the point of purchase may arise.
In respect of goods which are purchased in the State of West Bengal and brought within the State of Bihar and then despatched to other States in the course of inter State transactions no question of levy of purchase tax under the Bihar Sales Tax Act arises.
R. 31 B framed by the State Government seeks to prohibit transport in pursuance of transactions which are inter State, for in terms it prohibits transporting of goods to any place outside the State of Bihar.
Again transport of goods for personal consumption oil use, or of goods, gifted, pledged or dealt with otherwise than by sale, falls within the injunction contained in r. 31B. The power of the State Legislature is restricted to legislate in respect of intra state transactions of sale and purchase and to matters ancillary or incidental thereto : it has no power to legislate for levy of tax on sales and purchase in the course of inter State transactions.
The, power conferred by section 42 authorising the imposition of restriction on transport or movement of goods may only be exercised in respect of transactions which facilitate levy, collection and recovery of tax on transactions of intra State sale or purchase.
When r. 31B prohibits transport of goods to any place outside the State of Bihar unless a certificate is obtained from the appropriate authority, it seeks to prohibit transport of goods pursuant to transactions which may not even be of the nature of sale or purchase transactions; in any case it restricts transport pursuant to transactions in the course of inter Statetrade and commerce.
The operation of the rule is not restricted only to transactions in the course of intra State trade and commerce.
The rule authorises restrictions on inter State transactions and is on that account unauthorised.
For the same reasons the notification issued on December 26, 1967 must be regarded as also unauthorised.
In the view we have taken r. 31B and the notification issued bythe State Government on December 26, 1967 must be declared ultra vires, and since r. 31B and the notification are ultra vires the communication issued by the Superintendent of Commercial 4 22 Taxes to the Railway Authorities must also be declared unauthorised A writ will therefore issue declaring r. 31B and the notification issued by the Government of Bihar on December 26, 1967 ultra vires, and the letter written by the Superintendent of Commercial Taxes to the Railway Authorities is also declared unauthorised.
Having regard to the circumstances, we think there should be no order as to costs.
| Under section 5A of the Bihar Sales Tax Act 1959 as amended by the Bihar Finance Act, 1966 the purchase tax on goods declared under section 3A was to be levied at the point of purchase made from a person other than a registered dealer.
By a notification dated September 14, 1966 the Governor of Bihar declared jute as a commodity liable to purchase tax at the rate specified in the notification.
The appellant carried on business in jute, In the course of his business he.
purchased raw jute from producers in West Bengal, transported it to Kishenganj Railway Station in Bihar and then re exported it to purchasers in West Bengal.
He also bought raw jute in Bihar and exported it to merchants and mill owners in West Bengal by rail from Kishenganj Railway Station.
After the enactment of sections 3A and 5A the State Government issued a notification dated December 26, 1967 purporting to exercise power under section 42 of the Bihar Sales Tax Act, 1959 read with r. 31B of the Bihar Sales Tax Rules, 1959 notifying that no person shall tender at any railway station mentioned in Sch.
11 any consignment of goods mentioned in Sch.
I exceeding the quantity specified for transport to any place inside the State of Bihar and no person shall accept such tender in accordance with the conditions laid down in the said R. 31B. Under Sch.
I jute exceeding 800 kg.
could not be tendered for transport without a despatch Permit and Kishenganj was one of the railway stations mentioned in Sch.
In July 1967 the Superintendent of Commercial Taxes prohibited the railway authorities from loading and despatching jute goods from any railway station in Purnea district without the production of a registration certificate.
For non production of such certificate the railway authorities refused to despatch from Kishenganj the jute goods booked by the appellant.
The appellant moved a 'writ petition in the High Court of Patna challenging inter alia the validity ,of sections 3A and 5A of the Bihar Sales Tax Act and of R.31B.
The High Court dismissed the petition.
With certificate the present appeal was filed.
In support of the petition it was urged (i) that sections 3A and 5A infringed the guarantee of freedom of trade under article 301 of the Constitution and since the amendment by the Finance Act, 1966 introducing these sections did not receive the assent of the President under article 304(b) the amendment was not saved; (ii) that sections 3A and 5A were contrary to ' section 15 of the and accordingly void; (iii) that P. 31B framed by the State Government and the notification issued on December 2.6, 1967 were unauthorised and liable to be struck down.
HELD: (i) The assumption that the levy of purchase tax must be deemed in all circumstances to violate the guarantee under article 301 and 413 the levy will be valid only if the Act is enacted by the State Legislature with the previous sanction of the President cannot be accepted as correct.
Imposition of tax may in certain circumstances impede free flow of trade, commerce and intercourse.
But every tax does not have that effect.[417 G; 419 E] State of Madras vs N. K. Nataraja Mudaliar [1968] 3 S.C.R. 829, Atiabari Tea Co. Ltd. vs State of Assam, and The Andhra Sugars Ltd. vs State of Andhra Pradesh, 21 S.T.C. 212, applied.
In the present case the petitioner has made no averments in his petition which supported the plea that imposition of purchase tax directly and immediately restricts or impedes the free flow of trade.
Since power to impose purchase tax under section 3A was not shown to restrict or impede the free flow of trade directly and immediately, it need not seek to derive for its validity, support from article 304(b).
[419 G] (ii) By section 15 of the , tax liable in respect of declared goods on transactions of sale or purchase is restricted to 3% and is not leviable at more than one stage.
There was no dispute that the purchase tax on jute was leviable at the first point of purchase under section 3A of the Bihar Sales Tax Act, and the rate of tax was not shown to exceed the maximum prescribed by section 15 of the .
The provisions of sections 3A and 5A of the Bihar Sales Tax Act are not therefore inconsistent with the provisions of section 15 of the .
[420 E] (iii) Rule 31B of the Bihar Sales Tax Rules must however be struck down as ultra vires.
[420 F] The power of the State Legislature is restricted to legislate in respect of intra State transactions of sale and purchase and to matters ancillary or incidental thereto : it has no power to legislate for levy of tax on sales and purchase in the course of inter State transactions.
The power conferred by section 42 authorising the imposition of restriction or transport or movement of goods may only be exercised in respect of transactions which facilitate levy, collection and recovery of tax on transactions of intra State sale or purchase.
When r. 31B prohibits transport of goods to any place outside the State of Bihar unless a certificate is obtained from the appropriate authority, it seeks to prohibit transport of goods pursuant to transactions which may not even be of the nature of sale or purchase transactions; in any case it restricts transport pursuant to transactions in the course of inter State trade and commerce.
The operation of the rule is not restricted only to transactions in the course of intra State trade and commerce.
The rule authorises restrictions on inter State transactions and is on that account unauthorised.
For the same reasons the notification issued on December 26, 1967 must be regarded as also unauthorised.
[421 E G]
|
ivil Appeal No. 143 of 1951.
Appeal by special leave from the judgment and decree dated 23rd March, 1950, of the High Court of Judicature at Patna (Reuben and Jamuar JJ.) in appeal from Original Decree No. 206 of 1946 arising out of a decree dated 31st January, 1946, of the Subordinate Judge at Patna in Title Suit No. 55/4 of 1943 45.
Saiyid Murtaza Fazl Ali for the appellants.
N.C. Chatterjee (A. N. Sinha, with him)for the respond ents Nos. 1 to 9.
B.K. Saran for the respondents Nos.
11 to 16.
April 14.
The Judgment of the Court was deliv ered by CHANDRASEKHARA AIYAR J.
This is an appeal by the defendants from a decree of the Patna High Court reversing a decree of the Subordinate Judge 's Court at Patna, and de creeing the plaintiffs ' suit for possession against the defendant first party who may be called for the sake of convenience as 'the Gopes '.
The lands were khudkhasht lands, partly belonging to the plaintiffs first party and partly belonging to Mussammat Anaro Kuer, from whom the plaintiffs second and third par ties trace title.
The ancestors of plaintiffs first party gave on 28 9 1899 an ijara with possession to one Lakhandeo Singh an ancestor of the defendant second party under Exhib it I (b) for a term 777 of six years from 1307 Fasli to 1312 Fasli for Rs. 540.
The poshgi money was to be repaid in one lump sum at the end of Fasli 1312.
If there was no redemption then the ijara was to continue in force till the money was repaid.
Mussammat Anaro Kuer gave her share in ijara to the same Lakhandeo Singh orally on 10th June, 1905, for a period of three years for Rs. 542.
Lakhandeo Singh, who is represented now by the defendant second party, made a settlement of the land thus got by him (8.26 acres or 13 bighas in all) with one Ram Lal Gope an ancestor of the defendant first party for a period of three years from Fasli 1315 to Fasli 1318.
There was a patta in favour of the tenant and a kabuliyat in favour of the landlord.
This was in 1908.
The mortgage was redeemed in June 1942 by payment in proceedings under section 83 of the Transfer of Property Act, When the plaintiffs went to take possession, they were resisted by the Gopes (defendant first party), and after unsuccessful criminal proceedings, the plaintiffs filed the present suit.
The Subordinate Judge dismissed it, holding that the Gopes were raiyats having acquired permanent occupancy rights in the lands as the result of the settlement by the mortgagee, Lakhandeo Singh.
On appeal the High Court set aside this decision and gave the plaintiffs a decree for possession on the finding that the defendants were not raiyats and had no permanent rights of occupancy.
This court granted to the defendants special leave to appeal.
The suit was in the alternative for recovery of the value of the lands as compensation or damages from the defendant second party in case it was found that the defendant first party could not be ejected.
The trial court decreed this alternative claim and awarded to the plaintiffs compensation at the rate of Rs. 200 per bigha.
The defendant second party carried the matter in appeal to the High Court and succeeded.
But we have nothing to do with this matter in the present appeal.
At the trial, the plaintiffs alleged and maintained that the lands were their zirat lands within the meaning SUPREME 778 of section 116 of the Bihar Tenancy Act and that the defend ant first party could acquire no rights of occupancy in the same.
The Subordinate Judge found against this contention and held that they were khud kasht or bakasht lands of the proprietor, in which rights of occupancy can be acquired He negatived the plea of the defendants that they were their ancestral raiyati lands.
He also held that there was no collusion between the mortgagee Lakhandeo Singh and Ram Lal Gope in the matter of settlement of lands.
It is on the basis of these findings which were accepted by both the parties that the hearing of the appeal proceeded before the High Court.
It was held by the Privy Council in Bengal Indigo Company vs Roghobur Das(1) that "a zuripeshgi lease is not a mere contract for the cultivation of the land at a rent, but is a security to the tenant for the money advanced".
They observed, speaking of the leases before them, that "the leases in question were not mere contracts for the cultiva tion of the land let; but that they were also intended to constitute, and did constitute, a real and valid security to the tenant for the principal sums which he had advanced, and interest thereon.
The tenants ' possession under them was, in part at least, not that of cultivators only, but that of creditors operating repayment of the debt due to them, by means of their security.
" These words apply to the ijara deed before us; its dominant intention was to provide a security for the loan advanced and not to bring into existence any relationship of landlord and ten ant.
The general rule is that a person cannot by transfer or otherwise confer a better title on another than he himself has.
A mortgagee cannot, therefore, create an interest in the mortgaged property which will enure beyond the termina tion of his interest as mortgagee.
Further, the mortgagee, who takes possession of the mortgaged property, must manage it as a person of ordinary prudence would manage it if it were his own; and he must not commit any act which is de structive (1) 779 or permanently injurious to the property; see section 76, sub clauses (a) & (e)of the Transfer of Property Act.
It follows that he may grant leases not extending beyond the period of the mortgage; any leases granted by him must come to an end at redemption.
A mortgagee cannot during the subsistence of the mortgage act in a manner detrimental to the mortgagor 's interests such as by giving a lease which may enable the tenant to acquire permanent or occupancy rights in the land thereby defeating the mortgagor 's right to khas possession; it would be an act which would fall within the provisions of section 76, subclause (e), of the Transfer of Property Act.
A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period is a different matter altogether.
It is an exception to the general rule.
The tenant cannot be ejected by the mortgagor even after the redemption of the mortgage.
He may become an occupancy raiyat in some cases and a non occupancy raiyat in other cases.
But the settle ment of the tenant by the mortgagee must have been a bona fide one.
This exception will not apply in a case where the terms of the mortgage prohibit the mortgagee from making any settlement of tenants on the land either expressly or by necessary implication.
Where all the zamindari rights are given to the mortga gee, it may be possible to infer on the proper construction of the document that he can settle lands with tenants in the ordinary course of management and the tenants might acquire certain rights in the land in their capacity as tenants.
In the case of Manjhil Lal Biswa Nath Shah Deo vs Shaikh Mo hiuddin(1), there was a bona fide settlement of mortgaged rayati land by the mortgagee with tenants and it was held that the mortgagor was not entitled to evict them after redemption.
The earlier decision of Babu Bhairo Nath Ray vs Shanke Pahan(2), related to bakasht lands, and (1) (2) Pat.31.
780 there was no provision in the zuripeshgi lease restricting the power of the mortgagee lessee as regards settlement of tenants.
Khudkasht lands and bakasht lands are really in the nature of raiyati lands which come into the possession of the proprietor by surrender, abandonment or purchase.
In the present case.
we have the following clause in the ijara deed: "It is desired that the ijaradar should enter into possession and occupation of the share let out in ijara (being the khudkasht land under his own cultivation), culti vate them, pay 2 annas as reserved rent year after year to us, the executants, and appropriate the produce thereof year after year on account of his having the ijaradari interest.
" This term disentitles the mortgagee from locating tenants on the land mortgaged.
Ram Lal Gope, the grandfather of the defendants first party, who executed the kabuliat in 1908 must have known of the title of Lakhandeo Singh the mortga gee and the terms under which he held the lands under the registered zuripeshgi ijara deed and this is most probably why the tenant not only took the lease for a period of 3 years, but expressly undertook to give up possession over the thika lands on the expiry of the period of lease without urging any claim on the score that the lands were his old kasht lands.
His kabuliat (Exhibit 11) in fact refers to Lakhandeo Singh 's ijaradari interest.
In view of these facts, the learned Judges of the High Court stated that they were not prepared to hold that the settlement was a bona fide one or the mortgagee was within his rights in settling these lands.
Strong reliance was placed for the appellants on the Full Bench decision Binad Lal Pakrashi and Others vs Kalu Pramanik and Others (1) where it was held that a person inducted into possession of land as a raiyat even by a trespasser became a non occupancy raiyat within the meaning of section 5, sub section, 2 of the Bengal Tenancy Act and was protected from ejectment.
But this decision has been subsequently (1) Cal.
781 explained away in several cases as based on the proposition that the rights must have been bona fide acquired by them from one whom they bona fide believed to ' have the right to let them into possession of the land.
Such, however, is not the case here, in view of the recitals in the ijara deed in favour of Lakhandeo Singh and the kabuliat by Ram Lal Gope.
Sections 20 and 21 of the Bihar Tenancy Act were re ferred to by the learned counsel for the appellants in the course of his arguments and he pointed out that the land in this case was held ' continuously by his clients and their predecessors from 1908 to 1942, when they were sought to be ejected.
For these sections to apply, we must be in a position to hold that the appellants were "settled raiy ats".
"Raiyals" is defined in sub clause 2 of section 5 as meaning "primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family . " Sub clause 3 provides that a person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediately under a tenure holder.
Lakhandeo Singh was not a "proprie tor" by which term is meant a person owning, whether in trust or for his own benefit, an estate or part of an es tate: he was only a mortgagee.
Nor was he a tenure holder or under tenureholder, as he does not comply with the defi nition given in sub clause (1) of section 5, namely, a person who had acquired from a proprietor or from another tenure holder a right to hold land for the purpose of col lecting rents, or for the purpose of bringing the land under cultivation by establishing tenants on it.
Such proof as there is in this case only goes to show that the lands were under the cultivation of the plaintiffs and that they were made over to the possession of the mortgagee so that he might cultivate them himself.
Hence, Ram Lal Gope could not claim that he was a settled raiyat of the village and that under the statute he secured occupancy rights in the lands Which he took on lease from Lakhandeo Singh.
782 Lastly, it was urged that the ijara by Mst.
Anaro Kuer was admittedly an oral transaction and there was no proof of any prohibition against the settlement with tenants so far as her share (3.97 acres) was concerned and that the rights of the parties as regards this area would stand on a differ ent footing from the rights in respect of the 4 acres and 29 cents belonging to the plaintiff first party.
This point was not taken in the courts below where the two ijaras given to Lakhandeo Singh were dealt with as if they were part and parcel of one and the same transaction, the rights and liabilities, whatever they were, being common to both.
We cannot allow the point to be taken now.
The result is that the High Court 's decree is con firmed and the appeal is dismissed with costs of the plain tiffs respondents.
There will be no order as to costs of the other respondents.
Appeal dismissed.
Agent for the respondents Nos.
1 to 9: M.M. Sinha.
Agent for the respondents Nos. 11 to 16: K.L. Mehta.
| As a general rule a person cannot transfer or otherwise confer a better title on another than he himself has and a mortgagee cannot therefore create an interest in mortgaged property which will enure beyond the termination of his interest as mortgagee.
Further, a mortgagee cannot during the subsistence of the mortgage act in a manner detri mental to the mortgagor 's interests, such as by giving a lease which may enable the tenant to acquire permanent occupancy rights in the land, thereby defeating the mortga gor 's right to khas possession.
A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period is an exception to the general rule, but to fall within this exception the settlement of the tenant by the mortgagee must have been a bona fide one.
The exception will not apply in a case where the terms of the mortgage prohibit the mortgagee from making any settle ment of tenants on the land either expressly or by necessary implication.
Where a zuripeshgi ijara deed contained the following clause: "It is desired that the ijaradars should enter into possession and occupation of the share let out in ijara (being the kkudkasht land under his own cultivation), culti vate them, pay 2 as.
as reserved rent year after year to us, the executants, and appropriate the produce thereof year after year on account of his having the ijara interest" and the kabuliat executed by the tenant to whom the lands were leased by the mortgagee for a period of 3 years referred to the ijara deed and contained an express provision that he (the tenant) would give up possession of the tika land on the expiry of the lease without urging any claim on the score that the lands were his kasht lands: Held, confirming the decision of the High Court, that the settlement was not a bona fide one and the successors of the tenant (the de fendants) did not acquire permanent rights of occupancy in 101 776 the demised lands under the Bihar Tenancy Act even though the lands had been in the occupation of the tenant and his successors for over 30 years after the expiry of the lease.
Held further, that the defendants could not acquire occupancy rights under sections 20 and 21 of the Bihar Tenancy Act as the mortgagee was neither a "proprietor" nor a "tenure holder" or "under tenure holder" and the tenant and his successors were not, therefore, "settled raiyats" within the meaning of section 5, cl.
(2), of the said Act.
Manjhil Lal Biswanath Shah Deo.
vs Shaikh Mohiuddin (I.L.R. Babu Bairo Nath Ray vs
Shanke Pahan (I.L.R. 8 Pat.
31) and Binda Lal Pakrashi and Others vs Kalu Pramanik and Others (I.L.R. distinguished.
|
ns Nos.
1524, 1537 1580 of 1973 and 74, 75, 254, 510 512 of 19702 ' 21 of 1971 and 1525 & 1581 1606 of 1973.
Petitions under article 32 of the Constitution of India.
A. K. Sen, Yogeshwar Prasad, section K. Bagga and section Bagga, for the petitioners (in W.Ps.
1524 and 1537 1580/73).
A. K. Sea, (in W.P. No. 74/70), Hardyal Hardy (in W.P. No. 75/70), Yogeshwar Prasad, section K. Bagga and section Bagga, for the petitioners in (W.P. Nos 74, 75, 254 and 510 512/70, 21/71 and 1525, 1581 1606/1973).
L. N. Sinha, Solicitor General and O. P. Rana, for respondents (in W.Ps.
1524, 1537 1580173).
O. P. Rana, for respondents (in W.Ps.
Nos. 74, 254/70, 21171, 1525, 1581 1606/73 and respondents nos.
1 & 3 in W.P. 75 and 510 512/70).
V. M. Tarkunde and E. C. Agarwala, for respondent No. 2 (in W. P. No. 75/70 and applicant/intervener in W.P. No. 75/70.
The Judgment of the Court was delivered by Goswami, J.
By the above writ applications under Article 32 of the Constitution the validity of the Uttar Pradesh Krishi Utpadhan Mandi Adhiniyam, 1964 (U.P. Act No. XXV of 1964 as amended by U.P. Act No. 10 of 1970) (briefly called the Act) and the rules made thereunder are challenged on the ground of violation of Article 14 and Article 19(1)(g) of the, Constitution.
The petitioners in all the above cases are traders or commission agents dealing in agricultural produce.
The following submissions are made on behalf of the petitioners (1) The constitution of the Market Committee under section 13 of the Act is highly prejudicial to their interests and of the traders in general since, it will have a perpetual majority of producers.
(2) To entrustment of licensing to such a Market Committee instead of to any impartial authority is unfair and an un .
reasonable restriction on the right to trade.
(3) The Act in the matter of grant of licences gives no guidance at all and even under rule 70(4) two vague criteria have been laid down in the matter of issue of licences under the Act.
(4) The petitioners are required to provide a storage space to the producers for their agricultural produce going to the market and this obligation is also an unreasonable res triction on the fundamental right of the petitioners.
379 (5) Rule 76 (1) is invalid and ultra vires section 40 of the Act and has also placed unreasonable restrictions on the right to carry on trade or business.
Before we deal with these submissions, we may turn out attention to the Act.
As the preamble shows the Act has to provide for the regulation of sale and purchase of agricultural produce and fox the establishment, superintendence, and control of markets therefore in Uttar Pradesh.
The statement of object and reasons gives a clear picture of the evils sought to be, remedied by this legislation and a portion therefrom may be extracted below : "The present chaotic state of affairs as, obtaining in agricultural produce markets is an acknowledged fact.
There are.
,innumerable charges,, levies.
and exactions which the agricultural producer is required to pay without having any say in the proper utilisation of the amount so paid by him.
In matters of dispute, between the seller and the buyer, the former is generally put at a disadvantage; by being given arbitrary awards.
The producer is also denied a large pa rt of his produce by manipulation and defective use of weights and scales in the market.
The Government of India and the various committees and commissions appointed to study the condition of agricultural markets in the country have also been inviting the attention of the State Government from time to time towards improving the conditions of these markets .
The Planning Commission stressed long ago that legislation in respect of regulation of markets should be, enacted and enforced by 1955 56".
It is also mentioned that legislation in the State was first proposed in 1938 but lapsed.
It also appears that most of the other states have already passed legislation in this respect.
It is, therefore, clear that the principal object of this Act is to come in aid of the producers who are generally ill organised and are by far and large the exploited party in the bargain between unequals.
Section 2 contains the definitions.
By section 2(a) " 'agricultural produce ' means such items of produce of agriculture, horticulture, viticulture, apiculture, sericulture, pisciculture, animal husbandry or forest as are specified in the schedule, and includes admixture of 2 or more of such items, and also includes any such item in processed form, and further includes gur, rab, shakkar, khandsari and jaggery".
By section 2 (f) " 'Committee ' means a Committee constituted under this Act".
By section 2(k) " 'Market Area ' means an area notified as such under section 6 or as modified under section 8".
By section 2(p) " 'producer ' means a person who, whether by himself or through hired labour, produces, rears or catches, any agricultural produce, not being a producer who also works as a trader, broker or Dalal, commission agent or Arhatiya or who is otherwise ordinarily engaged in the business, of storage of agricultural produce".
We are not concerned with the pro viso attached thereto.
By section 2(y) " 'trader ' means a person who in the ordinary course of business is engaged in buying or selling agricultural produce as a principal or as a duly authorised agent of one or more 380 principals and includes a person, engaged in processing of agricultural produce".
After notification by the State Government of its intention to declare a particular area as a Market Area under section 5 and after inviting objections and consideration of the same, the State Government under section 6 declares the whole or any specified portion of the area mentioned in the notification to be the Market Area in respect of such agricultural produce as may be specified.
Similarly under section 7, the Principal Market Yard and Sub Market Yards are declared.
Section 9(2) which is material for our purpose, may be quoted: "No person shall, in a Principal Market Yard or any Sub Market Yard, carry on business or work as a trader, broker, commission agent, warehouse man, weighman, palledar or in such other capacity as may be prescribed in respect of any specified agricultural produce except under and in accordance with the conditions of a licence obtained therefore from the Committee concerned".
The petitioners make a great grievance of this licensing provision by the Market Committee called the Mandi Samiti of the Market Area.
Section 13 provides for constitution of the Market Committee and provides for representation from different sources as detailed in (i) to (xi) thereunder.
The learned counsel draws our attention to clauses, (vii) and (vii a) of section 13(1) whereby ten representatives of the producers are included in the Committee.
It is pointed out by the learned Solicitor General and not contradicted by Mr. Sen that ' the Committee under section 13 consists of 23 members out of which ten are from the producers.
Section 16 provides for functions and duties of the Committee and, inter alia, under section 2(i) thereof "a Committee shall ensure fair dealings between the producers and persons engaged in the sale or purchase of specified agricultural produce.
" Under section 17, "A Committee shall, for the purposes of this Act, have the powers to (i) issue or renew licences under this Act on such terms and conditions and subject to such restrictions as may be prescribed, or, after recording reasons therefore, refuse to issue or renew any such licence; (ii) suspend or cancel licences issued or renewed under this Act".
Section 25 provides for appeals against the, orders of the Committee to the Director of Agriculture who is to decide the same in accordance with the rules.
Under section 32, the State Government also has powers of revision and may call for the records of the proceedings of the Committee and pass orders modifying, annulling or reversing the same.
Section 40 enables the State Government to make rules for carrying out the purposes of this Act.
The rules, inter alia, provide for matters relating to the functions, powers and duties of the Committee, licensing fee, or market fee which may be levied and realised by the Committee and their mode of recovery and the terms and conditions for assessment and renewal of licences under this Act [section 40 (2) ].
There is a schedule to the Act 381 which contains the description of the agricultural produce Under eight different heads.
Chapter VIII of the rules deals with transaction of business in Market Yards and the opening rule 70 provides for licensing by the Market Committees.
By sub rule(3) "any person desiring to hold licence under sub rule (1) shall make, in Form No. XI or Form No. XII, as the case may be, a written application for a licence to the Market Committee and shall pay the licence fees prescribed under rule 67".
Rule 70(4) (i) may now be quoted: "On receipt of such application together with the amount of fee prescribed under rule 67, the Market Committee may issue him the licence applied for,, if (a) it is satisfied that the applicant is solvent; (b) it is satisfied that the applicant is a desirable person to whom a licence may be granted; provided that the provisions of sub clause (a) shall not apply to weighmen, measurers, palledars, truck plyers and Thela plyers".
This rule will have to be read with section 17 quoted above.
By rule 73, the order of refusal, cancellation or suspension of a licence by, the Committee shall be communicated to the person concerned in the specified manner indicated therein.
Rule 76(1) which is impugned may be quoted : "Every consignment of specified agricultural produce brought for sale into the Principal Market Yard or any sub Market Yard shall be sold by open auction: Provided that nothing in this sub rule shall apply to a retail sale as may be specified in the bye laws of the Committee".
Some provisions of similar Acts of the States of Madras, Bombay and Gujarat had earlier been the targets of unsuccessful attack in this Court and hence the constitutional challenge in the present applications against the U.P. Act is necessarily on different ground,,.
[See M. C. V ' section Arunchala Nadar etc.
vs The State of Madras & others;(1) Mohammad Hussain Gulam Mohammad and Another vs The State of Bombay and another;(2) and Jan Mohammed Noor Mohammed Begban vs State of Gujarat and Another(3)].
We may now turn to the Submissions.
With regard to the first submission, as earlier noted, the grievance is not factually accurate.
Out of 23 members of.
the Committee only 10 are from the producers.
Therefore, there is no question of a perpetual majority of the producers in the Committee.
Besides under section 13(1)(vii), 8 producers are elected.
It may be even a legitimate expectation of the legislature that there may be reasonable likelihood that Producers of eight categories of agricultural produce mentioned in the schedule, (1) [1959] (Supp) (1) S.C.R. 92.
(2) ; (3) ; 382 may be represented.
Under section 13(1)(vii a), which was introduced by an amendment in 1970, two producers belonging to the scheduled castes are to be nominated by the State Government This provision is made in the interest of the People belonging to the scheduled castes who may not be able to.
get due representation in the elections.
We do not find any unreasonable features in the scheme of representation in the Committee under section 13.
This will be clear even from section 14 whereby the first Committee appoints suit able members "to represent different interests referred to in sub section (1) of section 13".
The first submission of the petitioners is, therefore, of no avail.
We may now take up consideration of the second and the third submissions which may be dealt with together.
It is submitted that the licensing of the traders should not be left in the hands of the Market Committee.
We find it difficult to appreciate how the performance of this duty by the Committee will at all prejudice the traders.
To say the least it is a hypothetical objection in this case, as, we understand, none of the petitioners have been refused a licence.
It is true that usually some governmental authority is charged with the duty of granting of licences under various local Acts.
That, however, does not prove that the duly cannot be properly and impartially exercised by the Committee representing various interests which are vitally interested in the trade of agricultural produce.
Whether in a particular case the action of the Committee is mala fide or otherwise, objectionable, may be a different matter and such a grievance can be properly dealt with.
That would, however, not make, the, provision invalid nor can it be said to place an unreasonable restriction on the right of the petitioners to trade.
It is further submitted that there is no guidance in the Act in the matter of grant of licence and the relevant rule 70(4)(1) prescribes only two vague criteria in the matter.
This submission fails to take note of the fact that the Committee which is entrusted with the duty of granting licences consists of people from different sources vitally interested in the marketing of agricultural produce.
The Committee consists also of representatives from local bodies, cooperative marketing societies Central Warehousing Corporation, State Warehousing Corporation, representatives of traders and commission agents, Government officials of whom one shall be a representative of the Agriculture Department and the other of Food and Supplies Department, and so forth.
It is, therefore, a fairly well represented Committee which is expected to know the object and purpose of the Act of which it is a creature.
One may legitimately expect that the members are well aware of the difficulties of the producers, interests of the traders and the intricacies of the trade.
There is sufficient guidance from the preamble and other provisions of the Act with which the members of the Committee owe their duty to be conversant For example under section 16 the Committee is charged with the duty of enforcing the provisions of the Act, the rules and the bye laws.
It has to exercise its powers and perform its duties and discharge its functions in accordance with the provisions of the Act and the rules.
38 3 Under sub section (2) of section 16, the Committee shall ensure fair dealings between the producers and the traders besides performing other functions.
Form No. XI in which a trader has to submit his application for a licence.
also gives various particulars from which the Committee would be able to consider his claim for a licence.
It will be ' seen that in this form the, applicant has to undertake to abide by the conditions of the licence and the provisions of the Act and the rules.
The condition of the licence which are noted in Form No. XIII would also give an indication of the obligations of the licensee.
All these would be known to the Committee.
At any rate, with the help of the Government officials in the Committee there is no reason to think that the work of the Committee will not function smoothly and that there will be any reason to apprehend that licences would be refused arbitrarily.
Even the scope for such an apprehension is sought to be done away with by providing a provision Provision of appeal against the decision of the Committee and also a further revision to the State Government.
There is a further limitation on the power of the Committee by insisting upon recording of reasons while refusing a licence.
It is, therefore, clear that a speaking order has to be.
passed when refusing a licence and it will have to justify that the licence is refused only on relevant considerations with regard to solvency and fitness in terms of the provisions.
of the Act.
It is submitted that the choice of the two criteria under rule 70(4) (i) is bad and there is no proper guidance in these criteria which are not capable of objective determination.
The two criteria laid down are solvency and desirability.
The applicant has to satisfy the Committee that he is solvent as opposed to insolvent that is bankrupt.
We are informed that the original Hindi version of the rule which is translated into English gives the equivalents as follows : "It is satisfied that the applicant is not a bankrupt (rindiwali) ".
"It is satisfied that the applicant is a proper (upoyukta) person to whom a licence may be granted".
Mr. Sen candidly admits that the criterion on the score of "bankruptcy" is well known and cannot be said to be vague or indefinite.
Hi, however, submits that the second criterion is not at all precise and definite.
Although perhaps a more expressive guidance could have been given, we have already observed that the Act itself provides sufficient guidance to the Committee in the matter of deciding whether a particular applicant is or is not a proper person to hold a licence and we cannot accede to the submission that the two criteria taken with the other guidelines from the provisions of the Act and the rules offer no proper guidance to the Committee in tic matter of grant of licence.
The second and the third submissions of the petitioners are, therefore, devoid of substance.
With regard to the fourth submission, it is sufficient to point out that under section 16(2)(vii) the Committee has to provide, inter 384 alia, accommodation for storage and such other facilities as may be prescribed.
Under rule 52(4) storing of the specified agricultural produce shall be subject to the payment of such storage fee and such other conditions as may be specified in the by laws.
That being the position, this may be even an interim measure pending arrangements by.the Committee, for proper storage.
Even otherwise the storage by the traders in the Market Yards will be always paid for under rule 52(4).
There is, therefore, no substance in the fourth submission of the petitioner.
With regard to the last submission regarding invalidity of rule 76(1), we are not satisfied that the same is ultra vires section 40 of the Act.
Section 40 empowers the State Government to make rules for carrying out the purposes of the Act.
Rule 76(1) is well within the rule making power of the State Government under section 40(2), clause (xxvii).
Section 9(2) restricts the right to carry on trade except under and in accordance with a licence.
Section 17 provides for issuing or renewal of licences subject to the restrictions under the rules.
Section 9(2) and section 17 are not challenged before us.
Rule 76(1) prescribes the mode of sale that is to say by open auction under the rule making power under section 40 read with clause (xxvii).
The rule is not ultra vires section 40 of the Act.
It is said that prohibiting private sales by confining only to sale by open auction puts an unreasonable restriction on the right to trade of the petitioners.
If section 9(2) and section 17 are not challenged as invalid, it is not understood how rule 76(1) which is within the rule making power can be said to be unreasonable.
In order that the producers obtain the best price for their commodity, sale by open auction is prescribed under rule 76(1) lo fulfil one of the important purposes of the Act.
Sale by auction is a well known mode of sale by which the producers, for whose interest this Act has been made, can obtain the best price for their commodities.
The definition of sale and purchase to which our attention has been drawn by the petitioners do not run counter to the provisions for auction sale under rule 76.
It cannot by any stretch of imagination be held to be an unreasonable mode in the entire scheme of the Act.
The legislature is intervening to see that the producers get the maximum pecuniary return possible in their transactions and, as a necessary concomitant, eliminated the mode of private sale by individual negotiations resulting in malpractices.
Besides by the proviso to rule 76(1) this restriction is not allowed to operate in the case of retail sales.
There is, therefore, no substance in the submission that rule 76(1) violates the fundamental right of the petitioners under Article 19 (1) (g) of the Constitution.
Mr. Sen particularly drew our attention to two decisions of this Court.
The first is given in Lala Hari Chand Sarda vs Mizo District Council and Anr.
(1) That was a case where the Executive Committee of the Mizo District Council refused to renew the temporary licence issued to the appellant therein who was a non tribal trader under section 3 of the Lushai Hills District (Trading by non Tribals) Regulation, 1953.
This Court by majority struck down section 3 as (1) ; 385 violative of Article 19(1) (g) of the Constitution.
This decision is clearly distinguishable from the present case.
In that case there was no right of appeal to any superior authority against a refusal to grant or renew a ]licence and the non tribal trader had no remedy whatsoever against such an order.
This Court also observed in that case that "a perusal of the Regulation shows that it nowhere provides any principle or standard on which the Executive Committee has to act in granting or refusing to grant the licence" (emphasis added).
The second decision, is in Harakchand Ratanchana Benthia and Ors. etc.
vs Union of India and Ors.(1) This was a case under the Gold (Control) Act and Mr. Sen drew our attention to the expression 'suitability of the applicant" in section 27(6)(e) of the Gold (Control) Act which was held to provide no objective standard or norm and as such was held to be constitutionally invalid.
This Court while dealing with the objection to section 27 of the Gold (Control) Act which relates to licensing of dealers held as follows : "Section 27(6)(a) states that in the matter of issue or renewal of licences the Administrator shall have regard to the number of dealers existing in the region in which the applicant intends to carry on business as a dealer, But the word 'region is nowhere defined in the Act.
Similarly section 27(6)(b) requires the Administrator to have due regard to the anticipated demand, as estimated by him for ornaments in that region, but the expression anticipated demand ' is vague and incapable of objective assessment and is bound to lead to a great deal of uncertainty.
In the same way 'the expression 'Suitability of the applicant in section 27(6 ) (e) and 'public interest" in section 27 (6) (g) do not provide any objective standard or norm.
Further, the requirement in the section imposing the same conditions for the renewal of the licence as for the initial grant is unreasonable, as it renders the entire future of the business of the dealer uncertain and subject to the caprice and arbitrary will of the administrative 'autho rities.
Therefore, clauses (a), (b), (e) and (g) of section 27(6) are constitutionally invalid".
In the instant case we have already examined the two criteria laid down under rule 70(4) (i) and have held that they do not place any unreasonable restriction on the right of the applicants to obtain a licence.
By rule, 70(4)(i)(b) the Committee has to be satisfied that the applicant is a fit and proper person (upoyukta) to whom a licence may be granted.
This is not the same thing as the suitability simpliciter which this Court had to deal with in the Gold (Control) Act case.
The decision is, therefore, clearly distinguishable.
In the result all the applications fail and are dismissed.
The parties will pay and bear their own costs.
V.P.S. Petitions dismissed.
(1) [1970] (1) S.C.R.479.
| The Uttar Pradesh Krishi Utpadhan Mandi Adhiniyam, 1964 as amended by U.P. Acts 25 of 1964 and 10 of 1970.
was enacted to provide for the regulation of the sale and purchase of agricultural produce, to protect the producers from exploitation and for the establishment, superintendence and control of markets in U.P.
Under section 5, the State Government is empowered to declare a particular area as market area and under section 7.
the principal market yard and sub market yards are declared.
Section 7(2) provides that no person shall in a principal market yard or sub market yard carry on business as a trader, broker, commission agent etc., in respect of specified agricultural produce except in accordance with the conditions of a licence obtained from he concerned market committee.
Sec. 13 provides for the constitution of the market committee and for representation on the committee from different sources.
Under section 17.
the committee has power to issue, renew, suspend or cancellicences.
Section 25 provides for appeals against orders of the committeeto the Director of Agriculture and section 32 for revision by the State Government Under section 16(2)(vii), the committee has to provide accommodation for storage.
40 enables the ' State Government to make rules Rule 70(4)(1)provides that the Committee may issue a licence to an applicant if it is satisfied.
(a) that the applicant is solvent and (b) that the applicant is a desirable person.
Rule 76(1) provides that every consignment of specified agricultural produce brought for sale into the principal or sub market yard shall be sold by open auction.
The petitioners who were traders or commission agents, dealing in agricultural produce, challenged the validity of the Act, and the rules made thereunder on the ground of violation of articles 14 and19(1)(g).
They contended that : (1) that constitution of the committee is prejudicial to their interests since.
it will have a perpetual majority of producers, (2) the entrustment of licensing to such a committee is an unreasonable restriction on their right to trade, (3) there is no guidance in the matter of grant of licences, the criteria mentioned in r. 70(4) being vague, (4) the requirement to provide storage space for the producers by the petitioners is an unreasonable restriction, and (5) r. 76(1) is ultra vires section 40 and also places an unreasonable restriction on the petitioners.
Dismissing the petitions, HELD : (1) Under section 13, the Committee is to consist of 23 members and out of, them only 10 are from the producers.
Therefore the submission is factually inaccurate as there is no question of a perpetual majority of producers.
[381G H] (2) There are no unreasonable features in the scheme of representation in the committee.
Under 8. 13, 8 producers are elected who may represent the 8 categories of agricultural produce mentioned in the schedule and two producers are nominated from the schedule castes by the Government, because, they may not get due representation in the election.
The performance of the duty of licensing by such a committee cannot prejudice the petitioners.
In fact, none of the petitioners has been refused a licence.
Though usually some governments] authority is charged with the duty of granting licences under various Acts, that does not prove that the duty cannot be property and impartially exercised by a Committee representing various interests which are 377 vitally interested in the trade.
of agricultural produce.
If in a particular case.
the action of the Committee is mala fide ' or otherwise objectionable such grievance can be properly dealt with.
[381H 382E] (3) It is not correct to say that there is no guidance in the Act in the matter of grant of license and that the two criteria provided by rule 70(4)(1) are vague.
[382E F] (a) The Committee which is entrusted with the duty of granting licences consists of people from different sources vitally interested in the marketing of agricultural produce, as well as Government officials.
It is a well represented Committee which is expected to know the object and purpose of the Act of ' which it is a creature.
There is sufficient guidance from the preamble and other provisions of the Act with which the members of the Committee would be familiar and conversant, for example, section 16 of the Act and the particulars in Forms XI and XIII.
for the application of a licence and Conditions of a licence.
With the help of Government officials in the committee there is no reason to think that the Committee will not function smoothly or to apprehend that licence would be refused arbitrarily.
There is also a limitation on the power of the Committee in that the Act insists that the Committee should record its reasons while refusing a licence.
Further, there is provision of appeal against the decision of the Committee and a further revision to the State Government.
[382F 383D] (b) One of the two criteria mentioned in r. 70(4)(i).
is solvency and the criterion on the score or 'bankruptcy is well known and cannot be said to be vague or indefinite.
As regards the second criterion, namely, that the applicant should be a desirable person the Act itself provides sufficient guidance to the Committee in the matter of deciding whether a particular applicant is or is not a proper person to hold the licence.
[383F H] (4) The requirement to provide a storage space is only an interim measure pending arrangements by the Committee for proper storage as required by section 16.
Under r. 52(4) storing of the specified agricultural produce shall be subject to the payment of such storage fee and other conditions as may be: specified in the bye laws.
Since the storage by the traders in the market yards will always be paid for under the rule there is no substance in the contention that the requirement is unreasonable.
[384A B] (5)(a Rule 76(1) is not ultra vires section 40 Section 9(2) restricts the right to carry on trade except under and in accordance with the licence_ and section 17 provides for issuing or renewal of licences subject to the restrictions under the rules, and these sections are not challenged.
Section 40 empowers the State Government to make rules for carrying out the purposes of the Act, and under section 40(2) (xxvii), r. 76(1) only prescribes open auction as the mode of sale.
[384B D] (b) The rule does not violate the fundamental right of the petitioners under article 19(1)(g).
[384G] The definitions of sale and purchase in the.
Act do not run counter to the provisions relating to auction sale under, the rule and, it Could not be field to be an unreasonable mode considered in the entire scheme of the Act.
in order that the producers may obtain the best price for their commodity, sale by open auction is prescribed under the rule to fulfil one of the important purposes of the Act.
The legislature is intervening to see that the producers get the maximum pecuniary return possible in the transaction and as a necessary concomitant eliminated the made of private sale by individual negotiation resulting in malpractices.
Besides, by the Proviso to the rule the restriction is not allowed to operate in the case of retail sales.
[384D G] Lala Hari Chand Sarda vs Mizo District Council and all) .
and Harakchand Ratanchand Banthia and ors.
vs Union of India and ors.
; , distinguished.
|
Appeal No. 24 of 1962.
Appeal by special leave from the award dated November 23, 1960, of.
the Central Government Industrial Tribunal, Dhanbad in reference No. 31 of 1960.
M. C. Setalvad, Nonicoomar Chakravarty and B. P. Maheshwari, for the appellant.
M. K. Ramamurthi, for Dipat Datta Choudhri, for respondents Nos. 1 to 13.
January 23.
The judgment of the Court was delivered by WANCHOO, J.
This is an appeal by special leave against the order of the Central Government Industrial Tribunal, Dhanbad.
The brief facts necessary for present purposes are these.
A dispute was referred by the Central Government under s, 10 of the Industrial Disputes Act, No. 14 of 1947, (hereinafter referred to as the Act) with reference to the thirteen workmen involved in this appeal in the following terms "Whether the dismissal of the following thirteen workmen of Bhatdee Colliery, swa 711 justified ? If not, to what relief are they entitled and from which date ?" It appears that the thirteen workmen had physically obstructed the surface trammers working in the colliery on different dates, namely October 20, October 27, and November 3,1959 .some of them had also incited the other workmen to join in this act of obstructing the loyal and willing trammers so that they may be prevented from working.
This happened during a strike which was begun on October 20, 1959 by the Colliery Mazdoor sangh to which the thirteen workmen in question belonged.
In consequence the appellant served charge sheets on the thirteen workmen on November 9, 1959 charging that "they physically obstructed the surface trammers on duty at No. 1 and 2 Inclines from performing their duties and controlling the movement of the tubs by sitting in between tramline track and inciting" on various dates, thus violating regulation 38 (1) (b) of the Coal Mines Regulations.
They were asked to explain within 48 hours why disciplinary action should not be taken against them under r. 27 (19) and r. 27 (20) of the Coal Mines Standing Order.
The workmen submitted their explanations and an inquiry was held by the Welfare Officer of the appellant.
The Welfare Officer found all the thirteen workmen guilty of the charges framed against them and recommended their dismissal.
As another reference was pending before this very tribunal in November 1959, the appellant made thirteen applications to the tribunal under section 33 (2) (b) of the Act for approval of the action taken.
Though the workmen submitted their replies in those proceedings they did not contest them thereafter, and the tribunal approved of the action taken.
Thereafter the present reference was made under S.10 of the Act.
The case put forward by the workmen in the present reference was that there was no proper 712 enquiry as the workmen were not given a chance to defend themselves.
It was further submitted that the dismissals were nothing but victimisation pure and simple for trade union activities.
The tribunal apparently held that the inquiry was proper, though it has not said so in so many words in its award.
It may be added that it could hardly do otherwise, for it had already approved of the action taken on applications made under section 33 (2)(b) of the Act.
If the inquiry had not been proper,the tribunal would not have approved of the dismissals.
But the tribunal held that this was a case of victimisation.
It therefore set aside the order of dismissal and ordered the reinstatement of the thirteen workmen within one month of its order becoming operative and ordered that they should be treated as on leave without pay during the period of forced unemployment.
It did not grant back wages as the workmen had also contributed to their forced unemployment to some extent.
In the present appeal, the appellant contends that there was no evidence to justify the conclusion of the tribunal that the dismissals were an act of unfair labour practice or victimisation.
We are of opinion that this contention of the appellant must prevail.
The tribunal was.
not unaware of the fact that where a domestic inquiry is held properly.
the tribunal does not sit in appeal on the findings of the domestic tribunal and it can only interfere with the punishment inflicted as a result of the domestic inquiry where there is want of good faith or basic error or violation of the principles of natural justice, or where the findings are perverse or baseless or the case is one of victimisation or unfair labour practice.
We have already indicated that the tribunal did not find that there was any basic error or violation of the principles of natural justice in the holding of the inquiry; nor did it find that the findings of the inquiry 713 officer were perverse or baseless.
It could hardly do so in the face of its own approval of the action taken on applications made to it under section 33 (2) (b) of the Act, for if it had found that the inquiry was not proper, it would not have approved of the action taken against the workmen by the appellant when it was approached under section 33 (2) (b).
We must therefore proceed on the assumption that the inquiry was held properly and the inquiry officer who held the inquiry was justified on the evidence before him in coming to the conclusion which he did, namely, that the charges had been proved.
The tribunal however posed a further question as to victimisation in this way : "But even if assume that these men were guilty of the offence complained of, let me pause and consider if there is victimisation." .It then proceeded to point out that the workmen concerned had put in ten years service or more and their previous record of service was good.
They were important office bearers of the union and some of them were also protected workmen.
It then referred to previous disputes between the appellant and the union of which these workmen were members and was of the view that the union and its leaders were "eye sore to the appellant.
" The tribunal was, however, conscious that merely because certain workmen were protected workmen they were not thereby given complete immunity for anything that they might do even, though it might be misconduct meriting dismissal.
But it, pointed out that the misconduct complained in this case entailed fine, suspension or dismissal of the workmen, and the appellant chose dismissal, which was the extreme penalty.
It referred to a decision of the Calcutta High Court in National Tobacco Company of India Ltd. vs Fourth Industrial Tribunal (1), where it was held that in a case where the punishment meted out was unconscionable or grossly out of proportion to the nature of the offence that may itself be a ground for holding that the 714 dismissal was an act of victimisation.
It seems to have held that the punishment of dismissal in this case was unconscionable or at any rate grossly out of proportion to the nature of the offence and therefore came to the conclusion that this was a case of victimisation.
Now there is no doubt that though in a case of proved misconduct, normally the imposition of a penalty may be within the discretion of the management there may be cases where the punishment of dismissal for the misconduct proved may be so unconscionable or so grossly out of proportion to the nature of the offence that the tribunal may be able to draw an inference of victimisation merely from the punishment inflicted.
But we are of opinion that the present is not such a case and no inference of victimisation can be made merely from the fact that punishment of dismissal was imposed in this case and not either fine or suspension.
It is not in dispute that a strike was going on during those days when the misconduct was committed.
It was the case of the appellant that the strike was unsatisfied and illegal La it appears that the Regional Labour Commissioner, Central, Dhanbad, agreed with this view of the appellant.
It was during such a strike that the misconduct in question took place and the misconduct was that these ' thirteen workmen physically obstructed other workmen who were willing to work from doing their work by sitting down between the tramlines.
This was in our opinion serious misconduct on the part of the ' thirteen workmen and if it is found as it has been found proved punishment of dismissal would be perfectly justified.
It cannot therefore be said looking at the nature of the offence that the punishment inflicted in this case was grossly out of, proportion or was unconscionable, and the tribunal was not justified in coming to the conclusion that this was a case of victimisation because the appellant decided to dismiss these workmen and was not prepared to let them off with fine or suspension.
715 There is practically no other evidence in support of the finding of the tribunal.
It is true that the relations between the appellant and the union to which these workmen belonged were not happy.
It is also proved that there was another union in existence in this concern.
Perhaps the fact that there were two unions would in itself explain why the relations of the appellant with one of the unions to which these workmen belonged were not happy.
But the fact that the relations between an employer and the union were not happy and the workmen concerned.
were office bearers or active workers of the union would by itself be no evidence to prove victimisation, for if that were so, it would mean that the office bearers and active workers of a union with which the employer is not on good terms would have a carte blanche to commit any misconduct and get away with it on the ground that relations between the employer and the union were not happy.
We are therefore of opinion that the finding of victimisation in this case is based, merely on conjectures and surmises.
We have already considered the main reason given by the tribunal, namely, the nature of the punishment, and have held that that cannot be said to be unconscionable or grossly out of proportion to the nature of the offence.
Another reason given by the tribunal in support of the finding of victimisation is also patently wrong.
The tribunal says that in reports made to the police certain persons were mentioned as having taken part in the misconduct of October 27, 1959; but in the written statement filed by the appellant two other persons, namely Ratan Gope and Sohan Gope who were not mentioned in the police report, were also mentioned as having taken part in the incident of October 27.
The tribunal thereby concluded that Sohan Gope and Ratan Gope were falsely implicated in the incident of October 27.
Curiously, however, it went on to say that this might be a mistake 716 but added that it meant dismissal of these people and the finding in this respect was not only wrong but perverse.
It does appear 'that by mistake in para.
5 of the appellant 's written statement before the tribunal names of Ratan Gope and Sohan Gope are mentioned as having taken part in the incident of October 27.
But the charge sheets which were given to them were only about the incident of October 20.
The finding of the domestic inquiry also was with respect to the incident of October 20.
So it seems that there was no justification for the tribunal to hold that the finding was perverse, because there was no finding that these two persons had taken part in the incident of October 27.
There can be little doubt that there was a mistake in the written statement of the appellant for there was no charge against these two people about the incident of October 27 and no finding about it by the Welfare Officer.
The tribunal therefore was patently wrong in using this mistake as evidence of victimisation.
We are therefore of opinion that there is no evidence worth the name in the present case to support the tribunal 's finding as to victimisation and consequent want of good faith.
In the circumstances the tribunal 's award must be set aside.
We therefore allow the appeal. set aside the award of the tribunal and uphold the dismissal of the thirteen workmen concerned.
In the circumstances there will be no order as to costs.
Appeal allowed.
| The four accused persons stood their trial before the Additional Sessions judge for the murder of one Vishwanath.
The charge against them was that they in view of their common grudge a against the deceased, combined together and did away with the deceased.
They were charged under section 302 read with section 34 of the Indian Penal code and were also separately charged under section 302 of the Penal Code.
All pleaded not guilty to the charge and accused 1, 3 and 4 pleaded alibi, while accused 2 raised a plea of private defence.
The learned Additional Sessions judge acquitted all the accused on the ground that the prosecution witnesses were not speaking the truth and the version given by accused 2 was the probable one.
The State preferred an appeal to the High Court against the order of acquittal under section 302, read with section 34, but not against the acquittal under section 302 of the Penal Code.
The High Court acquitted accused 1, 3 and 4 on the ground that it was doubtful whether any one of them participated in the commission of the offence and convicted accused 2 on the ground that one or more of them might have participated in the offence.
Accused 2, the appellant, therefore, filed this appeal and contended that when three of the four named accused, who were charged under section 302, read with section 34, were acquitted, the court could not convict only one of the accused on the basis of constrictive liability.
Held that before a court could convict a person under section 302, read with section 34, it should come to a definite conclusion that the said person had a prior concert with one or more other persons, named or unnamed, for committing the said offence.
Held, further, that when accused were acquitted either on the ground that the evidence was not acceptable or by giving 679 benefit of doubt to them, the result in law would be the same it would mean that they did not take part in the offence.
The effect of the acquittal of accused 1, 3 and 4 is that they did not conjointly act with accused 2 in committing the murder.
If they did not act conjointly with the appellant, he could not have acted conjointly with them.
The judgment of the High Court does not indicate that persons other than the said accused participated in the offence, nor is there any evidence in that regard, therefore, the conviction of the appellant must be set aside.
Mohan Singh vs State of Punjab, [1962] Supp.
3 section C. R. 848, held inapplicable.
|
Civil Appeal No. 140 of 1979.
Appeal by Special Leave from the Judgment and Order dated 8 12 1978 of the Kerala High Court in C.R.P. No. 3450/78.
P. Govindan Nair, Sardar Bahadur Saharya, Vishnu Bahadur Saharya and Mrs. Baby Krishnan for the Appellant T. section Krishnamurthy Iyer, A. section Nambiyar, and P. Parmeswaran for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The respondent landlord filed a petition for eviction of the appellant tenant from the premises in dispute under section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, No. II of 1965, on the ground that the appellant had sub let the premises without the consent of the landlord.
The petition had a chequered career but finally the Rent Controller ordered eviction by his order dated July 31, 1974.
The order of the Rent Controller was confirmed, successively by the Subordinate Judge, the District Judge and, the High Court.
The tenant has now preferred this appeal by special leave of this Court under Art, 136 of the Constitution.
Shri Govindan Nair learned counsel for the appellant submitted that under section 108(j) of the , it was a term of every lease that the lessee might sub lease the whole or any part of his interest in the property and, therefore, unless the lease expressly prohibited the lessee from sub letting the whole or part of the premises, the landlord could not have recourse to section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act.
In order to appreciate the submission of Shri Govindan Nair, we may set out the relevant statutory provisions.
section 108(j) of the , is as follows: "108.
In the absence of a contract or local usage to the contrary, the lessor and the lessee of the immovable property, as against one another, respectively, possess the rights and are 141 subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased : (A) Rights and liabilities of the lessor (a) X X X X X X X X X (b) X X X X X X X X X (c) X X X X X X X X X (B) Rights and liabilities of the lessee (d) X X X X X X X X X (e) X X X X X X X X X (f) X X X X X X X X X (g) X X X X X X X X X (h) X X X X X X X X X (i) X X X X X X X X X (j) the lessee may transfer absolutely or by way of mortgage or sub lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it.
The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease; X X X X X X X X X section 11 of the Kerala Buildings (Lease and Rent Control) Act, No. II of 1965, to the extent that it is relevant is as follows: "11(1) Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted whether in execution of a decree or otherwise, except in accordance with the provisions of this Act: Provided that . . .
Provided further that . . (2) X X X X X X X X X (3) X X X X X X X X X (4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building: (i) if the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub lets the entire building or any portion thereof if the lease does not confer on him any right to do so".
The submission of Shri Govindan Nair was that if the lease did not expressly prohibit sub letting, the provision in section 108(j) of the which enabled a lessee to sub lease the whole or any part of his interest in the property had necessarily to 142 be read into every lease as one of its terms, and so read, it followed that the lease conferred on the tenant the right to sub let "the entire building or any portion thereof" so as to disentitle the landlord from seeking eviction of the tenant under section 11(4)(i) of the Kerala Act.
We are unable to agree with this submission.
Read plainly and without gloss, section 11(4)(i), simply and clearly, means that a tenant may be evicted on the ground of sub letting unless such sub letting is permitted by a term of the lease itself or by subsequent consent of the landlord.
What is necessary is an application of the mind and the resulting consensus between the landlord and the tenant.
If the clause "if the lease does not confer on him any right to do so" was not there in section 11(4)(i) the position would be unarguable that section 108(j) would offer no protection.
That much was also conceded by Shri Govindan Nair.
In our opinion, the addition of the clause did not improve matters for the tenant.
It only clarified matters to this extent that the right to sublet could be conferred on the tenant either at the time of the lease or subsequently, but it had to be conferred: it could not be claimed unilaterally by the tenant.
To interpret section 11(4)(i) in the manner suggested by Shri Govindan Nair would be to rewrite the provision as follows: "if the tenant. . . . . , without the consent of the landlord, transfers his right under the lease or sublets the entire building or any portion thereof, though prohibited by lease from doing so".
That, we are not called upon to do.
A little thought over the reason for section 11 (4)(i) will also throw some light.
Quite obviously, the legislature thought that the tenant whose tenancy was well secured and protected by the rights conferred by the Buildings (Lease and Rent Control) Act should alone be entitled to such security and protection and that the tenant should not be allowed to profit by the protection given to him by subletting the premises and extending the protection to others besides himself, unless the landlord by his act agreed to such a course.
Where the landlord had himself agreed that the tenant could sublet, the question would not arise.
Therefore, section 11 (4)(i) provides that subletting shall be a ground for eviction but not if it was by agreement of the landlord.
In V. Dhanapal Chettiar vs Yesodai Ammal(1) a Bench of seven judges of this Court had to consider the question whether notice under section 106 of the determining the lease was necessary before a landlord could move Rent Controller or other appropriate authority for the eviction of the tenant under the various State Rent Acts.
The Court held that it was not necessary and Untwalia, J., speaking for the Court, said: 143 "Section 108 deals with the rights and liabilities of lessors and lessees.
Many State Rent Acts have brought about considerable changes in the rights and liabilities of a lessor and a lessee, largely in favour of the latter, although not wholly.
The topic of Transfer of Property other than agricultural land is covered by Entry 6 of List III in the Seventh Schedule to the Constitution.
The subject being in the concurrent list, many State Rent Acts have by necessary implication and many of them by starting certain provisions with a non obstante clause have done away with the law engrafted in section 108 of the except in regard to any matter which is not provided for in the State Act either expressly or by necessary implication".
Later, he said: "But when under the various State Rent Acts, either in one language or the other, it has been provided that a tenant can be evicted on the grounds mentioned in certain sections of the said Acts, then how does the question of determination of a tenancy by notice arise? If the State Rent Act requires the giving of a particular type of notice in order to get a particular kind of relief, such a notice will have to be given.
Or, it may be that a landlord will be well advised by way of abundant precaution and in order to lend additional support to his case, to give a notice to his tenant intimating that he intended to file a suit against him for his eviction on the ground mentioned in the notice.
But that is not to say that such a notice is compulsory or obligatory or that it must fulfill all the technical requirements of section 106 of the ".
It is clear from what has been said that not all the rights conferred on landlord and tenant by section 108 and other provisions of the have been left in tact by the various State Rent Acts and that if a State Rent Act makes provision for eviction on certain specified grounds, eviction cannot be resisted on the basis of rights conferred by the .
Section 108(j) of the stands displaced by section 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act and is no defence to an action for eviction based on section 11(4)(i).
We are satisfied that the appeal is without merit and is accordingly dismissed with costs.
P.B.R. Appeal dismissed.
| The appellants were the tenants of the respondents landlord.
The suit filed by the respondents for eviction of the appellants under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 on the ground of default in repayment of rent was decreed in spite of the fact that the appellants deposited all the rents before the date of filing of the suit, the future rent in advance before the first date of hearing and also the interest and cost of the suit amounting to Rs. 23 on the first date of hearing.
These deposits were made under Section 31 of the Punjab Relief of Indebtedness Act, 1934 and under Section 13 of the Rent Act before the Rent Controller cum Senior Sub Judge respectively.
The suit was decreed on the ground that the said deposit was not a valid tender and the appellants could not claim any protection under the proviso to Section 13(2) of the Rent Act but the Appellate Court set aside the judgment of the Trial Court on the ground of the validity of the notice.
The High Court in revision following the decision of this Court in Yasodai Ammal 's case set aside the appellate order and decreed the suit.
Both the Appellate Court and the High Court never went into the question of deposit of rent so as to protect the tenant from eviction.
Hence the appeal by obtaining the special leave from this Court Allowing the appeal, the Court ^ HELD (1) The main object of the Relief of Indebtedness Act, 1934 is to give relief to debtors and protect them from paying excessive rates of interest.
From the plain and unambiguous language of Section 31, it cannot be spelt out that the Act applies only to a particular type of debtors and creditors.
Section 31 has been couched in the widest possible terms and the legislature has advisedly not used the word debtor in Section 31 so as to confine the provisions of the section only to the 'debtor ' defined in the said Act and to no other but the legislature intended to embrace within its fold all persons owing money including tenants who are in arrears.
Thus, under Section 31 of the Indebtedness Act any person who owes money is entitled to deposit in court the money owed either in full or in part in tho name of his creditor.
It is clear, therefore, that Section 31 would apply even to a tenant who owes money to his landlord by way of rent due and he can also enjoy the facility provided by Section 31 of the Indebtedness Act.
[481 C, 482 E G] 477 (2) The combined effect of the provisions of Section 31 of the Indebtedness Act and the Notification No. 1562 Cr. 47/9224, dated 14th April, 1947 published in the Punjab Gazette Extraordinary and the Notification made under the Punjab Courts Act, 1918 by which a Senior Sub Judge was to function as a Controller under the Rent Act is that Section 31 is constituted a statutory agency or machinery for receiving all debts and paying the same to the creditors.
This is the dominant purpose and the avowed object of Section 31 of the Indebtedness Act.
It thus follows as a logical consequence that any deposit made by a tenant under Section 31 would have to be treated as a deposit under the Rent Act to the credit of the landlord and which will be available to him for payment whenever he likes to withdraw.
[482 H, 483 H 484 B] Kuldip Singh vs The State of Punjab & Anr. , followed.
Mam Chand vs Chhotu Ram & Ors I.L.R. 1964 Punjab 626 and Khushi Ram vs Shanti Rani & Ors.
1964 Punjab Law Reports 755, approved.
Vidya Prachar Trust vs Pandit Basarat Ram , overruled.
(3) To give a narrow meaning to the words "person who owes money" used in Section 31 of the indebtedness Act would be to unduly restrict the scope of Section 31 which is contrary to the intention of the legislature.
Furthermore, under the proviso to Section 13(2) of the East Punjab Urban Rent Restriction Act, 1949, the tenant was required to deposit interest also in order to get protection of the proviso.
Hence, the tenant was a debtor with a sort of a statutory agreement to pay interest and would therefore squarely fall within the definition of Section 31 of the Indebtedness Act.
[485 G 486 A] (4) There is absolutely no bar either under Section 6 or under Section 19 of the East Punjab Urban Rent Restriction Act, 1949 to receive future rent.
Section 6 of the Act merely provides that where a fair rent is fixed by the Controller it would not be open to the landlord to receive any amount in advance in excess of the fair rent.
Section 6, therefore, clearly deals with a situation where a fair rent under Section 6 is fixed by the Controller on the application of the parties.
Neither in the present case nor in Vidya Prachar Trust 's case was there any allegation that a fair rent had been fixed by the Controller.
So long as fair rent is not fixed by the Controller the parties are free to agree to payment of any rent and neither Section 6 nor Section 19 would be attracted to such a case.
Moreover, even if the tenant were to deposit future rent it is always open to the landlord not to withdraw the future rent but confine himself to taking out only the rent that is in arrears which will not at all violate any provision of the Rent Act.
Therefore, a deposit by a tenant under Section 31 of the Indebtedness Act was a valid tender.
[486D, G H; 487A C] (5) Like all other Rent Control Acts in the other States in the country, the Rent Act is a piece of social legislation which seeks to strike a just balance between the rights of the landlords and the requirements of the tenants.
The Act prevents the landlord from taking the extreme step of evicting the tenant merely on the ground of default in payment of rent if the landlord is guaranteed entire payment of the entire arrears of rent, cost and interest.
Thus the proviso to Section 13(2) of the East Punjab Urban Rent Restriction Act, 1949 affords a real and sanctified protection to the tenant which should not be nullified by giving a hypertechnical or literal 478 construction to the language of the proviso which instead of advancing the object of the Act may result in its frustration.
[487F G] (6) The statutory provisions of the proviso which is meant to give special protection to the tenant, if property and meaningfully construed, lead to the inescapable conclusion that the rent together with cost and interest, etc., should be paid on or before the date of the first hearing and once this is done, there would be sufficient compliance with the conditions mentioned in the proviso.
In the instant case all the necessary conditions of the proviso of Section 13(2) of the Rent Act were fully complied with.
[487H 488 A, B] Sheo Narain v Sher Singh ; , applied.
(7) Once it is held that the deposit under section 31 of the Indebtedness Act is a valid tender having been deposited on or before the first date of hearing, the exact point of time when the deposit is made is wholly irrelevant and will not amount to non compliance of the conditions of the proviso to Section 13(2) of the Rent Act.
In the instant case, the deposit of the arrears of rent had been made prior to the filing of ejectment petition and the interest and cost were raid on the first date of hearing.
[489B C]
|
Civil Appeal Nos.
1992 1997 and 2219 of 1969.
Appeals by Special Leave from order dated 16 1 69 and 19 3 69 of the Govt.
of India, Min. of Finance Dept. of Revenue in Orders Nos. 8637 8642/68 and 1408/69.
Y. section Chitale, J. B. Dadachanji and D. N. Misra for the Appellant in all appeals.
section Markandeya and Girish Chandra for the Respondents in all the appeals.
The Judgment of the Court was delivered by SHINGHAL J.
These appeals by special leave arise out of an order of the Central Government dated January 16, 1969 by which six revisional applications of the appellants were dismissed, and a similar order dated March 19, 1969, in the remaining case.
As the basic facts and the law governing them are quite similar, it will be sufficient to deal with the common point in controversy before us on the basis of the admitted facts, and to dispose of the appeals together.
The appellants obtainted licences for the import of 102 cases of 3,000 Kgs.
of nylon yarn.
The yarn was shipped to Bombay on the basis of a letter of credit in favour of the foreign suppliers.
When the shipment arrived, the appellants received the bill of lading and other documents of title from the bankers on or about August 23, 1965, and paid for the same.
They lodged the bill of entry the same day, and it has been claimed that the goods were assessed for duty by the customs authorities at a certain figure.
The appellants stored the goods in the warehouse on December 22, 1965.
They cleared 32 cases for "home" consumption on May 10, 1966, and there is no controversy in regard to it.
The currency was devalued on June 6, 1966, and the Customs (Amendment) Ordinance, 1966, was promulgated on July 7, 1966, by which sections 14 and 15 of the , hereinafter referred to as the Act, were amended.
The Ordinance was replaced by the Customs (Amendment) Act, 1966.
The appellants cleared 12 cases of the aforesaid consignment on or about September 1, 1966.
Another 12 cases were cleared on October 10, 1966, and 46 cases were cleared in two lots on or about December 30, 1966 and February 20, 1967.
Their grievance was that the cases were allowed to be cleared on payment of "enchanced" duty 1144 according to the amended provisions of the Act.
They paid the duty under protest and applied for refund of the excess payment on the ground that the amended law was not applicable as the consignments had been received, stored and assessed to duty before the promulgation of the Ordinance.
The applications of the appellants for refund were rejected by the customs authorities, and their appeals were dismissed by the Appellate Collector of Customs on the ground that the amended sections 14 and 15 of the Act were applicable to the consignments in question.
The appellants filed revision applications before the Central Government, but they were dismissed by the aforesaid common impugned order dated January 16, 1969.
They have therefore approached this Court for a redress of their grievance.
The facts relating to Civil Appeal No. 2219 of 1969, are quite similar, except that the consignment in that case was of 63 cases of nylon yarn, which were stored in the warehouse on December 14, 1965, and were cleared on May 25, 1967.
In that case also the appellants paid the duty under the provisions of the amended sections under protest, and unsuccessfully applied for refund of the socalled excess duty.
They failed in their appeals to the Appellate Collector of Customs and their application for revision was rejected by the Central Government on March 19, 1969.
It will thus appear that the controversy in these two sets of cases relates to the short question whether the customs authorities were justified in applying the rate of duty (to the imported goods in question) according to the rate prevalent on the date of their actual removal from the warehouse.
It will be recalled that the Customs (Amendment) Ordinance, 1966, was promulgated and came into force on July 7, 1966, and was replaced by the Customs (Amendment) Act, 1966.
The amendments in question were by way of substitution of sections 14 and 15 of the Act by the new sections.
It has been argued by Mr. Chitale for the appellants that the material change was that made in subsection (1) of section 15 of the Act by substituting the words "The rate of duty, rate of exchange" for the words "The rate of duty".
He has therefore argued that the customs authorities were not entitled to take the new "rate of exchange", at the depreciated value of the currency, into consideration in respect of the consignments in question as they had been shipped to Bombay and stored in the warehouse before the amended section 15 came into force.
The learned counsel tried to argue that the orders of assessment of the customs duty were also made before the amendment Ordinance 1145 was promulgated on July 7, 1966, but he did not pursue that line of argument because he was not in a position to produce the so called assessment orders.
But, as we shall show, even if it were assumed that any such order or orders had been made before July 7, 1966, that could not possibly affect the correct rate of duty applicable to the imported goods.
A reference to sections 14 and 15 of the Act will show that while section 14 deals with the valuation of goods for purposes of assessment, it is section 15 which specifies the date for determination of the rate of duty and tariff valuation of imported goods.
The amended section reads as follows, "15(1) The rate of duty, rate of exchange and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force, (a) in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) in the case of goods cleared from a warehouse under section 68, on the date on which the goods are actually removed from the warehouse; (c) in the case of any other goods, on the date of payment of duty: Provided that if a bill of entry has been presented before the date of entry inwards of the vessel by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards.
(2) The provisions of this section shall not apply to baggage and goods imported by post.
(3) For the purposes of section 14 and this section (a) "rate of exchange" means the rate of exchange determined by the Central Government for the conversion of Indian currency into foreign currency or foreign currency into Indian currency; (b) "foreign currency" and "Indian currency" have the meanings respectively assigned to them in the Foreign Exchange Regulation Act, 1947.
" It is thus the clear requirement of clause (b) of sub section (1) of section 15 of the Act that the rate of duty, rate of exchange and tariff 1146 valuation applicable to any imported goods shall be the rate and valuation in force on the date on which the warehoused goods are actually removed from the warehouse.
A cross reference to section 49 of the Act shows that an importer may apply to the Assistant Collector of Customs for permission to store the imported goods in a warehouse pending their clearance, and he may be permitted to do so.
The other relevant provision is that contained in section 68 of the Act which provides that the importer of any warehoused goods may clear them for "home consumption" if, inter alia, the import duty leviable on them has been paid.
That is why clause (b) of sub section (1) of section 15 of the Act makes a reference to section 68.
It is therefore quite clear that the rate of duty, rate of exchange and tariff valuation shall be those in force on the date of actual removal of the warehoused goods from the warehouse.
As it is not in dispute before us that the goods, which are the subject matter of the appeals before us, were removed from the warehouse after the amending Ordinance had come into force on July 7, 1966, the customs authorities and the Central Government were quite right in taking the view that the rate of duty applicable to the imported goods had to be determined according to the law which was prevalent on the date they were actually removed from the warehouse, namely, the amended sections 14 and 15 of the Act.
There is therefore no force in the argument that the requirement of the amended section 15 should have been ignored simply because the goods were imported before it came into force, or that their bills of lading or bills of entry were lodged before that date.
As we find no force in these appeals, they are dismissed with costs.
N.V.K. Appeals dismissed.
| The power of attorney by which the plaintiff constituted the defendant as his agent, authorised the defendant amongst other things to discharge debts and invest moneys on behalf of the plaintiff.
In the suit filed by the plaintiff, the relief claimed was for directing the defendant to render true and correct accounts of all transactions entered into by him and for amounts received by him on behalf of the plaintiff.
In his written statement the defendant gave details of amounts invested by him in banks and other relevant details.
An issue whether the suit had been properly valued and proper court fee had been paid was answered by the trial court in favour of the plaintiff.
On appeal by the plaintiff, the High Court held that since the plaintiff had quantified the amount payable by the defendant, the suit should have been valued on the basis of amount quantified and that not having been done, the suit had not been properly valued.
Allowing the appeal, ^ HELD: (1) The estimate of the relief as given by the plaintiff was adequate and reasonable and was not an under estimate.
[392C] (2) The High Court was in error in holding that the plaint was clear, that apart from the money which the defendant was liable to pay to him as his agent the plaintiff had quantified the amount payable by the defendant.
The suit was not only for accounting of the amounts received but also for an account of the transactions of the defendant as power of attorney agent.
Had the defendant been able to establish that in the course of his management he had invested moneys according to the power of attorney, he would have properly accounted for his management.
The defendant himself had stated that the suit was for accounting of his management as power of attorney agent.
He pleaded that the moneys had been remitted to the plaintiff by investment or otherwise.
[389H 390B] (3) The amount of the court fee payable in suits for accounts as provided for in section 7(iv)(f) of the Court Fees Act, 1870 is according to the amount at which relief sought is valued in the plaint or memorandum of appeal.
In a suit for accounts it is not possible for the plaintiff to estimate correctly the amount which he may be entitled to because in a suit in which the plaintiff asks for accounting regarding the management by a power of attorney agent he might not know the state of affairs of the defendant 's management and the amount to which he would be entitled to on accounting.
[390G H] 386 (4) Even where section 35 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 is applicable, it is necessary that the plaintiff should give a fair estimate of the amount for which he seeks relief.
Order VII R. 11 CPC casts a duty on the court to reject a plaint when the relief claimed is under valued.
[391 D E] Chillakuru Chenchurami Reddy vs Kanupuru Chenchurami Reddy, I.L.R. , approved.
(5) Before coming to the conclusion that the suit is under valued the court will have to take into account that in a suit for accounts the plaintiff is not obliged to state the exact amount which would result after taking all the account.
If he cannot estimate the exact amount he can put a tentative valuation upon the suit for accounts which is adequate and reasonable.
The plaintiff cannot arbitrarily and deliberately under value the relief.
All that is required is that there must be a genuine effort on the part of the plaintiff to estimate his relief and the estimate should not be a deliberate under estimation.
[391 H 392 B]
|
Appeal No. 658 of 1967.
Appeal from the judgment and order dated June 27, 1966 of the Assam and Nagaland High Court in Civil Rule No. 296 of 1964.
Naunit Lal, for the appellants.
Sarjoo Prasad and section N. Prasad.
for the respondent.
307 The Judgment of the Court was delivered by shah, C. J.
On October 24, 1957 Rameshwar Agarwala hereinafter called the respondent applied to the Deputy Com missioner, Lakhimpur, for settlement of a tea garden for "special cultivation of tea".
By order dated March 11, 1964 the Government of Assam permitted settlement of the tea garden for special tea cultivation on payment of Rs . 3,86,008/ as premium.
The respondent failed to pay the amount demanded.
The State of Assam then put up the tea garden for auction.
The respondent moved a petition in the High Court of Assam for an order declaring that in fixing the amount of the premium at Rs. 3,86,008/the State acted illegally, and that the order was void and unenforceable at law because in fixing the amount of the premium the State acted without jurisdiction and the order directing auction of the tea garden for not depositing the amount demanded was also illegal.
The High Court, upheld the contention and ordered the State of Assam not to, give effect to the order dated March 31, 1964 calling upon the respondent to pay the amount due within two months of the order and the order dated November 26, 1964 directing that the tea garden be put up for auction.
With certificate granted by the High Court, the State of Assam has appealed .to this Court.
The tea garden belonged to the State of Assam.
The Govern ment of Assam in the absence of any binding statutory provision, could settle the tea garden on such commercial terms it could reasonably obtain.
The respondent applied to the Deputy Commissioner for settlement of the tea garden and requesting the State Government for early fixation of the amount of premium.
When the premium was fixed by the Government the respondent protested, contending that the action of the State was illegal Before the High Court it was contended by the Respondent that the power of the State Government to fix the premium for which it could lease the tea garden was restricted by Rule 40 framed under the Assam, Land Revenue Regulations.
The Rule reads "In addition to the land revenue payable under rule 17 and value of the timber assessed under rule 37, an applicant to whom a lease for special cultivation is granted shall be liable to pay premium.
The rate of premium shall be fixed by the State Government from time to time for each locality.
The reasons which persuaded the High to upheld the plea, raised by the respondent may be set out in their own words : "The only power which the Government has got, is to fix the rate of premium under Rule 40 of the Rules 308 under the Land Revenue Regulation and the question for us to consider is whether the order of the Government fixing the premium for settlement of this land for special cultivation is an order in conformity with Rule 40.
In our opinion, what Rule 40 provides is to confer upon the Government power to fix the rate of premium in every case which shall be payable for the settlement and it is only the Deputy Commissioner that is authorised to settle the land.
The whole purpose, of Rule 40 is to confer power on the Government to fix the rate of premium which will be valid for a particular locality and that the Deputy Commissioner has to make the settlement.
He is given the power to realise the premium fixed by the Government from time to time and to see that no document of lease is issued before the premium has been paid by the intending holder.
But Rule 40 does empower, in our opinion, the State Government to fix the amount of premium in the case of a particular settlement in a particular locality. . . the rate of premium for a particular locality and the Legislature when framing the rules never intended that the Government should be empowered to fixing the total amount of premium payable by the intending holder.
In our opinion, therefore, the order passed by the Government directing the authorities to offer the land for settlement in case the petitioners pay Rs. 3,86,000/ is not in conformity with Rule 40 and this order cannot be given effect to.
" The expression "locality" is not defined in the Act or in the Rules.
We see no warrant for the assumption made by the High Court that in settling the premium to be fixed in respect of its own property, the Government is bound to fix the premium generally in respect of a region.
The Government is by the Act or the Rules not disqualified from fixing the premium to be paid in respect of an individual tea garden.
In the absence of any indication to the contrary a tea garden may in our judgment be appropriately regarded as a locality within the meaning of Rule 40.
The power to settle a tea garden on payment of land revenue, value of the timber and premium is to be exercised according to the Rules.
The rate of premium may be fixed by the State Government according to its commercial value.
In the absence of any restriction imposed upon the State Government requiring that a general rate shall be fixed covering a specified area larger 309 than a tea garden there is nothing which prohibits the State Government from fixing the rate of premium having regard to the commercial value of the tea garden.
In the present case the Sub Divisional Officer reported that the price of the land of the Dirpai tea garden be valued at Rs.1 500/ per bigha and on that basis the State Government computed the premium to be paid in respect of the entire Jokai Tea Garden.
Fixation of a rate of Rs. 5001 per bigha in respect of the entire area of the tea garden may be regarded as a premium fixed for the locality of the tea garden.
The matter rested entirely in contract between the Respondent and the State Government.
There was an offer by the respondent for settlement of the tea garden.
He agreed to pay the land revenue payable under r. 17.
He also agreed to pay the value of the timber assessed under r. 37.
For settlement of the tea garden for special cultivation the respondent was also liable to pay premium.
The quantum of liability to pay land revenue was governed by r. 17 and value of the timber was governed by r. 37.
The liability to pay premium had to be fixed by the State Government.
In the absence of any restriction placed by the Rules upon the power of the St ate Government, we do not think that the High Court had any jurisdiction to compel the State to enter into a contract to settle the tea garden upon the respondent on payment of premium after determining a general rate for a region larger than the tea garden.
The High Court was in error in setting aside the order passed by the Government of Assam and in declaring that the offer to settle the land of the Dirpai Tea Garden on payment of Rs. 3,86,008/ was not in conformity with r. 40.
The High Court also erred in directing that auction of the land for nonpayment of the premium shall be set aside.
The appeal is allowed and the petition filed by the respondent will be dismissed.
The respondent will pay the costs in this Court and in the High Court.
R.K.P.S. Appeal allowed.
| In a suit for partition of bakash land a preliminary decree was passed.
The defendants appellants, claiming to be in actual possession of the bakasht land, filed a petition contending that the consequence of section 6.
of the Bihar Land Reforms Act, 1950 (which came into force in the meanwhile) was to put an end to the proprietor 's possession of the bakasht land by causing them to vest in the State and simultaneously creating a tenancy in favour of the person in khas possession thereof, and therefore, no final decree could be passed.
The trial court accepted the contention and dismissed the plaintiff 's application for passing final decree.
In appeal, the High Court set aside the order.
In appeal to this Court, HELD : Even if the appellants were in actual khas possession within the meaning of section 2(k) of the Act, it must be held that the plaintiff respondent, who was a co sharer, was in constructive possession through the appellants, as, under the law, possession of one co sharer is possession of all co shares.
The appellants did not claim to be trespassers on the property neither did they claim any title to the lands adversely to the respondent.
The deeming provision of section 6 must, therefore, enure for the benefit of all, who in the eye of land) would be regarded as in actual possession.
Therefore, the respondent had not lost his share in the bakasht lands and had a right to his share in them, though not as tenure holder or proprietor, but as a raiyat under the provisions of the Act.
[645 E G] P. L. Reddy vs L. L. Reddy, ; , 202, followed.
Surajnath Ahir vs Prithitnath Singh, , Ram Ran Baijal Singh vs Behari Singh alias Bagandha Singh, , section P. Shah vs, B. N. Singh; , and Mahant Sukhdeo Das vs Kashi Prasad, Tewari referred to.
|
Appeal No. 441 of 1973.
From the Judgment & Order dated the 12th February, 1973 of the Assam & Nagaland High Court in Election Petition No. 5 of 1972.
P. K. Chatterjee, A. Sharma and Rathin Das, for the appellant.
section K. Hom Choudhury and section K. Nandy, for respondent No. 1.
The Judgment of the Court, was delivered by ALAGIRISWAMI, J.
In the election held to the Meghalaya Legislative Assembly from Songsak Constituency on 9th March 1972 the appellant was declared elected having received 819 votes as against 176 received by the 1st respondent and 98 votes received by the 2nd respondent.
The appellant was a candidate set up by the All Party Hills Leaders Conference and the 1st respondent was supported by the Hill State People 's Democratic Party (H.S.P.D.P.), though that party was not a recognised party.
The symbol allotted to the 1st respondent by the Election Commission was "two leaves".
The 1st respondent filed an election petition questioning the election of the appellant on the ground that be was guilty of a corrupt practice falling under section 123(4) of the Representation of the People Act, 1951.
That election petition having been allowed and appellant 's election set aside by the High Court of Assam, Nagaland, Meghalaya, Manipur and Tripura this appeal has been filed against the decision of the High Court.
802 The allegations in support of the petition were that on 3 days before the election, that is on the 25th of February 1972, the 5th of March 1972 and the 7th of March 1972, the appellant distributed dummy ballot papers in three places, Bollonggiri, Daggal Bazar and Songsak respectively.
The dummy ballot papers marked as Ext.
4 in this case contained a "boat" as the election symbol of the 1st respondent instead of the "two leaves" allotted to him as the election symbol.
The case of the respondent was that this was a false statement reasonably calculated to prejudice the prospects of his election.
The appellant 's case was that the dummy ballot papers were got printed by A. M. Sangma, the Secretary of the A.P.H.L.C., that he took the bundle of dummy ballot papers from Tura, the headquarters of the A.P.H.L.C. and when he was staying at the rest house in Bollonggiri he found out the mistake that had crept in the dummy ballot papers, that after consultation with the Chief Minister of Meghalaya, W.A. Sangma, who has been examined as R.W. 12, he issued a correction statement marked as Ext.
E, that the dummy ballot papers were not distributed, that there was therefore no publication and that it was not calculated to prejudice the prospects of the 1st respondent 's election.
The High Court after a very close, careful and restrained appreciation of the evidence in this case has come to the conclusion that the dummy ballot papers were distributed by the appellant at Bollonggiri and Daggal Bazar and we have also come to the same conclusion.
As we agree with the learned Judge we do not think it necessary to refer in elaborate detail to the evidence.
We shall refer to the evidence in broad outline and show that his conclusion is fully justified, With regard to the distribution of ballot papers like Ext. 4 in Bollonggiri on the 25th of February, the two witnesses who gave evidence are Willingson Sangma, P.W.8 and Jangnal Marak, P.W.4.
According to them the appellant distributed the dummy ballot papers and they produced two ballot papers as having been handed over to them.
They further stated that on enquiry as to how the dummy papers did not contain the "two leaves" symbol allotted to the 1st respondent the appellant stated that they were Government papers and the symbol allotted to the 1st respondent had been cancelled.
The High Court has held, and rightly so, that the alleged statement of the appellant that they were Government papers cannot be admitted in evidence on the ground that it was not so pleaded in the election petition.
We cannot also help feeling that in deposing that the appellant told them that they were Government papers and the symbol allotted to the 1st respondent had been cancelled P.Ws.8 and 4 are embellishing the story to make their evidence stronger.
In the election petition itself it is stated that at Bollonggiri and Daggal Bazar the appellant had stated that the "two leaves" election symbol allotted to the 1st respondent was withdrawn by the Government and he was nowhere whereas in the evidence given there is no mention about the appellant having said that the petitioner was nowhere.
While the election petition does not state that the dummy ballot papers were Government papers P.Ws. 4 and 8 say that the appellant stated that they were Government papers.
We therefore conclude that it would be safe and reasonable to hold that the evidence of P.Ws. 8 and 4 cannot be accepted in so far as they add any 803 thing more than that the appellant distributed the dummy ballot papers.
We shall Presently mention why we think that the dummy ballot papers like Ext.
4 should have been distributed by the appellant.
On the 26th of February the 1st respondent filed a complaint Ext.
3 before the Returning Officer and along with the complaint he filed a, dummy ballot paper Ext.
4 could not have become available to him unless it had been distributed by the appellant.
We are not perpared to accept the contention on behalf of the appellant that they, should have been pilfered because no evidence to that effect was given.
Nor are we able to accept his evidence and that of Constant Marak R.W. 8 as to how the mistake in the dummy ballot paper was found.
It sounds too artificial.
Admittedly the appellant had given a lift to P.Ws ' 8 and 4 on his journey from Tura to Bollonggiri and as admittedly he had passed through villages included in his constituency during the course of that journey it is quite likely that he distributed those dummy ballot papers.
Furthermore, according to the appellant he had distributed another pamphlet Ext.
E after coming to realise that the dummy ballot paper was wrong.
If dummy ballot papers were not distributed at all there was no need to distribute pamphlets like Ext.
These pamphlets were printed on 29th February and taken delivery of on the 1st of March.
The 1st respondent 's case that these pamphlets were not distributed does not seem to be true because one of his witnesses, P.W.8, admits having seen such a pamphlet and another witness, P.W. 5, makes an half hearted admission of the same fact.
We, are, therefore, satisfied that pamphlets like Ext.
E were in fact distributed by the appellant.
That could have been done only to counteract the effect of the distribution of the dummy ballot papers.
It is not the appellant 's case that he distributed the dummy ballot papers at all.
If so there was no need to distribute pamphlets like Ext.
E. Quite.
possibly realising rather a little late the damage likely to be done to his case the appellant tried to repair the dam age by the distribution of pamphlets like Ext.
As regards the distribution of dummy ballot papers in Duggal ' Bazar the evidence was that of P.Ws. 7, 9 and 10 who also produced the dummy ballot papers marked as Exts.
41, 42 and 43.
According to them the appellant distributed these dummy ballot papers and said that the symbol of "two leaves" bad been cancelled by the Government.
This is said to have taken place on the 5th of March and on the 6th of March the 1st respondent filed a criminal complaint against the appellant and A. M. Sangma, R.W. 2, complaining about the publication of the dummy ballot papers.
The importance of the publication on the 5th March is because if the distribution of the dummy ballot papers had been only on the 25th of February it might possibly be argued that he 'had not till then seen them and as soon as be realised the mistake he tried to undo the harm by distributing pamphlets like exhibit E.
As Ext.
E is said to have been distributed from It March onwards, the case of the bona fide mistake in the printing of the dummy ballet papers would not be sustained if their distribution on the 5th of March at Daggal Bazar is proved.
Just an in the case of evidence of P Ws. 8 and 4, we also think that the evidence of P.Ws. 7. 9 and 10 is exaggerated in so far as they say that appellant told them that the 804 1st respondent 's symbol had been cancelled by the Government.
The learned Judge of the High Court holds that the distribution of the dummy ballot papers in Daggal Bazar is proved because the appellant is unable to explain how P.Ws. 7, 9 and 10 were able to get dummy ballot papers like Exts. 41, 42 and 43.
It cannot be urged that those ballot papers were those obtained when the appellant distributed them in Bollonggiri because the appellant 's case is that he had not distributed them at all.
The appellant produced 497 ballot papers and stated that 3 ballot papers were missing and he was producing the ,other 497.
But as six ballot papers have been produced before the Court and marked as Exts.
4, 35, 41 to 43 and Ext.
P.W. 6/1 it is not possible to accept this explanation.
The question reduces itself to this : Were these 497 ballot papers produced by the appellant got printed later, as was the suggestion put to him, or did the 1st respondent get dummy ballot papers printed and produce them as the six exhibits marked by the Court ? Such a suggestion %,as not put to him.
We have already held that we cannot accept the explanation sought to be put forward on behalf of the appellant before the High ,Court that they must have been pilfered.
It is, therefore, reason able to conclude that the appellant should have distributed at least the six ,;dummy ballot papers exhibited before the Court, if not more in which case the logical conclusion would be that the 497 dummy ballot papers produced before the Court were merely an attempt to cover up what the appellant had done and to make it appear that no dummy ballot papers were distributed.
In view of the fact that the 1st respondent bad filed a complaint on the 26th of February before the Returning Officer and a criminal complaint on the 6th of March we would, in agreement with the high Court, hold that the distribution of the dummy ballot papers at Bollonggiri as well as Daggal Bazar is proved.
If the distribution of the dummy ballot papers in Daggal Bazar is proved then there can be no question of the printing of the dummy ballot papers with the wrong symbol being due to a mistake but must be deliberate.
The appellant might have distributed pamphlets like Ext.
E realising at a later stage the mistake he had committed in distributing the wrong dummy ballot papers but that cannot help him.
In a constituency admittedly consisting of more than 80 per cent illiterate electors the consequences of distribution of dummy ballot papers with wrong symbols can well be imagined.
Voters who went to the polling stations would have been confused even if they did not go there with the intention of voting for the 1st respondent and people who went there with the intention of voting for the 1st respondent might well have cast their vote either to the appellant or to the other candidate finding that the 1st respondent 's symbol was not there or they might have 805 even gone back home without voting.
In a case where a corrupt practice is alleged and proved it is not necessary further to show the exact number of votes which the 1st respondent lost or the appellant gained.
The corrupt practice itself is enough to invalidate the election.
There is a small matter to which reference may be made at this stage.
The allegation in the election petition also was that the 1st respondent 's name had been wrongly spelled in the dummy ballot papers distributed by the appellant.
As admittedly the electorate is, 80 per cent illiterate this is not likely to have any effect and no importance can be attached to it.
In the result we uphold the decision of the High Court and dismiss this appeal, the costs of the 1st respondent to be, paid by them appellant.
V. P. section Appeal dismissed.
| The appellant was appointed on 20 May, 1965, on two years ' probation.
On 1 July, 1967 there was an order extending the period of probation by one year.
On May 20, 1968, there was an order terminating the services of the petitioner.
On July 20, 1968 there was an order revoking the order of termination and extending the period of probation for six months from 20th May, 1968.
The order of termination was on Jan. 30, 1969.
This order recited that, having considered him unfit for appointment to the State Police Service the services of the appellant are dispensed with on the expiry of his extended period of probation.
Two contentions were raised by the appellant in the High Court.
First, the order of termination was passed on Jan. 30, 1969, when the petitioner.
by reason of expiry of 3 years stood confirmed on 19/20 November, 1968 and Second, the order of termination was one of punishment and the appellant should have been given an opportunity to show cause against the order of termination under Rule 9 of the Punjab Civil Service (Punishment and Appeal) Rules, 1952.
These contentions were rejected by the High Court.
Hence the appeal to this Court by Special Leave.
Dismissing the appeal, HELD: The object of extending the period of probation is to find out whether the appellant was a fit person.
The appellant could not be confirmed, till the period of probation expired.
It cannot, therefore, be held that the appellant stood confirmed on 19/20 November, 1968 before the period of probaition expired in January, 1969.
[776A B] (2) Termination on account of unsatisfactory record will attract rule 9 of the Punishment Rules.
Fitness was a matter to be considered at the time of confirmation.
The order terminating the services is unfitness for appointment and not on the ground of any turpitude to attract Rule 9 of the Punishment Rules, 1952.
To hold that the words "unfit to be appointed" mentioned in the order of termination, are a stigma, would deprive the authorities to judge fitness 'for work or suitability to a post at the time of confirmation.
Termination of services on account of inadequacy for the job or for any tompramental or other defect not involving moral turpitude is not a stigma which can be called discharge by punishment.
Fitness for the job is one.
of the most important reasons for confirmation.
The facts and circumstances do not show that there was any stigma attached to the order of termination and therefore, Rule 9 of the Punjab Civil Service (Punishment & Appeal) Rules, 1952 is not attracted in the present case.
[7760 777B]
|
Civil Appeal Nos.
2072 and 4091 92 of 1985.
From the Judgment and order dated 9.4.1985 of the Allahabad High Court in C.M.W.P Nos 10301 and 2263 of 1983.
with Civil Appeal Nos. 2628, 2696 of 1985 and Special Leave Petition No. 9542 of 1985 From the Judgment and order dated 30.4.1985 of the Allahabad High Court in C.M.W.P Nos 17669, 11027 and 10675 of 1983 S.N. Kacker, R.B Mehrotra, Rajesh, A D. Sanger, Pramod Dayal, Mrs. section Dixit and U.S. Prasad for the Appellants 6 G.L. Sanghi, Shanti Bhushan, Madan Lokur, Prasant Bhushan and A.K. Srivastava for the Respondents.
The Judgment of the Court was delivered by PATHAEK, J.
The principal question in these appeals is whether, in view of the enactment of the U.P. Secondary Education Services Commission and Selection Boards Act, 1982 and the Rules framed thereunder, the provisions contained in section 16 G(2)(c) of the U.P. Intermediate Education Act, 1921 and Regulations 55 to 62 in Chapter III of the Regulations framed under that Act in respect of the transfer of a Principal from one Intermediate College to another continue to be operative and effective.
The Intermediate Education Act, 1921 (shortly referred to as 'the Education Act ') and the Regulations framed thereunder provide inter alia for the conditions of service of Heads and of the teachers of such educational institutions.
The appointment of the Heads and of teachers of educational institutions in the State continued to be governed by the Education Act for several years, but with the passage of time it came to be felt that the selections of teachers under the provisions of that Act and the Regulations were not always free and fair and moreover the field of selection was greatly restricted.
As this adversely affected the availability of suitable teachers and the standards of education the Government of Uttar Pradesh promulgated the U.P. Secondary Education Services Commission and Selection Boards ordinance 1981 on July 10, 1981 with a view to establishing a Secondary Education Services Commission and six or more Secondary Education Selection Boards for the selection of teachers in institutions recognised under the Education Act.
The ordinance was replaced subsequently by the enactment of the U.P. Secondary Education Services Commission and Selection Boards Act, 1982 (conveniently referred to as 'the Services Commission Act ').
Thereafter the State Government framed Rules for carrying out the purposes of the Act.
It was some time before the Services Commission and the Selection Boards could be constituted and therefore a number of Removal of Difficulties orders were made by the State Government pursuant to power conferred under the aforesaid ordinance and thereafter under the Commission Act.
We propose to take the appeal filed by Om Prakash Rana against Swarup Singh Tomar (Civil Appeal No. 2072 of 1985) as representative of the factual context in which the appeals arise.
The Veer Smarak 7 Intermediate College is an educational institution in Baraut in the A district of Meerut.
It is an institution recognised under the provisions of the Intermediate Education Act, 1921.
On June 30, 1982 the post of Principal of the College fell vacant on the retirement of the outgoing Principal, Jai Singh.
The Committee of Management resolved that Bhopal Singh, the then Principal of the Adarsh Vedic Intermediate College, situated in the same district, should be invited to join the post of Principal in the College.
It was intended that the vacancy should be filled in accordance with the provisions of the Education Act and the Regulations made thereunder which permitted the transfer of a Principal from one institution to another.
As the transfer could be affected only with the approval of the District Inspector of Schools, an application was made to the District Inspector of Schools.
He refused to grant approval.
On July 13, 1982 the District Inspector of Schools directed the Committee of Management to give charge of the post of Principal to the respondent Swarup Singh Tomar as officiating Principal.
Three days later, the District Inspector of Schools superseded that order and directed that the respondent Swarup Singh Tomar should be appointed as ad hoc Principal under the Removal of Difficulties order issued under the Services Commission Act.
The Committee of Management of the College filed a writ petition in the Allahabad High Court against the order of the District Inspector of Schools, and during its pendency the High Court made an interim order in which it was recognised that Swarup Singh Tomar was functioning already as ad hoc Principal of the institution.
About this time, the appellant Om Prakash Rana, who was Principal of the B.P. Intermediate College at Bijwara in the district of Meerut, requested the Committee of Management of his College to relieve him in order to enable his transfer as Principal to the Veer Smarak Intermediate College.
On November 22, 1982 the Committee of Management passed a resolution accordingly.
On December 3, 1982 the Committee of Management of the Veer Smarak Intermediate College resolved on accepting the appellant as Principal of the College on transfer from the other institution.
On February 19, 1983, the District Inspector of Schools accorded his approval to the transfer.
Tomar now filed a writ petition in the Allahabad High Court.
He obtained an interim order restraining the Committee of Management from permitting Rana to fill the post of Principal of the College, but the interim order was vacated on March 9, 1983 and Rana has been working as Principal of the College ever since.
On April 9, 1985 the High Court allowed the writ petition and quashed the order dated February 19, 1983 under which the District Inspector of Schools had 8 accorded his approval to the transfer of Rana.
In allowing the writ petition the High Court followed the judgment of a Full Bench of the Court pronounced in Raghunandan Prasad Bhatnagar vs Administrator, Gandhi Vidyalaya Intermediate College, Khekra, (Civil Misc Writ Petition No. 10301 of 1983).
That was a case where the High Court re examined the correctness of the views expressed by two Division Benches of the High Court in Ratan Pal Singh vs Deputy Director of Education, (1983 U.P. Local Bodies and Educational Cases 34) and the Committee of Management, National Intermediate College, Adali Indara District Azamgarh vs The District Inspector of Schools Azamgarh, (1983 U.P. Local Bodies and Educational Cases 198).
The three learned Judges who heard the case were unable to come to a unanimous opinion, and by majority the Full Bench held that it was not permissible for the Committee of Management of an Intermediate College to fill the post of Principal of the College by the transfer of a Principal from one Intermediate College to another after the commencement of the Services Commission Act.
To appreciate the scope and range of the contentions raised before us by the parties it is appropriate to set forth at the outset the relevant provisions of the two statutes and the pertinent Regulations.
Section 16 G of the Education Act provides: "16 G Conditions of service of Head of Institutions, teachers and other employees (1) Every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations and any agreement between the management and such employee in so far as it is inconsistent with the provisions of this Act or with the Regulations shall be void.
(2) Without prejudice to the generality of the powers conferred by sub section (1), the Regulations may provide for (a) the period of probation, the conditions of confirmation and the procedure and conditions for promotion and punishment, including suspension pending or in contemplation of inquiry or during the pendency of investigation, inquiry or trial in any criminal case for an offence involving moral turpitude and the emoluments 9 for the period of suspension and termination of service with notice.
(b) the scales of pay and payment of salaries, (c) transfer of service from one recognised institution to another, (d) grant of leave and Provident Fund and other benefits, and (e)maintenance of record of work and service" The Regulations SS to 62 detail the procedure to be followed when a permanent employee of an institution desires his transfer to another institution.
An application for transfer is made to the Inspector of Schools.
All applications for transfer are entered in a register As soon as a substantive vacancy or a temporary vacancy likely to be made permanent and which is to be filled by direct recruitment is advertised, the Manager of the institution has to send a copy of the advertisement to the Inspector.
The Inspector will arrange with the Management to see whether the vacancy can be filled suitably by one of the applicants for transfer.
When the vacancy is not filled by transfer, the Management may proceed to fill it by direct recruitment.
To enable the transfer to take place it is necessary that the Management of the institution where the application is serving should be willing to release him and that the Management of the institution to which the applicant seeks transfer is willing to accept him.
Apparently the appellant Rana relied on these provisions of the Education Act and the Regulations to obtain a transfer as Principal from the B.P. Intermediate College, Bijwara to the Veer Smarak Intermediate College, Baraut.
In anticipation of the promulgation of the Services Commission ordinance the U.P Government issued a radiogram to all District Inspectors in the State directing them to stop all fresh selections and appointments of Principals, Head Masters and teachers including recruitment by promotion in all non Government aided Secondary Schools, except minority institutions, pending further orders .
This was followed on July 19, 1981 by the Services Commission ordinance.
Clause 16 of the ordinance provided that the appointment of a teacher (the expression 'teacher ' being defined to include a Principal) could be made by the Management only on the recommendation of the Commission and any appointment made in contravention of the clause would be void.
Thereafter, the Services Commission Act was enacted 10 Section 3 provides for establishing a Commission to be called the "Uttar Pradesh Secondary Education Services Commission".
It is to be a body corporate and entitled to exercise power throughout the State.
Section 10 provides: "10(1) For the purposes of making appointment of a teacher specified in the Schedule, the management shall notify the vancancy to the Commission in such manner and through such officer or authority as may be prescribed.
(2) The procedure of selection of candidates for appointment to the posts of such teachers shall be such as may be Prescribed; Provided that the Commission shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under sub section (1).
" Section 11 details the procedure to be followed by the Commission after the notification of a vacancy under section 10 for the purpose of holding interviews of the candidates and preparing a panel of those found most suitable for appointment.
The names on the panel are to be forwarded to the Management of the institutions in accordance with the prescribed procedure and the Management is to appoint a candidate accordingly.
Section 16 declares: "16(1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the Regulations made thereunder but subject to the provisions of sections 18 and 33 (a) every appointment of a teacher specified in the Schedule shall, on or after July 10, 1981, be made by the management only on the recommendation of the Commission (b) every appointment of a teacher (other than a teacher specified in the Schedule) shall, on or after July 10, 1981 be made by the management only on the recommendation of the Board: Provided that in respect of retrenched employees, the provisions of section 16 EE of the Intermediate Education Act, 1921 shall apply with the modification that in sub section(2) of the afore 11 said section, for the words 'six months ' the words 'two years ' shall be deemed to have been substituted.
(2) Every appointment of a teacher, in contravention of the provisions of sub section (1), shall be void.
" Where a person is entitled to appointment as a teacher in any institution but is not so appointed by the Management, he is given the right to apply to the Director of Education, Uttar Pradesh for a direction to the Management to appoint him forthwith and to pay him salary from the date specified in the order.
Section 22 provides for the imposition of a penalty on any person appointing a teacher in contravention of the provisions of the Act.
Such contravention constitutes an offence punishable with imprisonment which may extend to three years or with fine up to Rs. 5,000 or with both.
Section 32, of which much will be said hereafter, provides: "32.
The provisions of the Intermediate Education Act, 1921 and the Regulations made thereunder in so far as they are not inconsistent with the provisions of this Act or the rules or regulations made hereunder shall continue to be in force for the purposes of selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher.
" Section 33 enables the State Government to pass orders for a period of two years from the date of commencement of the Act for the purpose of removing difficulties.
The central question is whether the enactment of the Services Commission Act results in the repeal of the provisions of section 16 G(2)(c) of the Education Act and the Regulations made thereunder.
If that is so, no transfer to the office of Principal in Intermediate Colleges can be made except if at all, in accordance with the provisions of the Services Commission Act.
In this connection, one point which arises is whether the transfer of a Principal from one College to another constitutes an appointment to the latter.
It is the case of the appellants that the power relating to appointments conferred on the Commission under the Services Commission Act does not in any way curtail the provisions regarding transfer set forth in the Education Act and its Regulations.
It is urged that the right to apply for transfer is a condition of service of an employee, and neither expressly nor by necessary implication can it 12 be said that the Services Commission Act has abrogated that right.
It is a facility provided to every employee and, it is said, there must be clear language before that right can be taken away.
It is contended that it is perfectly possible to read the Education Act and its Regulations side by side with the Services Commission Act and infer therefrom that the power of transfer continues to co exist under the former with the power relating to appointments conferred on the Commission under the latter.
There is no inconsistency between the two powers, it is submitted, and that is apparent when section 32 of the Services Commission Act deals with the effect of the inconsistency between the provisions of the Education Act, and the Regulations made thereunder, and the provisions of the Services Commission Act, and its rules and Regulations, in regard to the "selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher".
This submission is based on the premises that the power of transfer is not encompassed within the power of appointment.
So it is said that section 16 of the Services Commission Act which provides that the appointment of a Principal can be made by the Management only on the recommendation of the Commission does not bar the transfer of a Principal from one College to another.
As is clear by now the fundamental basis of the contention that the power of transfer under the Education Act and its Regulations continues in force even after the enactment of the Services Commission Act rests on the assumption that the power of appointment does not include the power of transfer.
In our opinion, the assumption is unsustainable.
The scheme under the Education Act envisages the appointment of a Principal in relation to a specific College.
The appointment is in relation to that College and to no other.
Moreover, different Colleges may be owned by different bodies or organisations, so that each Principal serves a different employer.
Therefore, on filling the office of a Principal to a College, a new contract of employment with a particular employer comes into existence.
There is no State level service to which Principals are appointed.
Had that been so, it would have been possible to say that when a Principal is transferred from one College to another no fresh appointment is involved.
But when a Principal is appointed in respect of a particular College and is thereafter transferred as a Principal of another College it can hardly be doubted that a new appointment comes into existence.
Although the process of transfer may be governed by considerations and move through a machinery, different from the considerations governing the appointment of a person ab initio as Principal, the nature of the trans 13 action is the same, namely, that of appointment, and that is so whether the appointment be through direct recruitment, through promotion from the teaching staff of the same institution or by transfer from another institution.
It is pointed out that when section 10 of the Services Commission Act requires that for the purposes of the making of an appointment of a teacher the Management must notify the vacancy to the Commission, it does not speak of "every vacancy", and designedly leaves the possibility open of some vacancies being filled by transfer.
This submission is also without substance.
A survey of the provisions of the Services Commission Act makes it abundantly clear that the entire matter of selecting teachers for recognised institutions is intended to be governed by the Services Commission Act.
As the Preamble of the Act itself suggests, that is the whole purpose of establishing the Services Commission.
Section 3 envisages the Commission as a body corporate, an entity of continuing existence, manned by persons of eminence and distinction from the judicial services and the educational services and selected academicians with a superior level of teaching experience, and armed with a carefully delineated power to select teachers, through a detailed procedure intended to select the best.
No wonder than that section 16(1) mandates that "every appointment" of a Principal can be made by the Management "only on the recommendation of the Commission".
Section 16(2) goes further.
It declares that every appointment made in contravention of section 16(1) shall be void.
It is only in exceptional cases, where the Commission has failed to recommend the name of a suitable candidate for appointment within one year from the date of notification of the vacancy, or the post has actually remained vacant for more than two months then, under section 18(1), the Management may appoint, by direct recruitment or promotion, a teacher on a purely ad hoc basis from amongst the persons possessing qualifications prescribed under the Education Act or the Regulations made thereunder.
Section 22 demonstrates how absolute is the ban on appointing a teacher through a procedure outside the provisions of the Services Commission Act, for the section provides that any person who appoints a teacher in contravention of the provisions of that Act shall, on conviction, be punished with imprisonment for a term which may extend to three years or with fine which may extend to Rs 5000 or with both.
Any doubt remaining is removed completely by section 32 of the Services Commission Act which permits the provisions of the Education Act and its Regulations to continue in force in so far only as they are not inconsistent with the provisions of the Services Commission 14 Act, its Rules and its Regulations in the matter of the selection and appointment, among other things, of a teacher.
We are firmly of opinion that no duality in the source of power is contemplated in the matter of filling the office of Principal of a College.
It is not possible to contemplate that transfers can be affected with the approval of the District Inspectors of Schools under the Education Act and its Regulations, while appointments (other than by transfer) can be made upon the recommendation of the Commission.
The control over all appointments is exercised by a single source of power, namely, the Commission under the Services Commission Act.
It is no longer possible to invoke section 16 G(2)(c) of the Education Act and its Regulations and transfer a Principal from one institution to another.
The context in which those provisions operate, the authority conferred for that purpose and the conditions subject to which it can be exercised stand completely superseded by the corresponding provisions of the Services Commission Act, its Rules and Regulations.
That is amply demonstrated by the declaration in section 16 of the Services Commission Act which mandates that the appointment of a Principal shall be made only on the recommendation of the Commission "notwithstand ing anything to the contrary contained in the Intermediate Education Act, 1921 or the Regulations made thereunder.
" The scheme set forth in the Services Commission Act enacts a complete code in the matter of selection of teachers, and resort is no longer permissible to the provisions of the Education Act and its Regulations for that purpose.
Where the Services Commission Act intended that any provision of the Education Act pertaining to the appointment of a teacher should continue in force, it expressly provided for such saving.
For example, the proviso to section 16(1) of the Services Commission Act enacts that the provisions of section 16 EE of the Education Act which provide for the absorption of retrenched employees against permanent vacancies shall apply with certain modifications.
A submission on behalf of the appellant is that the power to transfer the service of a teacher from one institution to another under section 16 G(2)(c) of the Education Act is a condition of service and should not be identified with the power of appointment.
We have already explained that in its essential nature the transfer of a teacher from one institution to another implies the cessation of his appointment in the former institution and his appointment to the latter.
It will also be noticed that the selection of teachers of the categories mentioned in the Schedule to the Services Commission Act has been considered by 15 the State Legislature of such manifest importance that a high powered A Commission has been envisaged for discharging that function.
It is a Commission consisting of persons holding positions of eminence in the Judicial Services or in the State Education Services or with teaching experience as University Professors and College Principals.
It is intended that whenever a vacancy arises in the post of a teacher the Commission must be notified of it.
In the selection of a teacher the Commission has been charged with the responsibility of inviting talented persons and selecting the best from among them.
The selection has to be made in the context of the particular needs and requirements of the College.
It is a responsibility of grave magnitude, the appointment of the head of an educational institution, and therefore most appropriately entrusted to the vision, wisdom and experience of a high powered body, the Commission.
To contemplate that a vacancy can be filled by transfer, even subject to the approval of the District Inspector of Schools, is to admit the possibility of an appointment which does not measure up to the high standards and norms which the Commission can, having regard to its composition and statutes, be expected to apply.
The Commission, as we have mentioned earlier, is envisaged as a corporate body constituted for the entire State, and in the selection of teachers as Principals and Lecturers of Intermediate Colleges and as Headmasters of High Schools and Trained Graduate Grade teachers of Higher Secondary Schools (the categories of teachers detailed in the Schedule), it can also be expected to bear in mind the needs and standards of education designed for the entire State.
The object of the Services Commission Act would be defeated if vacancies to posts of such responsibility and obvious importance in the field of education can be filled by bypassing the Commission and making appointments by transfer under section 16 G(2)(c) of the Education Act.
As the Services Commission Act stands today, no appointment by such transfer can be envisaged to those vacancies which fall within the responsibilities of the Commission.
Our attention has been invited to the circumstance that even after the coming into force of the Services Commission Act the State Government has made amendments to the Regulations under the Education Act relating to the transfer of service under section 16 G(2)(c) of the Education Act.
It is urged that the making of such amendments indicates the belief in the State Government that section 16 G(2)(c) of the Education Act continues to be operative.
It is permissible to say, we think, that the making of those amendments cannot alter the true construction of the scope of the enactments under consideration.
It 16 may have been another thing altogether if an amendment had been made to section 16 G(2)(c) of the Education Act itself, from which an inference may have been possible that the State Legistlature, when amending that provision on the basis that it continues in operation, has given clear indication thereby that it was never intended that the provisions of the Services Commission Act should supersede section 16 G(2)(c) of the Education Act.
In view of the aforesaid considerations, we hold that upon the constitution of a Commission under the Services Commission Act it is no longer possible for a vacancy in the post of Principal, Headmaster or teacher of the categories mentioned in the Schedule to the Services Commission Act to be filled by the process of transfer under section 16G(2)(c) of the Education Act and its Regulations.
On this point we find ourselves in agreement with the majority opinion of the Full Bench of the High Court in Raghunandan Prasad Bhatnagar (supra) and are unable to agree with what has been said by the Division Benches of that Court in Ratan Pal Singh (supra) and The Committee of Management, National Intermediate College, Adali Indara District Azamgarh (supra).
As the mandate imposed by section 16(1)(a) of the Services Commission Act that the appointment of a Principal of an Intermediate College shall, on or after July 10, 1981 be made only on the recommendation of the Commission, and inasmuch as the appointment by transfer of the appellant as Principal of the Veer Smarak Intermediate College took place after that date, the appointment of the appellant must be regarded as void.
The majority in Raghunandan Prasad Bhatnagar (supra) has ob served that section 16 G(2)(c) of the Education Act should be limited to cases of mutal transfer of services between teachers serving in different institutions.
We find it difficult to accept the accuracy of that observation, having regard to the view taken by us that section 16 G(2)(c) of the Education Act cannot be pressed into service at all now in regard to vacancies intended to be filled on the recommendation of the Commission under the Services Commission Act An attempt was made by the appellant to show that the respondent Tomar is not entitled to continue as Principal of the Veer Smarak Intermediate College and our attention was invited to the provisions of successive U.P. Secondary Education Services Commission (Removal 17 of Difficulties) orders.
Having regard to the finding that the appellant A can have no claim to the office of Principal of that College on the basis of the transfer affected in his favour, we do not think it is open to him to challenge the continuation of the respondent Tomar in that office.
Civil Appeal No. 2072 of 1985 fails and is liable to be dismissed.
Civil Appeal Nos. 4091 4092 of 1985 have been filed by the District Inspector of Schools, Meerut in support of the claim of Om Prakash Rana and as they raise the same questions as Civil Appeal No. 2072 of 1985 filed by Om Prakash Rana, learned counsel for the District Inspector of Schools adopts the submissions made by learned counsel for Om Prakash Rana.
Civil Appeal Nos.
2628 and 2696 of 1985 arise out of substantially similar facts, and those appeals will also be governed by the view taken in the appeal preferred by Om Prakash Rana.
A Special Leave Petition (S.L.P.(C) No. 9542 of 1985) has been filed by Shashi Pal Singh praying for special leave to appeal against the judgment and order of the Allahabad High Court in which the High Court, following its view in Raghunandan Prasad Bhatnagar (supra) has quashed the appointment of the transferee Principal Upon the considerations which have found favour with us, the aforementioned appeals and the special leave petition must fail.
In the result, all these appeals and the special leave petition are dismissed.
There is no order as to costs.
P.S.S. Appeals and Petition dismissed.
| The appellant is carrying on the business of bulk supply of milk and milk products for the last twenty years.
He has a plant for pasteurization at Pune.
On July 16, 1985 the officer in charge of the Military Farms respondent No. 2, issued tender notice for the supply of pure fresh buffalo and cow milk.
The appellant being eligible and already on the approved list of the respondent authority, submitted a tender offering fresh buffalo milk of the specified fat content and gravity giving a rate of R.S. 421 per 100 litres.
The General Manager, Government Milk Scheme, Pune respondent No. 4, also submitted a tender for the supply of pasteurized milk, an item not contemplated by the tender notice, at Rs.400 per 100 litres.
Tenders were opened on August 23, 1985 and the appellant was found the lowest bidder.
The Military officer concerned submitted a report to the higher authority stating that the appellant was not only the lowest 'bidder but also that the purchase of milk from him would be profitable, while the purchase of milk from respondent No. 4 would result in serious loss to the extent of rupees ten lakhs or so.
But all the same, the respondent authority accepted the higher bid of respondent No. 4, in preference to the lower bid of the appellant contrary to the terms of the notice inviting tender.
Feeling aggrieved by the rejection of his tender, the appellant challenged the order by filing a writ petition in the High Court which was dismissed in limine.
In this appeal by special leave on behalf of the appellant it was 64 contended that even in the matter of contracts, the Government has to act fairly and justly and the failure of the Government to do so gives a right to the citizen to approach the court for justice, that the authority concerned in rejecting his tender had acted contrary to the principles of law, unfairly, arbitrarily and discriminately, that the tender submitted by respondent No. 4 was not in consonance with the tender notice and it should have been ignored, and that if the authority wished to alter the conditions of the tender notice it was obligatory and mandatory for it to call him for negotiation.
It was further contended that the 10 per cent price preference given to respondent No. 4 contrary to the terms of the tender notice was illegal and discriminatory.
On behalf of the respondents it was contended that respondent No. 4 being the Government agency was rightly awarded the contract as per the policy of the Government of India laid down in notification dated August 13, 1385.
Allowing the appeal, the Court, ^ HELD: 1.
The Government may enter into a contract with any person but in so doing the State or its instrumentalities cannot act arbitrarily.
It is open to the State to adopt a policy different from the one in question, but once the authority or the State Government chooses to invite tenders then it must abide by the result of the tender.
[75 C D; 77 D E] 2.
The High Court was not justified in dismissing the writ petition in limine by saying that the question relates to the contractual obligation and the policy decision cannot be termed as unfair or arbitrary.
[77 E] There was no question of any policy decision in the instant case.
The notification dated August 13, 1985 laying down the policy came in after July 16, 1985 when respondent No. 2 issued tender notice.
The instrumentalities of the State having invited tenders for the supply of fresh buffalo and cow milk, these were to be adjudged on their intrinsic merits in accordance with the terms and conditions of the tender notice.
The contract for the supply of milk was to be given to the lowest bidder under the terms of the tender notice and the appellant being the lowest bidder, it should have been granted to him.
The authority acted capriciously in accepting a bid which was much higher and to the detriment of the State.
[75 B D; 77 D F] 3.
Where the tender form submitted by any party is not in con 65 formity with the conditions of the tender notice the same should not be A accepted.
So also, where the original terms of the tender notice are changed the parties should be given an opportunity to submit their tenders in conformity with the changed terms.
[72 C E] 4.
The authority acted arbitrarily in allowing 10 per cent price preference to respondent No. 4.
The terms and conditions of the tender had been incorporated in the tender notice itself and that did not indicate any such price preference to government undertakings.
The only concession available to Central/State Government or to the purely government concerns was under para 13 of the notice, that is, that they need not pay tender form fee and earnest money.
No other concession or benefit was contemplated under the terms of the tender notice.
[73 A C ] Ramana Dayaram Shetty vs The International Airport Authority of India & Ors., ; ; V. Punnan Thomas vs State of Kerala, AIR 1969 Kerala 81; C.K. Achuthan vs State of Kerala [1359] Suppl.
1 SCR 787; Viklad Coal Merchants, Patiala etc.
vs Union of India & Ors.
AIR 1984 SC 95; and Madhya Pradesh Ration Vikreta Sangh Society SCR 750, referred to.
|
mpt Petition No. 159 of 1992.
IN Special Leave Petition (C) No. 12709 of 1991.
From the Judgment and Order dated 26.4.1991 of the Calcutta High Court in Appeal No. 232 of 1990.
M.L. Verma, R. Mukhejee, J. Gupta and M.L. Chibber for the Petitioners.
Ranjan Dutta, Mrs. N. Dutta, Mrs. Mridula Ray and M.N. Shroff for the Respondents.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.
In a suit for specific performance certain interlocutory orders were passed by a Single Judge of the Calcutta High Court.
On appeal a Division Bench of the said Court modified the said orders.
A number of special leave petitions were filed in this Court against the orders of the Division Bench.
Though the petitioners in these special leave petitions are different, the contesting respondents in all these cases are common, namely Russel Estate Corporation and its managing partner Sri Hari Narayan Bhan.
For the purpose of this petition, it is enough to mention that each of the petitioners in these S.L.Ps. is claiming to be entitled to allotment of one or more of the flats being constructed by the respondents at Calcutta.
Their complaint has been that ignoring the agreements in their favour, the 753 respondents have been allotting the constructed flats in favour of third parties thereby seeking to defeat their rights.
On 1.8.1991 a Bench of this Court comprising section Ranganathan, M. Fathima Beevi and N.D. Ojha, JJ. passed the following order in I.A. No.2 of 1991 after hearing the respondents.
"Counsel accepts notice.
in the meantime, till this Special Leave Petition is disposed of, respondents 1 & 2 should not make any further allotment of any other flats in the building in dispute, with effect from today.
Counsel for the petitioner contends that the allotment of the flat, originally allotted to him, to some other person violates an oral order of a Division Bench of the High Court.
It will be open to the petitioner to move the High Court for appropriate relief in this regard if so advised." This Contempt Petition is filed complaining that the respondents have allotted certain flats in favour of third parties in violation of the said order.
So far as the petitioners in this Contempt Petition (Major) Genl.
B.M. Bhattacharjee and Smt.
section Laha) are concerned, they claim to be interested in the flats on the 8th floor of the said building.
At any rate the complaint in this Contempt Petition pertains to the said two flats.
The petitioners say that the said flats have been allotted to the third parties in the month of January, 1992.
They rely upon the report of a group of investigators (National Bureau of Investigation) in support of the said plea.
Notice was issued to the respondents.
In their counter (filed by Shri Hari Narayan Bhan) it is stated that the two floors on the 8th floor (described as east and west flats) were allotted on 26th April, 1991 itself i.e., long prior to the order of this Court dated 1.8.1991.
It is denied that the allotment of said flats took place in the month of January, 1992.
The correctness of the Report of the National Bureau of Investigation is disputed.
It is, however, conceded that the possession of the said flats was handed over to the said third parties on 17th August, 1991 which is admittedly a date subsequent to the date on which this Court passed the aforesaid restraint order.
It is also not disputed by them that the registered sale deeds in respect of said flats in favour of the said third parties were 754 also executed in March, 1992.
The report of the Receiver (Smt.
Pratibha Bonnerjea, a retired Judge of the Calcutta High Court who was appointed as such by an order of this Court dated 7.1.1992) also supports the petitioners ' allegations.
The relevant portion of the Report reads as follows: "Present condition of these two flats in the floor.
The western apartment in the 8th floor is occupied by one Mr. & Mrs.
Kamal Thavrani, Ms. Thavrani said that they are in occupation of the flat from December, 1991.
Mr. K.K. Thavrani said that he had taken both the eastern and western apartments in the 8th floor.
He produced a copy of the agreement executed on 26.4.91 on a stamp paper purchased on 26.4.91 by M/s. Russel Estate Corporation.
The agreement relates to both the flats on the 8th floor for a total consideration of Rs. 13,40,000.
It is stated that the occupiers have taken possession in December, 1991.
Mr. Thavrani submits that the conveyance have been registered in March, 1992 but he is unable to produce the registered conveyance as the same is still lying with the Registrar.
We found eastern flat was not complete.
Wooden work was going on.
Photos Nos.
3 to 5 are attached to this effect.
" At the bearing of this Contempt Petition the respondents ' counsel took the stand that the delivery of possession on 17.8.1991 and the execution of the registered sale deed in March, 1992 do not constitute violation of the Order dated 1.8.1991.
His submission is that this Court merely restrained the allotment of flats.
Allotment, according to the learned Counsel, means entering into the agreement of sale.
Inasmuch as the agreement of sale with respect to the said two.
flats on the 8th floor was entered into long prior to the said Order of this Court, it is submitted, there is no disobedience to the order of this Court.
it is submitted that delivery of possession and the registration of the sale deed(s) is in pursuance of the aforesaid agreement of sale and not in pursuance of any agreement of We entered into on or after 1.8.1991.
The counsel further submitted that even on the date when the aforesaid order was passed on 1.8.1991, the second respondent had represented to this Court that agreement of sale in respect 755 of all the flats have already been entered into.
In this view, it is submitted, there has been no misrepresentation or suppression of relevant facts on their part.
We may mention that when we indicated our disagreement with the above stand during the course of hearing, the counsel for the respondents, Shri Dutta took time till 14th of January, 1993 to file a further affidavit/additional counter and/or documents in continuation of the counter already filed.
The second respondent has accordingly filed a further affidavit on 14.1.1993.
The counsel for the petitioners ' disputes the correctness, genuineness and validity of the agreement, allegedly entered into on 26.4.1991 in respect of said flats.
According to him, it is a fabricated document.
He points out that the stamp paper for the said agreement of sale was purchased by the Russel Estate Corporation and not by the purchaser of the flats.
It is also pointed out that the agreement is not a registered one and that it could have been fabricated at any time putting a back date.
It is not necessary for us to pronounce upon the disputed question whether the agreement dated 26.4.1991 relating to the said two flats on the 8th floor is true and genuine.
Assuming that the said agreement is true, we are yet of the opinion that the respondents have committed gross contempt of this Court by their brazen violation of the order dated 18 1991.
By the said order this Court directed the respondents 1 and 2 not to make "any further allotment of any other flats in the building in dispute with effect from today. ' Now what does the word "allotment" mean in the context.
In our opinion, the said word must be understood reasonably and having regard to the context.
The first respondent is not like a Government Department or Public Corporation where an allotment order or allotment letter is issued from the office in pursuance of which other steps are taken.
The first respondent is a proprietary concern, according to the petitioners, whereas according to the respondents it is a partnership concern.
In either event, there is no such thing as "allotment" in its case.
Even now, it is not their case that they have issued any orders or letters of allotment.
According to them, there was first an agreement of sale, then delivery of possession and finally a registered sale deed.
We are of the opinion that in the context and circumstances, the word "allotment" in the said order means making over of the flats.
In other words, it means delivery of possession 756 and registration of the sale deeds.
An agreement of sale, that too unregistered, has no significance in the context, difficult as it is to verify its truth and correctness.
This court could not be presumed to have interdicted such an uncertain thing.
It must be remember that even according to the respondents they had represented to this Court, at the time the said order was passed, that they have already entered into agreements of sale in respect of the flats and yet this Court chose to pass the said order.
In the circumstances, it cannot mean anything else than delivery of possession of flats and their sale.
It may also mean an agreement of sale but its meaning is certainly not confined to an agreement of sale.
To say so, as do the respondent, is to rob the order of any meaning or content.
Mr. Dutta, the learned counsel for the respondents contended that the second respondent understood the allotment in a particular manner and that the said misunderstanding, if any, was bona fide.
We are not prepared to agree.
Firstly, there could not have been any doubt in the mind of Respondent with respect to the meaning of the order.
Secondly, assuming that he had any doubt regarding its meaning, the least he could have done was to ask for a clarification of the said Order.
He could well have represented that he had already entered into an agreement of sale on 26.4.1991 in restpect of these flats and that he may be permitted to deliver possession and/or execute sale deeds in respect of said flats in favour of third parties.
He did nothing of the sort.
Having placed a highly restrictive and unwarranted interpretation upon the order of this Court, he went ahead and not only delivered possession of the flats to third parties subsequent to the said order but also registered sale deeds in their favour.
He thus rendered the said order nugatory.
It was not open to the respondents to place a convenient interpretation upon the order and proceed to act upon it, thereby totally nullifying the order of this Court.
In this context, we ought to refer to the conduct of the second respondent as disclosed from the order of this Court dated August 7, 1992 to which one of us (B.P. Jeevan Reddy, J.) was a party.
The first two paragraphs of the said order may be quoted in rull.
"In these special leave petitions notice was duly served on the respondents and the matters came up for hearing initially before a Bench of this Court comprising of Ranganathan J., Fathima Beevi J. and Ojha J. on 31.7.91 and 757 1.8.91when the parties were heard and certain interim orders were passed.
Thereafter it was listed before a Bench of this Court (of which Ranganathan J. and V. Ramaswami J. were members) on a number of occasions at which the respondents were represented and no objection was voiced against the hearing of the matters by the said Bench.
However, sometime later an attempt was made on behalf of the respondents to have these matters transferred from this Bench to some other Bench on the allegation that one of the Judges (Ranganathan J.) was biased against the respondents.
This request was made before a Bench presided over by the learned Chief Justice by the second respondent who appeared in person and made the request for the transfer of the case.
The prayer was rejected by the learned Chief Justice on 11.11.1991.
Thereafter the matter was again fisted before a Bench consisting of Ranganathan J., V. Ramaswami J. and Ojha J.
On different occasions without any demur from the parties.
It was then listed before a Bench comprising of Ramaswamy J., Yogeshwar Dayal J. and Mohan J. on 4.3.92.
This Bench directed the cases to be posted before a Bench of which Ranganathan J. is a member.
About this time, an application seems to have been presented to the Registrar that this case should be transferred to some other Bench.
However, the matters came up before us again some time last week when counsel for the respondents agreed that the matters may be listed this week.
The matters were fisted yesterday.
A person claiming to be the son of the second respondent made a request that the matter should not be heard by this Bench.
We rejected this request and made it clear to him that he should make arrangements for the conduct of the case.
The matters did not reach yesterday and when the matters came up today, a letter dated 6.8.92 written by the second respondent to his counsel revoking the counsel 's vakalatnama has been placed before us.
But the respondent No. 2 did not appear before us nor did he make other arrangements for the conduct of the case.
Sri Chatterjee, his advocate on 758 record, appeared but expressed his inability to conduct the case since his client had withdrawn the vakalatnama.
We understand that in one of the matters the respondents are represented by another counsel whose vakalatnama is also seen to have been revoked but she has not appeared or sought permission to withdraw from the case.
In these circumstances we have no other option but to proceed against the respondents ex parte.
We are unable to accede to the respondents request made on a previous occasion by the son of the second respondent for transfer of case to some other Bench.
The circumstances narrated above would show that the respondent has appeared before the Bench on several occasions without protest.
The request made for transfer, after the rejection of the earlier petition by the learned Chief Justice, is belated and is just an attempt by the second respondent to circumvent the order already passed by the Chief Justice rejecting a request for transfer and only because the Constitution of the Bench is not to his liking.
Such a request, we are clear, cannot be countenanced.
" It should be noticed that the said order dated August 7, 1992 was passed not only in the special leave petitions but also in this very Contempt Petition.
The attitude adopted by them before the Receiver (Smt.
Pratibha Bonnerjea retired Judge of Calcutta High Court, appointed by this Court as a Receiver in this case) also discloses the total disregard and disrespect the Respondents have towards the orders of this Court.
The Receiver says: "The next day, by a letter dated 22.8.92, Mr. H.N. Bhan informed me that he would not submit to the order dated 7.8.92 as the Bench was not properly constituted due to the fact that the Hon 'ble Mr. Justice V. Ramaswami was one of the judges and that an application would be moved for recalling the said order.
Thereafter, there was complete non cooperation by M/s. Russel Estate Corporation.
" The conduct of the second respondent as evidenced from the aforesaid material establishes beyond doubt that the second respondent 759 was trying to play with this Court and was consistently flouting its orders.
In the circumstances, the theory of bona fide belief, now put forward before us by his counsel, cannot be accepted.
We may at this stage deal with the further affidavit filed by the second respondent on 14.1.1993.
In para 3 of the affidavit the second respondent has stated that he has the highest regard for this Court, that he has all along complied with the orders passed by this Court and that he never intended to flout or defy the orders of the Court.
He stated further "if in spite of the aforesaid, any order of this Hon 'ble Court has been violated, the same has been so done through mistake, inadvertence and by a misunderstanding of the meaning and purport of that order and surely not intentionally and for which unconditionally apologise for self and on behalf of the Respondent firm and I beg to be excused." Then in paragraphs 4 to 12 he has "without waiving the aforesaid and fully relying thereupon" repeated the contentions which were urged by his counsel before us and which we have dealt with hereinbefore.
He stated that he understood this court 's order dated 1.8.1991 as prohibiting only the entering into of agreements of sale and not delivery of possession or registration of the sale deeds.
All the said contentions we have dealt with hereinbefore.
They need not be reiterated here.
So far as the apology contained in para 3 of the second respondent 's further affidavit is concerned, it may firstly be mentioned that it is not really an unconditional apology though it purports to say so.
While tendering unconditional apology in para 3, the second respondent has tried to defend his action in the subsequent paragraphs.
Secondly, even if we construe paragraph 3 as tendering an unconditional apology, we are not minced to accept the same having regard to the conduct of the respondent which we have adverted to hereinbefore with reference to the order of this court and the report of the Receiver.
Accordingly, we reject the apology tendered in para 3 of the further affidavit.
For the above reasons, we hold the second respondent guilty of Contempt of this Court.
Having regard to the facts and circumstances of this case, we impose a sentence of one month 's imprisonment in addition to a fine of Rs. 2,000 upon the second respondent.
The fine shall be paid into this Court within two weeks from today, in default thereof the second 760 respondent shall undergo a further imprisonment of two weeks.
The second respondent shall also pay the costs of the respondents in this Contempt case which are assessed at Rs. 5,000 within two weeks from today.
In case of failure, the Respondents are free to execute this order as a decree of Court and recover the same from the Respondents.
Mr. H.N. Bhan, who is present in the court, be taken into custody forthwith to undergo the sentence of imprisonment.
G.N. Petition allowed.
| The petitioners in the writ petition challenged the constitutional validity of chapter III C read with Section 58B(5A) of the introduced by the Banking Laws (Amendment) Act, 1983.
Along with the writ petition were had several civil appeals, where the appellants had unsuccessfully challenged the aforesaid provisions as violative of Articles 14 and 19 of the Constitution, in the High Court of Delhi, which upheld their validity, and granted a certificate to appeal to this Court vide Kanta Mehta vs Union of India, The newly incorporated Section 45S of the provided that no individual or firm or an unincorporated association of individuals shall, at any time, have deposits from more than the number of depositors specified against each in the table mentioned therein.
It was further provided that where at the commencement of the Act, the deposits held were not in accordance thereof,a period of two years was prescribed for bringing down the number of depositors within the relative limits specified in the Act, and contravention thereof was rendered penal. 'These provisions were brought into force on February 15, 1984.
On behalf of the petitioners it was submitted that Section 45B was 833 violative of the fundamental rights under Article 19(1) kg) of the Constitution as it restricts the number of depositors and the rate of interest under Section 4(2)(iii) of the Kerala Moneylenders Act, 1958, that the two year period prescribed under Section 42 is unreasonable, and that under the Kerala Act with effect from 15110185 only 149% interest alone could be charged.
It was further submitted that while receiving deposits it was not an offence and making it a criminal liability and directing payment, would amount to ex postfacto law offending Article 20(1) of the Constitution.
The writ petition and appeals were contested by submitting on behalf of the Reserve Bank of India that it was open to the Government to regulate economic activities, and that while examining the validity of such provisions courts a laws have regard to the wisdom of the Legislature as it alone has the necessary information and expertise pointing to the needs for such a legislation.
Attention was also drawn to the provisions of the Non Banking Financial Companies (Reserve Bank) Directions of 1966 which came into force on January 1, 1969 which specifically provided that deposits shall be reduced to 25% of the paid up capital for which a two years period was prescribed and that similar directions knows as Non Banking Financial Companies Reserve Bank Directions, 1977 came to be issued with effect from 1st of July, 1977, Dismissing the writ petition and the appeals, this Court, HELD: 1.
The impugned legislation no doubt places restrictions on the right of the appellants to carry on business, but what is essential is to safeguard the rights of various depositors and to see that they are not preyed upon.
[844G] 2.
The Reserve Bank of India, right from 1966, has been monitoring and following the functioning of non banking financial institutions which invite deposits and utilise those deposits either for trade or for other various industries.
A ceiling for acceptance of deposits and to requires maintenance of certain liquidity of funds as well as not to exceed borrowings beyond a particular percentage of the net owned funds have been provided in the corporate sector.
But for these requirements, the depositors would be left high and dry without any remedy.
[844H, 845A] 3.
Even the corporate sector was not free from blame.
It had done damage to the economy and brought ruination to small depositors.
Ex 834 perience had shown that In many cases deposits taken by the companies had not been refunded on the due dates, either the companies had gone in liquidation or funds are depleted to such an extent that the companies were not in a position to refund the deposits.
It was accordingly considered necessary to control the activities of the companies when accepting deposits from the 'the public".
That was why Section 58A in the Companies Act of 1956 came to be introduced.
[845B, C D] 4.
The danger of allowing deposits to be accepted without regulation is so acute and urgent, that to bind the hands of the Legislature that only one course alone is permissible and not to permit a play of joints would be to totally make it ineffective in meeting the challenge of the social evil.
The mechanics of any economic legislation has necessarily to be left to the judgment of the executive and unless it is patent that there is hostile discrimination against a class, the processual basis has to be accepted 5.
May be, Kerala Moneylenders Act restricts the rates of Interest under Section 4(2)(iii) but that cannot enable the writ petitioners to disregard these provisions introduced by the Banking laws (Amendment) Act 1983 being the non banking financial institutions.
[846D] 6.
Section 45 (1) (bb) of the Reserve Bank Act defines 'deposit.
If there are enough sources of deposit there is no reason why the appellants and the writ petitioners cannot reduce the deposits.
The prescription of the two year period for reduction is therefore reasonable.
[847D] 7.
Moreover, similar directions cam to be issued as Miscellaneous Non Banking Companies (Reserve Bank) Directions.
If, therefore, this was the position, it cannot be contended that suddenly the companies like the appellants and the writ petitioners are called upon the reduce deposits.
Even otherwise, the interests of the depositors is the prime concern.
[847G, 849B] Kanta Mehta vs Union of India and others, Company Cases Vol.
62 1987 page 769, approved.
Chiney Bottling Co. Pw. Ltd. vs Assistant Registrar of Companies, Madras, page 770, disapproved.
DCM Ltd. vs U. O.I., ; ; Srinivasa Enterpries vs Union 835 of India; , ; State of West Bengal vs Swapan Kumar Guha ; ; R.K Garg vs Union of India ; and Fatehchand Himmatlal and others vs State of Maharashtra ; , referred to, Reserve Bank of India vs Peerless General Finance and Investment Co. Ltd, ; ; Peerless General Finance and Investment Co. Ltd vs Reserve Bank of India, @ 354; Delhi Cloth and General Mills vs Union of India; , at page 468 and Reserve Bank of India vs Timex Finance and Investment Co. Ltd., at page 354, referred to.
|
Appeals Nos. 660 of 1967 and 58 of 1972.
Appeals by certificate/special leave from the judgment and decree dated August 11 / 12, 1964 of the Bombay High Court in Civil Reference No. 6 of 1959.
section T. Desai, P. C. Bhurtari, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant (in both the appeals).
V. section Desai and B. D. Sharma, for respondent No. 1 (in both the appeals).
The Judgment of the Court was delivered by Hegde, J.
Both these appeals, the former by certificate and the later by special leave arise from the decision of the High Court of Bombay in a reference under section 54 of the Bombay Stamp Act.
When Civil Appeal No. 660 of 1967 came up for hearing on a previous occasion, objection was raised as to the maintainability of the appeal on the ground that the High Court was not competent to grant a certificate in the case under article 133 of the Constitution.
At that stage, the appellant sought an adjournment of the appeal so as to enable it to move this Court for special leave against the impugned decision.
That prayer was allowed by this Court.
Thereafter the appellant sought and obtained special leave of this Court to appeal against the decision in question.
Hence Civil Appeal No. 58 of 1972 came to be filed.
In view of this appeal, we may now proceed on the basis that Civil Appeal No. 660 of 1967 stands withdrawn and the same is disposed of accordingly.
Hereafter we shall only deal with Civil Appeal No. 58 of 1972.
334 The facts leading up to this appeal are as follows On November 18, 1950, plot No. 79 at Palton Road, Bombay, admeasuring about 1,368 square yards was leased by the Government of Bombay for a period of 999 years from June 26, 1942 to one Lily Investment Corporation Ltd. On December 11, 1950, the said Lily Investment Corporation Ltd. gave a sub lease of the said plot of land to Uttamchand Tulsidas for a term of 999 years (less one day), from June 26, 1942.
thereafter Uttamchand constructed a building called "Himalaya House" on that plot consisting of several flats, shops and offices.
Under various agreements, he appears to have assigned the right of occupation in those flats, shops and offices to several persons.
One such agreement was with one Motiram Shewarama Vallicha.
That was in respect of one flat.
That agreement is in the record.
As the High Court has placed considerable reliance on that document, it is necessary to quote the relevant clauses therein viz. 2, 5 and 16.
Those clauses read thus : "2.
That the Party hereto of the Second Part hereby agrees to acquire the block bearing No. 12 on the ground floor of the said building for the total sum of Rs. 10,000 (Rupees ten thousand only).
That the possession of the said block shall be delivered to the party hereto of the Second Part provided all the amounts due under this agreement and particularly indicated in condition No. 3 hereof are paid by the party hereto of the Second Part to the Party hereto of the First Part and upon the delivery of such possession the party hereto of the Second Part shall be entitled to the use and occupation of the said block without hindrance PROVIDED NEVERTHELESS that nothing contained in these presents shall be construed as a demise in law of the said leasehold lands or any part thereof or the buildings thereon, such demise to take place only upon the transfer by a formal conveyance to a Co opera tive Society or Incorporated body to be formed as hereinafter agreed.
That the party hereto of the First Part shall form a co operative society or any other incorporated body recognized in law and the party hereto of the Second Part shall join such co operative society or any other incorporated body.
The party hereto of the First Part agrees to convey transfer or assign to the said society or any other incorporated body as the case may be the aforesaid lands and buildings provided that the costs and expenses in connection with the 335 requisition of such society or incorporated body, as well as the costs of preparing, approving, engrossing and stamping the Assignment, Transfer, or Deed of Conveyance required to be, executed by the party hereto of the First Part shall be borne by such society, or the incorporated body as the case may be." On June 28, 1955, the appellant company was incorporated and registered under the provisions of the Indian Companies Act, 1913.
On December 30, 1955, Uttamchand purported to assign all his rights in the building to the appellant company under a deed.
In the preamble to that Deed after tracing, Uttamchand 's title to the property, it is recited "AND WHEREAS the Assignee Company has been formed for the better administration of the said building and for the protection of the interests of the persons occupying flats, offices and shops therein AND WHEREAS the Assignor has agreed to assign to the Assignee all his interests in the said piece of land and building.
" Clause 1 of that Deed provides as under : 1.
The Assignor (i.e. Respondent No. 2) doth hereby for no consideration assign into the Assignee (i.e. the Appellant Company) ALL THAT the piece of land comprised in the before recited Lease together with the buildings and erections now standing and being thereon together with all rights easements and appurtenances thereto belonging and together with all the right title and interest whatever of ' the Assignor in the building known as Himalaya House EXCEPT AND RESERVED as in the before recited Lease more particularly mentioned TO HOLD the same unto the Assignee or all the residue now unexpired of the term of years granted by the before recited Lease SUBJECT to the rent reserved by and to the Agreements covenants and conditions contained in the before recited Lease henceforth on the part of the Assignee to be paid observed and performed.
" The said document bore a stamp of annas 12 only.
When the same was presented for registration, the Sub Registrar of Bombay impounded the same and sent it to the Assistant Superintendent of Stamps, Bombay.
That officer by his letter dated June 26, 1956 informed the appellant company that "as it was formed of and for the persons who had purchased the flats in the building.
the real consideration for the Assignment was made up partly of what was paid by the flat holders and the status of the appellant company was that of the nominee of the flat holders so far as the Assignment was concerned." He further stated that in the absence of any mention of consideration in the document, the then value 887 SUP@CT/72 336 of the premises was an index of the consideration.
He purporting to act under section 40 of the Indian Stamp Act, determined the stamp duty at Rs. 95,997 after valuing the building at Rs. 16,00,000.
Further he imposed a penalty of Rs. 20,000.
He called upon the appellant company to pay the stamp duty as well as the penalty.
On receipt of that communication, the appellant company applied to the Chief Controlling Revenue Authority to revise the order of the Assistant Superintendent of Stamps or in the alternative refer the matter to the High Court for its opinion.
Thereafter the Chief Controlling Revenue Authority made the reference referred to earlier to the High Court.
He submitted two questions for the opinion of the High Court, viz : "(1) Whether Himalaya House Co. Ltd. the Assignee in the Assignment dated 30th December 1955 is the nominee of the several flat holders who have purchased the flats in the Himalaya House and whether the Assignment in question is a Conveyance or a sale for a price which has passed from the hand of the flat holders long before the date of assignment.
(2) Whether it was competent to the Assistant Superintendent of Stamps, under section 40 of the Indian Stamp Act, 1899 (now section 39 of the Bombay Stamp Act, 1958) to go beyond the terms of the document when it is mentioned in the document that no consideration is passed and assess the stamp duty in the manner men tioned by him in his order dated the 26th June 1956.
" The matter came up for hearing before a bench of three Judges of the Bombay High Court presided over by the learned Chief Justice.
At the hearing, the learned Judges opined that the questions submitted by the Chief Controlling Revenue Authority were not appropriate and, therefore, they recast those questions as follows : "1.
Under which article in Schedule 1 to the Stamp Act should the Assignment Deed in question be stamped ? 2.
If Article 23 applies in this case, what is the consideration for the Assignment Deed ?" All the Judges unanimously held that the Article applicable to the case is Article 23 in the First Schedule to the Indian Stamp Act, which will be hereinafter referred to as "the Stamp Ace '.
But while answering the second question, the learned Chief Justice and Naik.
J. opined that "the consideration for the Assignment Deed is 337 the total amount which was payable to the Assignor Tulsidas under the agreements between him and the persons to whom he had, under those agreements, given the right to occupy the Rats, offices and shops in the building." But Mody J. differed from his colleagues and came to the conclusion that "the consideration is ,as mentioned in the Deed of Assignment itself i.e. no consideration All the Judges unanimously came to the conclusion that the consideration mentioned in the document is nil.
This conclusion is obvious because Clause I of the Assignment Deed says that the Assignor assigns his rights 'for no consideration '.
All of them were also unanimous in their conclusion that for finding out the consideration, the concerned authorities (who will be hereinafter referred to as 'Revenue ') cannot travel outside the document; it should be 'as set forth therein '.
But the majority took the view that the Revenue was not bound to accept the quantum of consideration mentioned in the document; it could determine the same by taking into consideration the facts available from the impounded document.
They further held that the impounded document incorporates into itself the various agreements entered into between Uttamchand and the various persons to whom he had assigned certain rights in respect of flats, offices and shops referred to earlier.
In their view, the consideration paid by those persons to Uttamchand formed part of the consideration for the Assignment Deed in.
question.
Naik J. went a little further and held that alternatively the Deed in question can be considered as a "gift" under article 33 of Schedule 1 to the Stamp Act Mody J. opined that there is no basis to hold that the agreements entered into between Uttamchand and the various persons to whom the flats, offices and shops had been assigned were similar to the agreement entered into between him and Motiram Shewarama Vallicha.
He held that on the basis of the material before the Court, it was not possible to come to the conclusion that they had entered into agreements with Uttamchand similar to the agreement entered into between Uttamchand and Motiram Shewarania Vallicha.
He further held that on a plain reading of the Assignment Deed, it is not possible to come to the conclusion that the terms and conditions in the agreements entered into by Uttamchand with those to whom he had assigned flats, offices and shops, were incorporated into the Assignment Deed.
None of the Judges upheld the conclusion of the Assistant Superintendent of Stamps that the appellant company is a nominee of the persons to whom the flats, offices and shops had been assigned; nor did they agree with his conclusion that if in a document, the value of the rights assigned is not mentioned, it is permissible, for the Revenue to assess their value independently.
338 The contention that the appellant company is a nominee of the various persons to whom flats, offices and shops had been assigned was not pressed before us; nor was it urged before us that the Revenue is competent to make an independent assessment of the value of the rights assigned.
Though at one stage, it was feebly suggested that the Deed of Assignment may be considered as a gift but that contention was not elaborated; nor do we see any merit in that contention because in the first place, it does not purport to be a gift; secondly, the valuation of "gift" under Article 33 of the First Schedule has to be made on the same basis as the valuation of a "conveyance" under Article 23 of that Schedule.
Article 33 specifically says that the duty payable on a gift deed will be "same as a conveyance for a consideration equal to the value of the property as set forth in such instrument.
" For the purpose of this case, we shall proceed on the assumption, without deciding, that the charging words in Article 23 of the Stamp Act "where the amount or value of the consideration for such conveyance as set forth therein" do not mean that the Revenue must have regard only to what the parties to the instruments have elected to state the consideration to be, but the duty must be assessed upon the amount or value of the consideration for the transfer as disclosed upon an examination of the terms of the instrument as a whole.
We are of the opinion, that the learned Chief Justice and Naik J. were not justified in holding that the Deed of Assignment incorporates into itself the various agreements entered into between Uttamchand and the persons to whom he assigned flats, offices and shops.
The only reference to those persons in the Deed of Assignment is in the preamble wherein it is stated "AND WHEREAS the Assignor having erected a building known is Himalaya House on the said piece of land had granted to certain persons the right to occupy flats, offices and shops in the said building AND WHEREAS the Assignee Company has been formed for the better administration of the said building and for the protection of the interests of the persons occupying the flats, offices and shops therein.
" These clauses merely refer to the earlier transactions.
They do not incorporate into the Assignment Deed the earlier agreements with the persons referred to therein.
Mere reference to some earlier transactions in a document does not amount to an incorporation in that document, of the terms and conditions relating thereto.
From the language used in the Assignment Deed it is not possible to come to the conclusion that the terms and conditions of the earlier transactions have been made a part of that Deed.
Further barring one particular agreement, other agreements were not before the Court.
Therefore, it is not possible to know what the terms and conditions of those agreements were.
Before the terms and conditions of at, 339 agreement can be said to have been incorporated into another document, the same must clearly show that the parties thereto intended ,to incorporate them.
No such intention in available in this case.
It was urged that in view of section 27 of the Stamp Act, it was permissible for the Revenue to look into the terms and conditions of the agreements entered into by Uttamchand with the various persons to whom he had assigned flats, offices and shops, particularly in view of the fact that the impounded document makes reference to those agreements.
We are not able to accept that contention.
Section 27 prescribes that "The consideration (if any) and all other facts and circumstances affecting the charge ability of any instrument with duty, or the amount of the duty with which it is chargeable shall be fully and truly set forth therein.
" It is true that in view of this provision, the parties to a document are required to set forth in the document fully and truly the consideration (if any) and all other facts and circumstances affecting the chargeability of that document with the duty or the amount of the duty with which it is chargeable.
But a failure to comply with the requirements of that section is merely punishable under section 64 of the Stamp Act.
No provision in the Stamp Act empowers the Revenue to make an independent inquiry of the value of the property conveyed for determining the duty chargeable.
Article 23 is the Article that governs the charging of Stamp duty on "conveyance".
That Article to the extent relevant for our present purpose reads : "23.
Conveyance (as defined by section 2(10) not being a transfer charge or exempted under section 52Where the amount or value of the consideration for such conveyance as set forth therein. . " This Article has come up for consideration before various High Courts on a number of occasions.
In Ramen Chetty vs Mohamed Ghouse(1) the Calcutta High Court held that in determining whether a document is sufficiently stamped for the purpose of deciding upon its admissibility in evidence, the document itself as it stands, and not any collateral circumstances which may be shown in evidence must be looked at.
In Sakharam Shankar and Others vs Ramchandra Babu ohire,(2) it was held that in determining the question whether a particular document is sufficiently stamped, the Court should look at the instrument as it stands.
A Full Bench of the Allahabad High Court in the matter of Muhammad Muzaffar Ali(3) held that if in a deed of gift the value of the property dealt with is not set forth, the deed does not require any stamp, and it is not within the competence of the Collector to have the said property valued in order to assess the duty (1) (ILR 2 (ILR (3) (ILR 44 All. 339).
340 payable.
If, however, the value of the property is intentionally omitted with a view to defraud the Revenue, a prosecution will lie under section 64 of the Stamp Act.
A Division Bench of the Patna High Court in Sri Sitaram Ramalia and Another vs State of Bihar(1) held that the Collector had no power under section 40 of the Stamp Act to embark upon an inquiry with regard to the market value of the properties covered by the document and require the payment of further stamp duty in accordance with his finding as to valuation and, therefore, that the impugned orders of the Collector, Commissioner and the Board were ultra vires and were liable to be set aside under Article 227 of the Constitution.
Therein the Court was considering the scope of section 58 of the Stamp Act which requires that an instrument of settlement should be stamped with the same duty as a bond "for a sum equal to the amount or value of the property settled as set forth in such settlement.
" The Court observed that the words 'as set forth in the settlement" in the section refer back to the word "value" and not to the words "property settled".
Recently the same view was taken by the Andhra Pradesh High Court in Bharpet Mohammad Hussain Sahib and Another vs District Registrar, Kurnool(2).
No decision taking a contrary view was brought to our notice.
The question arising for decision in this case is settled by stare decision.
We are entirely in agreement with the view expressed in those decisions.
Even if we had been inclined to place a different interpretation on Article 23, we would have hesitated to do so in view of the long line of decisions to some of which we have already made reference.
The Legislature may have had.
good reasons for not empowering the Revenue to make an independent inquiry as regards the valuation of the right sought to be assigned.
Under any circumstance, there was no basis to hold that the consideration for the impounded Deed is the total amount received by Uttamchand under the agreements entered into between him and the persons to whom he had assigned certain rights in the flats, offices and shops in the building.
Those persons had an independent right of their own.
Their rights did not flow from the impounded Assignment Deed.
Whether the title obtained by them was perfect or not, there is no denying of the fact that they had acquired valuable rights even before the impounded Deed was executed.
For the reasons mentioned above, we allow this appeal and in place of the answers given by the High Court, we answer the question formulated by that Court thus "1.
The Article applicable in this case is Article 23 in the First Schedule to the Stamp Act, and (1) (ILR 39 Pat.
(2) TLR.
341 2.
the consideration is as mentioned in the Deed of Assignment itself i.e. no consideration.
" The first respondent shall pay the costs of the appellant in Civil Appeal No. 58 of 1972.
There will be no order as to costs in Civil Appeal No. 660 of 1967.
| Section 4, sub section
(1) (c), of the East Punjab Public Safety Act of 1949 which was passed on the 29th March, 1949, and was to be in force until the 14th August, 1951, provided that "The Provincial Government or the District Magistrate, if satisfied with respect to any particular person that with view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary to do so, may, by order in writing, give a direction that such person shall remove himself from, and shall not return to, any area that may be specified in the order.
" Sub section (3) of section 4 provided that "an order under sub section
(1) made by the District Magistrate shall not, unless the Provincial Goverment by special order otherwise directs, remain in force for more than three months from the making thereof," and sub section
(6) laid down that "when an order has been made in respect of any person under any of the clauses under section 4, sub section
(1) or sub section
(9.), the grounds of it may be communicated to him by the authority making the order, and in any case when the order is to be in force for more then three months, he shall have a right of making a representation which shall be referred to the Advisory Tribunal constituted under section 3, sub section
" The petitioner, against whom an order under (1) (c) of the Act was passed applied to the Court under article 39, of the Constitution for a writ of certiorari contending that the order was illegal inasmuch as the provisions of the above mentioned Act under which the order was made infringed the fundamental right to move freely throughout the territo ry of India which was guaranteed by article 19 (1) (d) of the Constitution and were accordingly void under article 13 (1) of the Constitution: Held, per KANIA C.J., FAZL ALl and PATANJALI SASTRI, J3.
(MAHAJAN and MUKHERJEA, JJ.
dissenting) (i) that there was nothing unreasonable in the provision contained in sub section
(1) (c) empowering the Provincial Government or the Dis trict Magistrate to make an externment order, and making their satisfaction as to the necessity of making such an order final, or in the provisions contained in sub section
(3) of section 4 that an order of a District Magistrate may remain in force for three months and that the Provincial Government may make an order, or keep alive an order made by a District Magistrate, for a period exceeding three months without fixing any time limit; (ii) with regard to sub section
(6), the word "may" in the expression "may communicate" must, in the context, be read as meaning "shall" and under the sub sec tion it is obligatory on the authority making an order to communicate the grounds to the externee;.(iii) the restric tions imposed by the above mentioned provisions of the Act upon the fundamental right guaranteed by article (19) (1) (d) were not, therefore, unreasonable restrictions within the meaning 01 article 19 (5) and the provisions of the Act were not void under article 13 (1), and the order of externment was not illegal.
Per MUKHERJEA J. (MAHAJAN J. concurring) Though certain authorities can be invested with power to make 521 initial orders on their own satisfaction in cases of this description, and section 4 (1) (c) of the East punjab Public Safety Act cannot be pronounced to be unreasonable simply because an order I could be passed by the Provincial Gov ernment or the District Magistrate on their own personal satisfaction and not on materials, which satisfy certain objective tests, yet, the position would be different if the order thus made is allowed to continue for any indefinite period of time without giving the aggrieved person an oppor tunity to say what he has got to say against the order; and inasmuch as sub section
(3) of section 4 prescribes no limit to the period of time during which an externment order would remain in force if it is made by the Provincial Government, and the Provincial Government is also given power to keep an order made by a District Magistrate in force for an indefinite period, the provisions of sub section
(3) are manifestly unrea sonable.
The provisions of sub section
(6)of section 4 are also unreasonable as they make it entirely optional with the authorities to communicate to the person affected, the grounds upon which the order is made.
Neither sub section
(3) nor sub section
(6) of section 4 can, therefore, be said to have imposed restrictions which are reasonable in the interests of the general public within the meaning of article 19 (5) and these provisions of the Act were consequently void and inoperative under article 13 (1)of the Constitution, and the externment order was illegal.
Held also, per KANIA C.J., FAZL ALI, MAHAJAN and MUKH ERJEA JJ.
Whether the restrictions imposed by a legislative enactment upon the fundamental right guaranteed by article 19 (1) (d) are reasonable within the meaning of article 19 (5) of the Constitution would depend as much on the procedural portion of the law as the substantive part of it] and in considering whether such restrictions are reasonable the Court is not therefore bound to confine itself to an exami nation of the reasonableness of the restrictions in the abstract with reference to their duration and territorial extent.
The Court can also consider the reasonableness of the procedural part of the law and the circumstances under which, and the manner in which, the restrictions have been imposed.
[PATANJALI SASLUP, I J. did not express any opin ion on this point.]
|
ivil Appeal No. 850 of 1966.
870 Appeal by special leave from the judgment and decree dated March 5, 1965 of the Bombay High Court in First Appeal No. of 1963.
section Sorabli, Bhuvanesh Kumari and J.B. Dadachanji, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought by special leave fro.m the judgment of the.
Bombay High Court dated March 5, 1965 in Appeal No. 415 of 1963.
Shalkh Hassan Ibrahim (hereinafter referred to as the missing seaman) was employed as a deck hand, a seaman of category II on the ship sections "Dwarka" which is owned by the British India Steam Navigation Company Limited of which the appellant is the Agent.
The Medical Log Book of the shop shows that on December 13, 1961 the missing seaman complained of pain in the chest and was, therefore, examined, but nothing abnormal was detected clinically.
The Medical Officer on board the ship prescribed some tablets for the missing seaman and he reported fit for work on the next day.
On December 15, 1961, however, he complained of insomnia and pain in the chest for which the Medical Officer prescribed sedative tablets.
The official Log Book of the ship shows that on December 16, 1961 when the ship was in the Persian Gulf the missing seaman was seen near the bridge of the ship at about 2.30 a.m.
He was sent back but at 3 a.m. he was seen on the Tween Deck when he told a seaman on duty that he was going to bed.
At 6.15 a.m. he was found missing and a search was undertaken.
At 7.35 a.m. a radio message was sent by the Master of the ship.
saying: "One seaman missing between Khoramshahr and Ashar STOP May be in river STOP All ships please keep look out".
The ship arrived alongside Ashar Jetty at 8 a.m. when a representative of Messrs Gray, Mackenzie & Co. Ltd., who are the agents for the British India Steanm Navigation Co. Ltd., in the Persian Gulf was informed that the said seaman was missing.
The representative in turn passed on the information to the local police and the Port authorities.
The last entry in the log book shows that at 4 p.m. an inquiry was held on board the ship by the local police and the British Consul General.
On a suggestion made by the latter, the personal effects of the missing seaman were checked and sealed by the Consulate authorities for being deposited with the Shipping Master, Bombay.
On February 20, 1962 the respondent filed an application under section 3 of the Workmen 's Compensation Act (Central Act 18 of 1923) (hereinafter referred to as the Act) claiming compensation of Rs. 4,810/ for the death of his son, the missing seaman, which 871 according to him, occurred on account of a personal injury caused by an accident arising out of and in the course of his employment.
The appellant put in a written statement on April 26, 1962 and disputed the respondent 's claim on the ground that there was nothing to show that the seaman was in fact dead, that the death, if any, was not caused in the course of the employment, that in any event the death could not be said to have been caused by an accident which arose out of employment and that the probabilities were more consistent with a suicidal death than with an accidental death.
But the appellant did not lead oral evidence at the trial of the claim.
The Additional Commissioner, however, inspected the ship on January 23, 1963.
By his judgment dated February 6, 1963 held that there was no evidence to show that the seaman was dead and there was in any event no evidence to justify the inference that the death of the missing seaman was caused by an accident which arose out of employment.
In the course of his judgment the Additional Commissioner observed as follows: "Now in the present case what is the evidence before me ? It is argued on behalf of applicant that I must presume that the man fell down accidentally.
From which place did he fall down ? How did he fall down ? At what time he fell down ? Why was he at the time at the place from which he fell down ? All these questions, it is impossible to answer.
Am I to decide them in favour of the applicant simply because his 'missing ' occurs in the course of his employment ? In my opinion there is absolutely no material before me to come to a conclusion and connect the man 's disappearance with an accident.
There are too many missing links.
Evidence does not show that it was a stormy night.
I had visited the ship, seen the position of the Bridge and deck and there was a bulwark more than 31/2 feet.
The man was not on duty.
Nobody saw him at the so called place of accident.
In these circumstances I am unable to draw any presumption or conclusion that the man is dead or that his death was due to an accident 'arising out of his employment.
Such a conclusion, presumption or inference would be only speculative and unwarranted by any principle of judicial assessment of evidence or permissible presumptions.
" The Additional Commissioner, however, negatived the contention of appellant that the death, if any, was caused by the seaman 's voluntary act.
The respondent preferred an appeal on April 17, 1963 to the High Court from the judgment of the Additional Commissioner dated February 6, 1963.
At the hearing of the appeal it was agreed that the appellant would pay to the 872 respondent a sum of Rs. 2,000/ as and by way of compensation in any event and irrespective of the result of the appeal.
The respondent agreed to accept the sum of Rs. 2,000/ .
But in view of the serious and important nature of the issues.
the High Court proceeded to decide the questions of law arising in the appeal.
By his judgment dated March 5, 1965 Chandrachud J., allowed the appeal and reversed the judgment of the Additional Commissioner and granted the application for compensation.
The view taken by Chandrachud J., was that the death of the seaman in this case must be held to have occurred on account of an accident which arose out of his employment.
The principal question that arises in this appeal is whether the accident arose in the course of employment and whether it arose out of employment within the meaning of 'section 3 of the Act which states: "(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter: Provided that the employer shall not be so liable (a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days; (b) in respect of any injury, not resulting in death, caused by an accident which is directly attributable (i) the workman having been at the time thereof under the.
influence of drink or drugs, or (ii) the willful disobedience of the workman to an order expressly given, or to a rule expressly framed, for the purpose of securing the safety of workmen, or (iii) the willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen.
To come within the Act the injury by accident must arise both out of and in the course.
of employment.
The words "in the course of the employment" mean "in the course of the work which the workman is employed to do and which is incidental to it.
" The words "arising out of employment" are understood to mean that "during the course.
of the employment, injury has resulted from some risk incidental to the duties of the service, which unless engaged in the duty owing to the master, it is reasonable 873 to believe the workman would not otherwise have suffered." In other words there must be a causal relationship between the accident and the employment.
The expression "arising out of employment" is again not confined to the mere nature of the employment.
The expression applies to employment as such to its nature, its conditions, its obligations and its incidents.
If by reason of any of these factors the workman is brought within the scene of special danger the injury would be one which arises 'out of employment '.
To put it differently if the accident had occurred on account of a risk which is an incident of the employment, the claim for compensation must succeed, unless of course the workman has exposed himself to an added peril by his own imprudent act.
In Lancashire and Yorkshire Railway Co. vs Highley(1) Lord Sumner laid down the following test for determining whether an accident "arose out of the employment": "There is, however, in my opinion, one test which is always at any rate applicable, because it arises upon the very words of the statute, and it is generally of some real assistance.
It is this: Was it part of the injured person 's employment to hazard, to suffer, or to do that which caused his injury ? If yea, the accident arose out of his employment.
If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment.
To ask if the cause of the was within the sphere of the employment, or was one of the ordinary risks of the employment, or reasonably incidental to the employment, or conversely, was an added peril and outside the sphere of the employment, are all different ways of asking whether it was a part of his.
employment, that the workman should have acted as he was.
acting or should have been in the position in which he was, whereby in the course of that employment he sustained injury.
" In the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the course of employment.
But this does not mean that a workman who comes to court for relief must necessarily prove: it by direct evidence.
Although the onus of proving that the injury by accident arose both out of and in the course of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference.
On the one hand the Commissioner must not surmise, conjecture or guess; on the other hand, he may draw an inference from the proved facts so long as it is a legitimate inference.
It is of course impossible to.
lay down any rule as to the degree of (1) 874 proof which is sufficient to justify an inference being drawn, but ' the evidence must be such as would induce a reasonable man to draw it.
Lord Birkenhead L.C. in Lancaster vs Blackwell Colliery Co. Ltd., ( 1 ) observed: "If the facts which are proved give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture, then, of course, the applicant fails to prove his case because it is plain that the onus in these matters is upon the applicant.
But where the known facts are not equally consistent, where there is ground for comparing and balancing probabilities as to their respective value, and where a reasonable man might hold that the more probable conclusion is that for which the applicant contends, then the Arbitrator is justified in drawing an inference in his favour." In cases of the unexplained drowning of seamen, the question has often arisen as to whether or not there was evidence to justify the inference drawn by the Arbitrator that the seaman met his death through accident arising out of and in the course of his employment.
The question was considered by the House of Lords in Kerr or Lendrum vs Ayr Steam Shipping Co. Ltd.(a) in which the steward of a ship, which was in harbour, was lying in his bunk, when he was told by the captain to prepare tea for the crew.
He was shortly afterwards missing, and the next day his dead body, dressed ' in his underclothes only, was found in the sea near the ship.
The bulwarks were 3 feet 5 inches above the deck.
The steward was a sober man, but was subject to nausea.
Murder and suicide were negatived by the Arbitrator, who drew the inference that the deceased left his bunk, went on deck, and accidentally fell overboard and was drowned.
He accordingly held that the accident arose out of and in the course of his employment as steward.
The Court of Sessions reversed his decision on the ground that there was no evidence to support it.
The House of Lords (Earl Lorebum, Lord Shaw of Dunfermline and Lord Parmoor, Lord Dunedin and Lord Atkinson dissenting), however, upheld the decision of the Arbitrator on the ground that, although upon the evidence it was open to him to have taken a different view, his conclusion was such as a reasonable man could reach.
"I should state my main proposition thus," said Lord Shaw of Dunfermline, "that we in this House are not considering whether we would have come to the same conclusion upon the facts stated as that at which the (1) 1918 W.C. Rep. 345.
(2) [1195] A.C. 217.
875 learned Arbitrator has arrived.
Our duty is a very different, a strikingly different one.
It is to consider whether the Arbitrator appointed to be the judge of the facts, and having the advantage of hearing and seeing the witnesses, has come to a conclusion which could not have been reached by a reasonable man." Lord Parmoor said: I wish to express no opinion either way on the reasonableness of the finding in itself as long as it is possible finding for a reasonable man," whilst Earl Loreburn observed that they should regard these awards in a very broad way and constantly remember that they were not the tribunal to decide." In the case of unexplained drowning of seamen, the English Court of Appeal have drawn some very fine distinctions.
In Bender vs Owners of S.S. "Zent"(1) the chief cook on board a steamship fell overboard and was drowned while the ship was on the high seas.
He was seen at 5.25 a.m. looking over the side; 5.30 a.m. was his usual time for turning out; and he was last seen at 5.35 a.m. going aft.
The weather was line at the time, it was daylight, the ship was steady, and there was no suggestion that the duties of the deceased would lead him into any danger.
There was a 4 ft. rail and bulwark all round the ship and there was no evidence to show how the deceased had fallen overboard.
The County Court Judge drew the inference that his death was caused by an accident arising out of and in the course of his employment, but the Court of Appeal held that there was no evidence to warrant such inference, Cozens Hardy, M.R. pointing out that, although it was conceivable that he might have been engaged on some ship 's work, it was equally conceivable that he had been larking or had committed suicide.
Bender 's case(1) was followed in Marshall vs Owners of S.S. "Wild Rose(2) where an engineer came on board his vessel, which was laying in a harbour basin, shortly after 10 p.m. Steam had to be got up by midnight.
He went below and took off his clothes, except his trousers, shirt and socks.
It was a very hot night, and he subsequently came out of his berth, saying that he was going on deck for a breath of fresh air.
Next morning his dead body was found at the side of the vessel, just under the place where the men usually sat.
It was held by the Court of Appeal, reversing the County Court Judge, that there was no legitimate ground for drawing the inference that the engineer died from an accident ,arising out of his employment.
Farwell, L.J. said: "If an ordinary sailor is a member of the watch and is on duty during the night and disappears, the in ference might fairly be drawn that he died from an acci (1) (2) [1909] 2 K.B. 46.
876 dent arising out of his employment.
But if, on the other hand, he was not a member of the watch, and was down below and came up on deck when he was not required for the purpose of any duty to be performed on deck, and disappeared without our knowing anything else, it seems to me that there is absolutely nothing from which any Court could draw the inference that he died from an accident arising out of his employment." This decision was upheld by the House of Lords by a majority of one (Lord Loreburn, L.C. and Lord James of Hereford dissenting) Lord Shaw of Dunfermline saying: "The facts in every case may leave here and there a hiatus which only inference can fill.
But in the present case, my Lords., the name of inference may be apt to be given to what is pure conjecture.
What did the sailor Marshall do when he left his berth and went on deck ? Nobody knows.
All is conjecture.
Did he jump overboard, walk overboard, or fall overboard ? One can infer nothing, all is conjecture.
Was there an accident at all, or how and why did the deceased unhappily meet his fate ?.
There can be, in my view, nothing dignified with the name of an inference on this subject, but again only conjecture.
" But in Rice vs Owner of Ship "Swansea Vale" (1) where the deceased was a "seaman" in the strict sense of the term that is to say, one whose duty it was to work on deck and not a ship is cook, 'as in Bender 's case, nor an engineer as in Marshall 's case, a different conclusion was arrived at.
In that case the chief officer of a vessel, who was on duty on deck, disappeared from the ship in broad daylight.
No. one saw him fall overboard, but there was evidence that not long before he had complained of headache and giddiness.
It was held, (Buckley, L.J. dissenting) that there was evidence from which the Court might infer that he fell overboard from an accident arising out of and in the course of his employment.
The cases of Bender and Marshall were distinguished, as in those cases the men 's duties were below deck and at the time they lost their lives they had certainly no duties which called them on the deck.
In the House of Lords, Lord Lorebum, L.C. having discussed the various things that might have happened, said: "The other alternatives were suicide or murder.
If you weigh the probabilities one way or the other, the probabilities are distinctly greater that this man perished through an accident arising out of and in the course of his employment.
" (1) 877 In Gatton vs Limerick Steamship Co.(1) a night watchman on board a vessel, whose hours of duty were from 7 p.m. to 7 a.m. when he awoke the crew, was last seen on board at 6 a.m. but on that morning he did not awake the crew.
His cap was.
found on the deck, and his body was found in the harbour some months afterwards.
The County Judge held that it was not proved that the accident arose "out of ' his employment and the Court of Appeal on the ground that this was a finding of fact with evidence to support it, refused to interfere.
Holmes, L.J., however, stated that the County Court Judge might have arrived at a different conclusion of fact, whilst Cherry, L.J., said that, if he had been the Arbitrator, he would have found that the deceased had met with his death by accident arising out of and in the course ' of his employment.
In another similar case Rourke vs Mold & Co. (2) a seaman disappeared during his spell of duty at the wheel in the wheel house in the centre of the flying deck and was not afterwards seen.
The night was rough, the sea choppy but the vessel was steady.
The flying deck was.
protected by a rail.
There was no evidence as to how the man met his death and in spite of the presumption against suicide the County Court Judge was unable to draw the inference that the death was due to accident.
It was held by the Court of Appeal that in the circumstances the conclusion of the County Court Judge was right.
At p. 321 of the Report O 'Brien, L.C. said: "In this case we cannot interfere with the finding of the County Court Judge.
The post of duty of the deceased was at the wheel and to steer a certain course until ordered to change it, but nobody knows how the man disappeared, or how he came to leave his post.
It is conceivable that he may have fallen overboard in such circumstances as to entitle his widow to claim compensation on the ground that his death was due to an accident arising out of and in the course of the employment; but the onus of proof is on the applicant.
That onus is not discharged by asserting that we must assume that the deceased was at his allotted employment when he fell overboard, although the natural inference would be that he was not, and that we should then draw the conclusion that the accident arose out of and in the course of the employment.
" In Simpson V.L.M. & section Railway Co.(3) Lord Tomlin reviewed all the previous authorities and stated the principle as follows: " . from these passages to which I have referred I think this rule may be deduced for application to (1) (2) [1917] 2 It.
Rep. 318 at 321.
(3) 878 that class of case which may be called unexplained accident cases namely, that where me evidence establishes that in the course of his employment the workman properly in a place to which some risk particular thereto attaches and an accident occurs capable of explanation solely by reference to that risk, it is legitimate, notwithstanding the absence of evidence as to the immediate circumstances of the accident, to attribute the accident to that risk, and to hold that the accident arose out of the employment; but the inference as to the origin of the accident may be displaced by evidence tending to show that the accident was due to some action of the workman outside the scope of the employment.
Such a rule so stated seems to me to be consistent with all the previous decisions of your Lordships ' House including Marshall vs Owners of S.S. Wild Rose(1) where there was some evidence from Which it could be inferred that the seaman who fell overboard had by action of his own outside his employment added a peril to his position.
" In the same case Lord Thankerton expressed the principle in similar language.
Lord Thankerton said at p. 371 of the Report: " . the principle to be applied in such cases is that if the accident is shown to have happened while the deceased was in the course of his employment and at a place where he was discharging the duties of his employment, and the accident is capable of being attributed to a risk which is ordinarily inherent in the discharge of such duties, the arbitrator is entitled to infer, in the absence of any evidence tending to an opposite conclusion, that the accident arose out of the employment." In a later case in the House of Lords, Rosen vs
S.S. "Querous" :(Owners) Lord Buckmaster explained that in that passage in Lord Thankerton 's speech in Simpson 's case(2) the place referred to was not the exact spot at which the accident may have occurred, but meant, in that case the train on which the workman was traveling and in the later case in the House of Lords the ship on which the workman was employed.
The same principle applies in Indian law as the language of section 3 of the Indian Act is identical with section 1 of the English Workmen 's Compensation Act of 1925.
What are the facts found in the present case ? Shaikh Hassan Ibrahim was employed as a deck hand, a seaman of category II on the ship.
The medical log book of the ship showed that on (1) (2) 879 December 13, 1961 Shaikh Hassan complained of pain in the chest and was, therefore, examined, but nothing abnormal was detected clinically.
The Medical Officer on board the ship prescribed some tablets for Shaikh Hassan and he reported fit for work on the next day.
On the 15th, however, he complained of insomnia and pain in the chest for which the Medical Officer prescribed sedative tablets.
The official log book of the ship shows that on the 16th when the ship was in the Persian Gulf, Shaikh Hassan was seen near the bridge of the ship at about 2.30 a.m.
He was sent back but at 3 a.m. he was seen on the Tween Deck when he told a seaman on duty that he was going to bed.
At 6.15 a.m. he was found missing and a search was undertaken.
The dead body, however, was not found either on that day or later on.
The evidence does not show that it was a stormy night.
The Commissioner made a local inspection of the ship and saw the position of the bridge and deck and found that there was a bulwark more than 31/2 feet.
Nobody saw the missing seaman at the 'so called place of accident.
The Additional Commissioner held that there was no material for holding that the death of the seaman took place on account of an accident which arose out of his.
employment.
In our opinion the Additional Commissioner did not commit any error of law in reaching his finding and the High Court was not justified in reversing it.
For these reasons we hold that this appeal must be allowed and the judgment of the Bombay High Court dated March 5, 1965 must set be aside.
R.K.P.S. Appeal allowed.
| Respondent No. 1 retired from the service of the appellant bank on July 19, 19 '62 after 32 years of service.
Under the Bank 's bye laws Gratuity Fund Rules were sanctioned by the Board of Directors on August 17, 1957.
These rules were forwarded to the Registrar of Cooperative Societies for approval and they were 'approved with some modification except Rules 6, 10 and 15.
On his retirement Respondent No. 1 was paid a sum of Rs. 5,070/ as gratuity.
He instituted arbitration proceedings in the Court of the Registrar 's Nominee for a further sum of Rs. 7,605/as balance of gratuity payable to him with interest at 6 per cent.
The claim was disallowed and an appeal before the Maharashtra State Cooperative Tribunal 'also failed.
The High Court however in a petition under article 227 of the Constitution allowed the respondent 's claim.
The Bank appealed to this Court.
It was urged on behalf of the appellant (i) that Rule 6, the last sentence of which provides for the grant of gratuity and RuIe 10 which provides for contributions by the Bank to the Gratuity Fund not having been approved by the Registrar, there remained no basis for the claim of gratuity by respondent No. 1; (ii) that the old rules had neither been repealed nor altered and the effect of retrospective operation of the new rules was that the Registrar had withdrawn his approval to the old rules and enforced the new ones.
HELD: (i) The argument that r. 6 not having been approved there was no rule under Which the obligation to pay gratuity arose ignored the express language of r. 7 which, in unequivocal terms requires gratuity to be granted in case of retirement.
resignation or termination of services according to the rate specified therein.
Clause (a) of this rule contains a provision similar in effect to what the last sentence of r. 6 directs.
Rule 9 also imposes an imperative obligation for the payment of gratuity under these rules within one month from the retirement.
resignation, death or termination of service of the employee concerned.
[195 D F] (ii) The non approval of r. 10 by the Registrar also could not make the other rules ineffective and could not absolve the Bank of the obligation imposed on it by rr. 7, 8 and 9.
Once the Gratuity Fund Rules imposing an obligation on the Bank to pay gratuity to its employees are approved by the Registrar, then this obligation cannot be rendered nugatory merely because there is no separate Gratuity Fund.
[195] 193 It was conceded that the new rules could not detract from or prejudicially affect the vested rights created under the old ' rules.
Old Rule 16 expressly prohibits the retrospective operation of the new rules with the object of protecting the interests of the employees.
The effect of old r. 16 cannot be negatived by describing the process as mere withdrawal of the approval of the old rules and enforcement of the new ones.
[196 B D]
|
iminal Appeal No. 16 of 1970.
Appeal by special leave from the judgment and order dated the 12 9 69 of the Allahabad High Court, in Criminal Appeal Nos. 1096 and 1097 of 1966.
Nuruddin Ahmed and U. P. Singh, for the appellants.
O. P. O. P. Rana, for the respondent.
The Judgment of the Court was delivered by KHANNA, J.
This is an appeal by special leave by Lalji (23), Mahabir (45), Nar Singh (30), Paras Nath (27) and Ram Naresh (30) against the judgment of the Allahabad High Court affirming on appeal the conviction and sentence of the appellants.
Lalji has been convicted under section 304 Part I and section 148 Indian Penal Code 368 and has been sentenced to undergo rigorous imprisonment for a period of ten years on the first count and rigorous imprisonment for a period of two years on the, second count.
Lalji has, in addition to that, been convicted for offences under section 324 read with section 149, section 325 read with section 149 and section 323 read with section 149 and has been sentenced to undergo rigorous imprisonment for a period of two years, 21 years and one year respectively.
Mahabir, Nar Singh, Paras Nath and Ram Naresh have been convicted under section 147, section 304 Part I read with section 149, section 324 read with section 149, section 325 read with section 149 and section 323 read with section 149 Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for a period of 18 months, five years, 18 months, 21 years and one year respectively.
The sentences in the case of each of the appellants have been ordered to run concurrently.
Budhdhu (50) and Munni Lal (20) were tried along with the appellants.
Munni Lal was acquitted by the trial court, while Budhhu was acquitted by the High Court.
The appeal arises out of an occurrence which took place at 7 a.m. on March 29, 1965 in Nawagarh near village Shahpur Nawada at a distance, of five miles from police station Chandauli in Varanasi district.
As a result of that occurrence, Pancham (45) received fatal injuries and later died at 11 a.m. Injuries were also received by Nand Lal (PW 1), Munshi (PW 2), Jhuri (PW 3), Potan (PW 5) and Bhaggan on the side of the complainant.
On the side of the accused, Lalji, Mahabir, Paras Nath and Ram Naresh received in juries.
Both parties rushed be the police station and lodged reports.
On the side of the complainant, report was lodged by Nand Lal PW at 8.30 a.m., while on the side of the accused, report was lodged by Mahabir at 8.35 a.m.
On the basis of those reports, two cases were registered and both parties were sent up for trial.
The trial court convicted the accused appellants and Budhdhu in the present case, and Nand Lal.
Munshi, Jhuri, Bbaggan and one Sheo in the cross case.
Lalji accused is the son of Budhdhu accused.
Ram Naresh, Paras Nath and Nar Singh accused are the maternal uncle 's sons of Mahabir accused.
The prosecution case is that Nand Lal PW is the owner of plot No. 129/2.
Mahabir accused, who is a collateral of Nand Lal PW. owns the adjoining plot.
Mahabir had put up a hut on his own plot.
There is a mend (dividing ridge) between the plots of Nand Lal and Mahabir, On the morning of March 29, 1965, it is stated, Pancham deceased and Nand Lal PW saw that Budhdhu and Mahabir were digging earth and thus extending the frontage of Mahabir 's hut.
Ram Naresh armed with a gandasa, Lalji and Munni Lal armed with spears and Nar Singh and Paras Nath armed with lathis were standing close to Mahabir with a view to help him.
Pancham raised a Drotest against the act of the accused party whereupon Mahabir and Budhhu picked up lathis and those two accused along with the other accused started beating Pancham and Nand Lal with their respective weapons.
Jhuri and Munshi then came there, but they too were attacked.
Potan and Bhaggan also tried to intervene, but injuries were caused to them also by the accused party.
369 During the course of this occurrence, Lalji thrust his spear in the abdomen of Pancham who fell down on the ground.
Nana Lal, Jhuri, and others on the side of the complainant used their lathies, and in the process the accused were injured.
Bhaggan on medical examination was found to have two 'injuries caused by blunt weapon.
One of those injuries was grievous as it had resulted in the fracture of humerus bone of the left forearm.
Jhuri, Munshi and Nand Lal PWs had nine, seven and nine simple injuries respectively caused by blunt weapon.
Potan PW had four simple injuries, out of which three had been caused by blunt weapon and one with sharp edged pointed weapon.
Post mortem examination of Pan cham revealed that he had six injuries, out of which one was a stab, wound, one was an incised wound, three were contusions and one was an abrasion.
The fatal injury was the stab wound in the abdominal cavity measuring 2" x 1 Omentum and about 12" long portion of small intestines was protruding out of this wound.
Death of Pancham was due to shock and haemorrhage resulting from cutting of small intestines, mesentery and blood vessels by some sharp edged pointed weapon.
The accused were examined by Dr. K. P. Rai and subsequently by Dr. K. A. Khan in jail.
The trail court and the High Court have relied upon the medical examination of the accused by Dr. Rai.
According to Dr. Rai, he found nine injuries on Mahabir Nar Singh, Paras Nath and Ram Naresh accused had four injuries each on their persons while Lalji had one injury.
The injuries on the persons of the accused were simple and had been caused by blunt weapon.
The defence version was that there was sugar can crop in the plots of Mahabir, Ram Naresh and Nar Singh accused.
Those fields used to be irrigated from the well of the accused which was close to the hut of Mahabir.
A water channel ran over the intervening ridge between the plots of Mahabir and Mand Lal.
On the day of occurrence, it is stated, Mahabir and Ram Naresh accused had started repairing the water channel by digging earth from a portion of Mahabir 's plot.
Part of the water channel had been repaired with that earth when Pancham, Nand Lal, Munshi, Jhuri, Bhaggan, Sheo and Sotan appeared on the scene.
Pancham and others were all armed at that time.
Bhaggan then demolished the water channel which had been repaired by Mahabir and Ram Naresh.
When Mahabir protested, the party of the complainant attacked them.
Mahabir and Ram Naresh then picked up agricultural implements and wielded the same in self defence.
The other appellants too arrived at the spot and they too wielded lathis in exercise of the right of private defence Ram Naresh accused came into, the witness box and gave evidence in support of the defence version.
The trail court on scrutiny of the evidence came to the conclusion that the witnesses on both sides had stated only the half truth and resorted to exaggeration, twisting and embellishment of the true account of the occurrence.
It was further held by the trail court that the well near the hut of Mahabir was being used for irrigation pur 370 poses, that the channel through which the water from this well used to be taken was along the disputed ridge and that on the day of occurrence the party of the accused was digging and putting earth on the ridge in order to repair and reconstruct the water channel.
The trial court in this context referred to the evidence of the investigating officer, according to whom earth had been taken by the party of the accused from a pit in Mahabir 's plot.
The trail court did not accept the evidence of the prosecution witnesses that Pancham and Nand Lal first went to the spot and thereafter Jhuri and Munshi arrived there and after that Bhaggan, Potan and Sheo appeared there.
In the view of the trail court, all the members of the complainant 's party reached the place of occurrence almost simultaneously.
The prosecution allegation that the other accused Were standing nearby when Mahabir and Budhdhu were digging the earth and repairing the water channel was not accepted.
In the opinion of the trial court, these persons were present at the hut which was only 15 or 20 paces from the ridge in question.
As regards the actual assault, the trial court came to the conclusion that no attack was made immediately by either party on the arrival of the complainant 's party.
At first there was remonstrance and counter remonstrance.
A fight thereafter ensued when the complainant 's party insisted that they would not allow the earth to be put on the disputed ridge and the party of the accused claimed that they must put the earth and reconstruct the water channel.
The intransigence of the parties, in the opinion of the trial court, led to a free fight and none of them could therefore plead the right of private defence.
The accused, other than Lalji, in the opinion of the trial court, were armed with lathis only.
The High Court in appeal held that the conclusions reached by the trial court were substantially correct and were based upon reasonable appreciation of evidence.
In appeal before us Mr. Nuruddin on behalf of the appellants has :argued that the present is not a case wherein the accused party can be said to be members of the unlawful assembly or wherein the injuries caused by Lalji to Pancham can be said to have been caused in prosecution of the common object of the accused appellants.
Although Mr. Rana on behalf of the State has controverted the above contention, we find considerable force in the same.
The trial court has found that Mahabir accused had been using water from the well near his hut for irrigation purposes and that he along with Ram Naresh was repairing the old water channel on the ridge when the party of the complainant came there and stopped Mahabir and Ram Naresh from further repairing the water channel.
The other accused who were present in the hut nearly.
at a distance of 15 or 20 paces from the ridge.
then came there.
There was remonstrance and counter remon strance which resulted in a fight.
The trial court has also found that there was no premeditation on the part of Lalji or any other accused to cause Pancham 's death and that the fight was a sudden affair and was the result of heated passion.
In the circumstances, in our opinion it cannot be said that the appellants who were present in front of 371 their hut formed an unlawful assembly.
An assembly of five or more persons is designated an unlawful assembly if the common object of the persons composing that assembly is to do any of the acts mentioned in the five clauses of section 141 Indian Penal Code.
According to the explanation to that section, an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly.
The, facts found by the trial court and the High Court and the circumstances of the case do not show that the appellants formed a common object to do any of the acts mentioned in the five clauses of section 141.
Reference has been made to clause (4) of section 141, according to which an assembly of five or more persons.
would be unlawful if the common object of the persons composing that assembly is to enforce any right or supposed right by means of criminal force or show of criminal force.
This clause cannot be of much avail because it cannot be said that the common object of the appellants was to enforce any right or supposed right by means of criminal force or show of criminal force.
As mentioned earlier, no party attacked the members of the opposite party at the commencement of the occurrence.
There was only at that stage remonstrance and counter, remonstrance.
Someone then started the fight and, according to, the trial court, it could not definitely be determined s to which of the two parties struck the first blow.
The circumstances of the case show that lathis were then wielded by the appellants, other than.
Lalji, not with a view to enforce any right or supposed right in respect of the water channel but because of the fact that a fight had, started and the complainant 's party was found to be armed.
As there was no premeditation and the occurrence was a sudden affair, each of the appellants, in our opinion, should be held to be liable for hi& individual act and not vicariously liable for the acts of others.
Lalji gave the spear blow in the abdomen of Pancham.
His conviction should, therefore, be maintained for the offence under section 304 Part I Indian Penal Code.
The sentence of rigorous imprisonment for a period of ten years awarded to Lalji for the injury caused to, Pancham cannot be held to be excessive.
As regards the other appellants, we find that they caused simple hurt with their lathis.
There is no doubt that one grievous injury was caused to Bhaggan with blunt weapon, but on the material on record it cannot be said as to who caused the said injury.
We would accordingly maintain the conviction of Mahabir, Nar Singh, Paras Nath and Ram Naresh for the offence under section 323 Indian Penal Code.
The conviction of Lalji for offences other than that under section 304 Part 1, and of the other four appellants for the offences other than that under section 323 ' Indian Penal Code is set aside.
Lalji is sentenced to undergo rigorous imprisonment for a period of ten years for the offence under section 304 Part 1.
As regards the other four appellants who have been convicted under section 323 Indian Penal Code, their sentence of imprisonment is reduced to the period already undergone.
V.P.S. Conviction and sentence modified.
| As a result of a fight between the members of the accused party and the party of the complainants the accused were tried and convicted for various offences.
The first.
appellant was convicted of the offence under section 304, Part 1, and of offences under Ss. 148, 323, 324 and 325 read with 14.
The appellants were convicted of the offences under Ss. 147 and 04, 323, 324 and 325 read with section 149.
The High Court, in appeal, while acquitting one of the accused, observed that the conclusion reached by the trial court were substantially correct and were based upon reasonable appreciation of the evidence.
In appeal to this Court, HELD : On the findings of the trial court neither party attacked the members of the opposite party at the commencement of the occurrence.
There was at that stage remonstrance and counter remonstrance only.
Someone then started ,a fight, and according to the trial court it could not definitely be determined as to which of the two parties struck the first blow.
There was no premeditation :and the occurrence was a sudden affair.
The circumstances of the case do not ,show that the appellants formed a common object to do any of the acts mentioned in the 5 clauses of section 141.
Section 141 (4), I.P ' C., could not be relied upon by the prosecution because, it could not be said that the common object of the accused was to enforce any right or supposed right by means of criminal force or show of criminal force.
The circumstances of the case show that the lathis were weilded by the accused not with a view to enforce any right or supposed right but because of the fact that a fight had started and the complainants ' party was found to be armed Therefore, it should be held that each accused was liable for his individual act and not vicariously liable for the acts of the others.
Hence, the first appellant could be convicted only of the offence under section 304, part 1, I.P.C. and his conviction for offences other than that should be set aside.
As regards the other appellants they caused simple hurt with their lathis and they could be convicted only of the offence under a. 323 I.P.C. One grievous injury was caused to a member of the complainants ' party but, on the material on record, it could not be said who caused that injury.
[371B H]
|
ivil Appeals Nos.
579 to 594 of 1975.
Appeals by special leave from the judgment and order dated the 11 October 1974 of the High Court at Gauhati in Civil Rule Nos. 252, 293, 305, 640 and 730 of 1976, and 24, 405, 507 & 510/71, 515 to 517 of 1972 and 165 166 of 1975.
N. M. Lahiri with D. N. Mukherjee, for the appellants.
(in all the appeals) N. M. Lahiri with D. N. Mukherjee, for respondents in CAs 579 & 583 586/75.
section Chaudhuri for respondents in CAs 588 to 590/75 D. N. Mukherjee & R. P. Agarwala, for respondents in CAs 587 590 N. M. Lahiri with D. N. Mukherjee & R. P. Agarwala for the respondents in CAs 591 592/75 N. M. Lahiri with D. N. Mukherjee for respondents in CAs 593 594 of 1975 Ex parte, for respondents in CAs 580 582, 593 594 of 1975 The Judgment of the Court was delivered by SARKARIA, J.
These appeals directed against a judgment of the High Court of Judicature at Gauhati raise a common question in regard 415 to the interpretation and constitutional validity of sub clause (a) of A clause (26) of section 10 of the Income tax Act, 1961 (for short, called the 1961 Act).
The appeals will be disposed by a common judgment.
R. Takin Roy Rymbai (respondent in Civil Appeal 579 of ,1975) belongs to Jaintia Scheduled Tribe and is a permanent resident of United Khasi Jaintia Hills Autonomous District under the Sixth Schedule of the Constitution within the State of Meghalaya.
He joined service under the Government of Assam in 1941.
In the previous year relevant to the assessment year 1970 71, he was posted at Shillong as Secretary to the Government of Assam.
The Assam Secretariat building and office, which constitute his place of work was within that quarter of the town which is included in Shillong Municipality and is not a part of the area described in para 20 of the Sixth Schedule.
C The Income tax officer took the view that the assessee 's income from salary in the relevant year arose in the non scheduled area and as such, is not covered by the exemption provided under section 10(26) (a) of the Act.
The assessee claimed that his income from salary had accrued or arisen within the specified area and, as such, he was entitled to the exemption.
In the alternative, he contended that this was not a valid condition for denying him the benefit of the exemption under section 10 (26).
The Income tax officer over ruled these contentions and completed the assessment subjecting the assessee 's salary to tax.
The assessee thereupon filed a petition under Article 226 of The Constitution in the High Court for impugning the assessment orders and the notices of demand for the assessment year 1970 1971, on the ground that sub clause (a) of section 10(26) of the Act is invalid and ultra vires Article 14 of the Constitution.
The writ petition was heard by a Bench of three learned Judges of the High Court, which held that this exemption clause has been enacted for the benefit of the Scheduled Tribes residing in specified areas.
The object of this exemption clause, according to the High Court, will be frustrated and made nugatory if the income of a member of the Scheduled Tribe residing in the specified areas, is made subject to tax merely because the source of such an income is outside that area.
In its view, the classification between members of the Scheduled Tribes having income which accrues or arises to them from any source from the Tribal area or the specified territories on the one hand, and the members of Scheduled Tribe having income which accrues or arises to them from any source outside the Tribal areas or specified territories on the other, is not based on any intelligible differentia; the classification is artificial and is not based on any substantial distinction having a rational nexus to the purpose of the law.
On the contrary, the condition contained in sub clause (a) would defeat the very object of the exemption clause in section 10 (26).
For this enunciation, the High Court has sought support from this Court 's observations in section K. Dutta, Income tax officer and ors.
vs Lawrence Singh Ingty ( 1 ) .
(1) [1968] 2 S.C.R.165.
416 On the above reasoning, the High Court has struck down the aforesaid sub clause (a) as violative of Article 14 of the Constitution, allowed the writ petition and quashed the impugned notices and the orders of assessment.
The Department has now come in appeal before us after obtaining special leave under Article 136 of the Constitution.
The provisions of section 10 of the 1961 Act are in the nature of exemptions.
The various clauses of this section indicate the incomes which are to be excluded from computation of the total Income of a person under this Act.
For a proper perspective, it will be useful to have a look at the historical background of this provision.
The Indian Income tax Act, 1922 did not contain any provision specifically exempting members of the Scheduled Tribes from the levy of income tax.
It was the Finance Act 1955 that first incorporated in the Income tax Act, 1922 provisions for exemption of the Tribal people of the eastern region from payment of the tax.
These provisions relating to such exemptions were further amended and recast by section 3 of the Finance Act 1958 as follows: "section 4(3) XXI.
Any income of a member of a Scheduled Tribe defined in clause (25) of Article 366 of the Constitution, residing in any area specified in Part A or Part of the Table appended to paragraph 20 of the Sixth Schedule , to the Constitution or in the Union Territories of Manipur and Tripura, provided that such member is not in service of Government.
" J The 1961 Act then re enacted this clause as under: "10 (26) In the case of a member of a Scheduled Tribe as deemed in clause (25) of Article 366 of the Constitution, residing in any area specified in Part A or Part of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution or in the Union Territories of Manipur and Tripura, who is not in the service of Government.
any income which accrues or arises to him.
(a) from any source in the area or Union Territories aforesaid, or (b) by wag of dividend or interest on securities.
" The State of Nagaland (Adaptation of Laws on Union Subjects) order 1965 added with effect from the 1st December 1963, the State of Nagaland also, to the areas, the Tribal people of which could claim this exemption.
The validity of the exclusion of the Government servants from the exemption given under section 10(26), as it stood before the amendment of 1970, came up for consideration before this Court in section K. Datta, Income tax officer and ors.
vs Lawrence Singh Ingty (supra).
It was held that the classification of Tribals into Government servants 417 and others for purposes of this exemption was violative of Article 14 of the Constitution and, as such, invalid.
Thereafter, Parliament passed the Taxation Laws (Amendment) Act 42 of 1970 whereby the words "who is not in the service of the Government" appearing in section 10(26), were deleted.
The North Eastern Areas (Reorganization) (Adaptation of Laws on Union Subjects), order 1974 amended this provision further with effect from January 25, 1972 so that it now reads as follows: "(26) in the case of a member of a Scheduled Tribe as defined in clause (25) of Article 366 of the Constitution, residing in any area supecified in Part A or Part of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution (or in the State of Nagaland) Manipur and Tripura or in the Union Territories of Arunachal Pradesh and Mizoram or in the areas covered by Notification No. TAD/R/35/50/109, dated the 23rd February 1951, issued by the Governor of Assam under the provisions to sub paragraph (3) of the said paragraph 20 (as it stood immediately before the commencement of the North Eastern Areas (Reorganization) Act 1971 (81 of 1971) any ' income which accrues or arises to him, (a) from any source in the (area, State or Union territories) aforesaid, or (b) by way of dividend or interest, on securities".
An analysis of this provision shows that in order to entitle a person to the exemption, three conditions must co exist: (i) He should be as member of a Scheduled Tribe as defined in Clause (25) of Article 366 of the Constitution; (ii) He should be residing in any area specified in Part A or Part of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution; or the State or Union Territories mentioned in this provision; (iii) The income in respect of which exemption is claimed must be an income which accrues or arises to him (a) from any source in the (area, State or Union territories) aforesaid, or.
(b) by way of dividend or interest, on securities".
An analysis of this provision shows that in order to entitle a person to the exemption, there conditions must co exist: (i) He should be a member of a Scheduled Tribe as defined in Clause (25) of Article 366 of the Constitution; (ii) He should be residing in any area specified in Part A or Part B of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution; or the State or Union Territories mentioned in this provision; (iii)The income in respect of which exemption is claimed must be an income which accrues or arises to him (a) from any source in the area, State or Union territories mentioned in the provision or (b) by way of dividend or interest, on securities".
Article 366(25) of the Constitution provides: "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the purposes of this Constitution.
" H Article 342 empowers the President with respect to any State or Union Territory, and where it is a State, after consultation with the 418 Governor thereof, by public notification, to specify Tribes or Tribal communities or parts of or groups within tribes of tribal communities which shall for the purpose of this Constitution be deemed to be Scheduled Tribes, as the case may be.
Clause (2) of this Article empowers the Parliament to exercise the some power by enacting a law The respondent belongs to Jaintia Scheduled Tribe which is one of the Scheduled Tribes notified under article 342(1).
The first condition for applicability of section 10(26) was thus indubitably satisfied.
Part II of the Table appended to paragraph 20 of the Sixth Schedule of the Constitution inter alia specifies the United Khasi Jaintia Hills District as one of the Tribal Areas.
According to the averments in the writ petition, the respondent is a permanent resident of the United Khasi Jaintia Hills autonomous District.
This allegation has not been denied by the other side.
Indeed, in the petition for special leave to appeal filed by the appellant the fact that he is a resident of a Tribal area specified in Paragraph 20 of the Sixth Schedule to the Constitution, is admitted.
The first two conditions necessary for claiming exemption under section 10(26) existed in the present case.
Whether on the facts of the case, the third condition embodied in sub clause (a) was satisfied or not, is a question which still remains to be determined.
The High Court has advisedly left it open.
The controversy has thus narrowed down into the legal issue: whether the classification made by sub clause (a) for the purpose of the exemption under section 10(26) between the income of a member of a Scheduled Tribe accruing or arising from any source in the area, State or Union Territories specified in the aforesaid Clause (26), and the income from a source outside such area, State or Union Territories is constitutionally valid? In answering this question in the negative, the High Court has propounded the proposition that the object of clause (26) of section 10 r is to grant a blanket exemption to members of Scheduled Tribes as a class residing in the specified areas, and that the condition contained in sub clause (a) is destructive of that object.
In propounding this proposition, the learned Judges seem to have relied on certain observations of this Court in Lawrence Singh Ingty 's case (supra) Mr. Lahiri appearing for the respondent, also, reiterates the reasoning of the High Court that the exemption was given to the Tribal people as a class, and not on the basis of their economic resources or sources of income.
In this connection Counsel has cited a few sentences from this Court 's judgment in Lawrence Singh Ingty 's case ,, (supra) .
With due respect to the learned Judges of the High Court, we are unable to accept this reasoning.
The matter now in controversy was, not even obliquely in issue before this Court in Lawrence Singh Ingty 's case.
Therein, the only question for decision was, whether the exclusion of the Government servants from the exemptions given in section 4(3) (XXI) of the Indian Income tax Act, 1922 and later on in section 10 (26) of the Income tax Act 1961.
was violative of Article 14 of the Constitution 419 Although sub clause (a) was very much there, its validity was not, even indirectly questioned.
The contention of the Revenue, therein, was that the exemption from income tax was given to members of certain Scheduled Tribes, due to their economic and social backwardness; that it was not possible to consider Government servants as socially and economically backward and hence the exemption was justly denied to the assessee, who was a Government servant having income from salary.
It was further urged by the Revenue that once a Tribal becomes a Government servant, he is lifted out of his social environment and assimmilated into forward sections of society and therefore he needs no more any crutch to lean on.
These arguments were found to be irrelevant and unsustainable.
In that context, the Court observed: "The exemption in question was not given to individuals either on the basis of their social status or economic resources.
It was given to a class.
Hence individuals as individuals do not come into the picture.
We fail to see in what manner the social status and economic resources of a government servant can be different from that of another holding a similar position in a corporation or that of a successful medical practitioner, lawyer architect, etc.
To over paint the picture of a government servant as the embodiment of all power and prestige would sound ironical.
Today his position in the society to put at the highest is no higher than that of others who in other walks of life have the same income.
For the purpose of valid classification what is required is not some imaginary difference but a reasonable and substantial distinction having regard to the purpose of the law.
" The sentences which have been underlined are the sheet anchor of the arguments advanced by Mr. Lahiri.
In our opinion, they cannot be torn out of the context and used for spelling out a proposition different from what was actually decided in that case.
The ratio of that decision is that within the members of the Scheduled Tribes residing in specified areas selected by the State for the purpose of exemption, the mini classification between individuals who were government servants deriving income from salary and those who were not such government servants, was not based on intelligible differentia.
Since there was no rational whatever for this differentiation, it was held that within the range of the selection, the government servants had been unfairly discriminated against lawyers, medical practitioners, private servants, businessmen, etc.
whose income was derived from non government sources, and that the exclusion of government servants from the exemption under section 10(26) was bad and unconstitutional.
This vice of discrimination from which section 10(26) was then suffering, was removed when the Amending Act 42 of 1970 exercised the obnoxious limb of the provision.
The decision in Lawrence Singh Ingty is thus no authority for the proposition that the exemption granted under section 10 (26) to the members of the Scheduled Tribes residing in the specified areas, as a class, 420 could not be validly subjected to the condition contained in subclause (a) of the provision.
While it is true that a taxation law, cannot claim immunity from the equality clause in Article 14 of the Constitution, and has to pass like any other law, the equality test of that Article, it must be remembered that the State has in view of the intrinsic complexity of fiscal adjustments of diverse elements, a considerably wide discretion in the matter of classification for taxation purposes.
Given legislative competence, the legislature has ample freedom to select and classify persons, districts, goods, properties, incomes and objects which it would tax, and which it would not tax.
So long as the classification made within this wide and flexible range by a taxing statute does not transgress the fundamental principles underlying the doctrine of equality, it is not vulnerable on the ground of discrimination merely because it taxes or exempts from tax some incomes or objects and not others Nor the mere fact that tax falls more heavily on some in the same category, is by itself a ground to render the law invalid.
It is only when within the range of its selection, the law operates unequally and cannot be justified on the basis of a valid classification, that there would be a violation of Article 14.
(See East India Tobacco Co. v State of Andhra Pradesh(l) Vivian joseph Ferriera vs Municipal Council of Greater Bombay;(2) Jaipur Hosiery Mills vs State of Rajasthan.(3) The validity or otherwise of the classification of income envisaged by sub clause (a), with reference to the source of income, for the purpose of the exemption under section 10(26) is to be judged in the light of the above principles.
Classification for purposes of taxation or for exempting from tax with reference to the source of the income is integral to the fundamental scheme of the Income tax Act.
Indeed, the entire warp and woof of the 1961 Act has been woven on this pattern.
Section 2(45) defines total income to mean "the total amount of income referred to in section 5 computed in the manner laid down in this Act".
Section 5 makes the chargeability of income dependent upon the locality of accrual or receipt of the income.
It defines the extent total income with reference to the residence of the assessee, and thus makes the incidence of taxation dependent upon whether the assessee is a resident in India.
It is the residence in India which entails liability to tax.
A non resident is not liable in India to get his income assessed, but if any part of his income accrues or arises whether directly or indirectly through any business connection in India or from any property in India, the same would be assessable.
An ordinary resident as defined in section 6, does not attract additional chargeability but being "not ordinarily resident" entitles a person to partial exemption from (1)[1963] I S.C.R. 404.
(2) [1972] I S.C.C. 70.
(3) 421 chargeability as a resident, to which exemption a person who is "ordinarily resident" is not entitled (see Kanga and Palkhivala Vol.
I Income tax 6th Edn.
p. 162).
The 1961 Act abounds in instances whereby certain sources of income have been exempted from tax, while others are assessable.
Section 10 of the 1961 Act, itself contains no less than 30 instances of such classification for the purpose of granting exemptions from tax.
This is so, in spite of the fact that another source of the same person 's income may be assessable.
A person may have agricultural income apart from salary or business income.
The income from the former source is not to be included in the total income of the assessee (vide section 10(1) ); while income from the latter source is not so exempted.
Again, interest realised from Scheduled banks on deposits upto a certain limit is exempt, while interest realised from non banking concerns is assessable.
Sections 80A to 80U further provide exemptions from tax to incomes derived from certain sources.
A business man 's income is assessable, but if it is from a newly established industrial undertaking or priority industry, to that extent, the same is exempted.
Section 80H provides for deductions in cases of new industrial undertakings employing displaced persons etc.
It is not necessary to multiply such instances.
Suffice it to say that classification of sources of income is integral to the basic scheme of the 1961 Act.
It is nobody 's case that the entire scheme of the Act is irrational and violative of Article 14 of the Constitution.
Such an extravagant contention has not been canvassed before us.
Thus the classification made by the aforesaid sub clause (a) for purposes of exemption is not unreal or unknown.
It conforms to a well recognised pattern.
It is based on intelligible differentia.
The object of this differentiation between income accruing or received from a source in the specified areas and the income accruing or received from a source outside such areas is to benefit not only the members of the Scheduled Tribes residing in the specified areas but also to benefit economically such areas.
If the contention advanced by Mr. Lahiri is accepted and a member of the Scheduled Tribe residing in a specified area is held entitled to the exemption irrespective of whether the source of his income lies within or outside such areas, it will lead to potentially mischievous results and evasion of tax by assessees who do not belong to the Scheduled Tribes.
All that a non tribal assessee in India need do would be to enter into a sham partnership with a member of the Scheduled Tribe residing in the specified area and ostensibly give him under the partnership a substantial share of the profits of the business while, in reality, pay the tribal only a nominal amount.
Moreover, but for the condition provided in sub clause (a), the exemption granted under section 10(26) is likely to operate unequally and cause inequality of treatment between individuals similarly situated.
A Tribal residing in the Scheduled areas earning large income from business located outside the specified areas, would be totally exempt while the non tribal whose source of income is a share in the same business would be taxed although with reference to the source of the income, both were similarly situated.
422 We are not persuaded to accept Mr. Lahiri 's argument that the making of the exemption conditional upon the classification envisaged by sub clause (a) would deter the members of the Scheduled Tribes from joining the mainstream of national life, or, would be inconsistent with the Directive Principle embodied in Article 46.
This Article contains a Directive Principle of State Policy for promotion of educational and economic interests of the weaker sections of the people, particularly the Scheduled Castes and Scheduled Tribes.
Its primary objective is to provide protection to the "weaker sections" of society.
Members of the Scheduled Tribes who are enterprising and resourceful enough to move out of the seclusion of the tribal areas and successfully compete with their Indian brethern outside those areas and rise to remunerative positions in service or business, cease to be "weaker sections".
In any case, the State is the best judge to formulate its policies and to decide how far and for what period and in what situations, the members of a particular Scheduled Tribe residing in a particular Tribal area should be afforded the protection and benefit in the matter of promotion of their educational and economic interests.
In view of what has been said above, we are of opinion that the learned Judges of the High Court were in error in holding that the classification contemplated by sub clause (a) of cl.
(26) of section 10 of the 1961 Act is artificial and is not based on any intelligible differentia.
We would therefore, reverse the judgment of the High Court and hold that the aforesaid sub cause (a) is constitutionally valid Before we part with this judgment, we may note that Mr. Lahiri made a detailed survey of the history of the Tribal areas of Assam and Scheduled Tribes residing in those 'autonomous ' areas.
Counsel also argued that virtually the source of the salary received by the assessee lay in the Tribal areas forming the State of Meghalaya, notwithstanding the fact that on account of the exigencies of service, the office of the assessee was located in those Wards of Shillong which are not a part of the tribal areas.
In our opinion, it is not necessary to go into this question which, as already noticed, still remains open and undetermined.
In the result we allow these appeals, but in the circumstances ofthe case, leave the parties to pay and bear their own costs.
P.B.R. Appeals allowed.
| The respondent landlord filed a petition under section 10 of the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act, 1960, for the eviction of the appellant tenant.
There was a compromise.
Since the tenant defaulted in payment of the rent thereafter, a registered notice terminating the tenancy issued by the landlord, came back with an endorsement that the appellant had refused to accept it.
Later.
the tenant was ordered to be evicted. 'The tenant 's appeal to the appellate court and then his revision application to the High Court were rejected.
Relying upon an earlier Division Bench decision of that Court, the High Court held that the Act provided a self contained procedure for eviction of tenants, and therefore, compliance with the provisions of section 106, Transfer of Property Act was unnecessary.
Dismissing the tenant 's appeal, ^ HELD: The High Court has correctly applied the principle laid down by a Division Bench of that court in Mohan & ors.
vs section Mohan Rao & Ors.
[1969] An.
P.R. Law Journal 351.
[553 E] Raval & Co. vs K. C. Ramacharndran & ors.
[19741 2 SCR 629 @ 634 and Shri Hern Chand vs Shrimali Sham Devi.
ILR 1955 Puni.
36, referred to.
In Mangilal vs Sugan Chand Rathi [AIR 1955 SC 101] this Court was considering an entirely different kind of provision of another Act in another State, and this case is distinguishable.
In the context of the remedy of ejectment by an ordinary civil suit it was held in that case that the usual notice of termination _ of tenancy under section 106.
Transfer of Property Act was necesary.
[553F & D] boiler [In cases where a party denies receipt of registered notice it is not always necessary to produce the postman who tried to effect service.
Denial of service by a party may be found to be incorrect from its own admissions or conduct.
The decision of the Bombay High Court in M. K. Patel vs Kundan Mal Chamanlal and that of the Calcutta High Court in Nirmal Bala Devi.
vs Provar Kumar Basu are reconcilable.
The Calcutta High Court applied a rebuttable presumption under section 114, Evidence Act, that the letter was received by the addressee in the ordinary course of blazons was refused by him because the presumption from the endorsement made upon it had not been repelled by any , evidence.
In the Bombay case, the presumption had been held to have been `J rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence.] [554C E]
|
Appeal No. 219 of 1967.
Appeal from the judgment and decree dated December 16, 1965 of the Andhra Pradesh High Court in C.C C. Appeal No. 24 of 1969.
M. C. Chagla, R. Y. Pillai and N. Nettar, for the appellants.
C. K. Daphtary, Rameshwar Nath and Swaranjit Sodhi, for respondent No. 1 (A).
V. A. Seyid Muhammad and section P. Nayar, for respondent No. 3.
7 3 7 The Judgment of the Court was delivered by Ray, J.
This is an appeal by certificate against the judge ment dated 15 December, 1965 of the Andhra Pradesh High Court dismissing the appellants ' suit and setting aside, the decree in favour of the appellant passed by the Additional Chief Judge, City Civil Court, Hyderabad on 18 October, 1958.
Shah Abdul Rahim a resident of the pity of Hyderabad died on 26 September, 1905 leaving behind him four sons Abdul Hai, Ghulam Nooruddin, Abdul Razak and Ghulam Ghouse Mohiuddin and two daughters Kamarunnissa Begum and Badiunnissa Begum.
Shah Abdul Rahim had large movable and immovable properties. 'Me sons and the daughters entered into two agreements in the month of July, 1908 and appointed arbitrators to partition the Matrooka properties of Syed Shah Abdul Rahim.
On 1 August, 1908 the arbitrators made an Award partitioning, the properties.
On 13 August, 190 8 there was a decree in the Darul Khaza Court, Hyderabad confirming the Award of 1 August, 1908.
The appellant filed the suit out of which the appeal arises on 24 July, 1941 for setting aside the decree dated 13 August, 1908 confirming the award and for partitioning certain Matrooka properties.
In 1942, the suit was dismissed.
An. appeal was preferred to the High Court of Hyderabad.
During the pendency of the appeal Abdul Hai died in 1950 and his legal representatives were brought on the record of the suit in the month of February, 1952.
The appeal filed in the year 1943 was disposed of by the High Court of Andhra Pradesh in April 1957 remanding the case to the City Civil Court, Hyderabad.
On 18 October, 1958 the Additional Chief Judge, City Civil Court, Hyderabad decreed the suit in favour of the appellant and cancelled the decree of the Darul Khaza Court dated 13 August, 1908.
On appeal the Andhra Pradesh High Court on 15 December, 1965 set aside the decree passed by the Additional Chief Judge.
The undisputed facts are these When Abdul Rahim died in 1905 Abdul Hai the eldest son was major.
The appellant was a minor.
There were two references to arbitration .
Before the arbitrators the appellant a minor was represented by his brother Ghulam Nooruddin as the guardian.
The parties to the arbitration agreements were Abdul Hai, Ghulam Nooruddin, Abdul Razak the appellant represented by his guardian Nooruddin, Qamarunnissa Begum and Badiunnisa Begum.
It will appear from the award that before the arbitrators there was no dispute ,between the parties and the arbitrators did not think it necessary to frame any issues.
Before the arbitrators the plaintiffs marked 738 with the letter 'F ' a plan showing properties attached to the Khankah and Dargah and those properties were market as Exhibits B 1 to B 10 and the plaintiffs relinquished their title to properties marked Exhibits B 1 to B 10 and further stated "neither at present nor in future will they have any share and right in the said property".
As to properties marked B 1 to B 10 the parties stated ,before the arbitrators that Abdul Hai was the Sajjada Nashin of the Dargah and was in possession of, the Dargah and khankah properties.
The award was made a rule of court within a short time upon a plaint filed by Nooruddin, Abdul Razak, the appellant represented by Nooruddin as the guardian and the two sisters Qamarunnisa Begum and Badiunnisa Begum.
The defendant was Abdul Hai.
The facts recited in the decree are these.
Syed Shah Nooruddin a pious person of Hyderabad had his Khankah situated at Nampalli.
The Dargah of the said pious man was also situated in the same locality.
After Syed Shah Nooruddin 's death his son in law, Abdur Rahim became the Sajjada of the Khankah and the Dargah Shariff.
The Sajjada had control over all the expenses ,of the Dargah and Khankah and the entire property attached to the Dargah and Khankah remained in possession of the Sajjadana,sheen and all the expenses of the Dargah and Khankah were met from the income.
After the death of Abdur Rahim, Abdul Hai became the Sajjadanasheen and was having control over the Dargah and Khankah.
Abdur Rahim left three adult sons and one minor son and also two adult daughters.
Apart from the property attached to the Dargah and Khankah Abdur Rahim left personal Matrooka properties.
There might have been a dispute between the parties regarding the partition of these properties.
But the parties settled the dispute by mutual consent and by agreement referred the matter to arbitration for the settlement of the dispute. 'The arbitrators made an award.
The decree recited that the properties marked with the letter 'F ' in the plan annexed to the award were Khankah and Dargah Shariff properties in the possession of the defendant Abdul Hai for meeting the expenses of the Khankah and no one has any right or claim over the property 'at present ' or 'in future.
The decree concluded by stating that the bargah and Khankah properties were not liable to partition and none ,of the plaintiffs "shall have any right or claim regarding the same".
The appellant impeached the award and the decree upon the award inter alia on the grounds that the award was void by reason of lack of lawful guardian on behalf of the appellant to protect ,and represent the rights and interests of the minor in the arbitration proceedings and in the proceedings resulting in the decree upon the award.
The appellant also claimed that the award and 739 the decree should be avoided because the properties marked Exhibits B 1 to B 10 were not Dargah and Khankah properties in fact and were treated in the award and the decree to be Dargah and Khankah on the wrongful representation of Abdul Hai.
The, appellant in the year 1938 discovered for the first time the true and correct facts that the same were not Khankah and Dargah properties and therefore claimed the same as divisible upon partition amongst the heirs of Abdul Rahim.
The trial Court held that the award and the decree thereon were obtained by fraud and the decree was to be set aside.
The reasoning given by the trial Court was that it was established one the evidence that Abdul Hai was in full possession and enjoyment of the whole of the property of Abdul Rahim including the property marked as Exhibits B 1 to B 10.
In the letter dated 13, August, 1938 Exhibit P 8 Abdul Hai denied that the property was waqf property belonging to the Dargah and asserted that it was.
owned and possessed by him and relinquished by his relatives.
The letter was held by the trial Court to indicate that Abdul Hai knew that the property was the property of his father which be inherited along with his brothers and sisters and in spite of such knowledge and belief he caused it to be represnted before the arbitrators that the property belonged to the Dargali and that the same was in his possession as Sajjadanasheen.
The trial Court further held that the appellant came to know the real state of affairs from the letter of, Abdul Hai dated 13 August, 1938 and therefore the suit was not barred by limitation.
The trial Court therefore passed a decree for cancellation of the decree passed upon the award and passed a preliminary decree for partition of ' the Matrooka properties including the properties marked as.
Exhibits B 1 to B 10 in the award.
In the High Court four questions were considered.
First, whether apart from the appellant any other party was a minor at the time of the arbitration agreement and whether there was a dispute which could be referred to arbitration.
Second, whether there was proof that at the time of the arbitration agreement and the award Abdul Hai made a fraudulent and false representation to his brothers and sisters and made Them believe that the properties belonging to the Sajjadanasheen were the properties of Dargah and Khankah which were not partible and by representation and fraud prevented the partition of those properties.
Third, whether the appellant had knowledge that Abdul Hai had claimed the properties as the ancestral properties of the Sajjadanasheen earlier than the time when the appellant said he had knowledge and whether the suit was barred by limitation.
Fourth, what would be the effect of the filing of the written statement by the defendant 740 No. 6 in the year 1958 and the omission of defendant No. 7 to Me any written statement to obtain partition of the properties in the event of the decree and the award being set aside The High Court held that the appellant was a minor but the ,other parties were not minors.
The High Court Held that the reference to the arbitration and the a ward thereon were void The High Court held that the decree of the Darul Khaza Court upon the award was not a nullity and the present suit should have been filed within three years of the appellant obtaining majority.
The High Court also held that the decree of the Darul Khaza Court was not obtained by fraud. 'Me High Court held that Abdul Hai ,asserted in the year 1927 that the Dargah and the Khankah properties were his personal properties and from that date Abdul Hai asserted his title adverse to the appellant and the other plaintiffs and the appellant and the other plaintiffs knew in 1927 of the adverse claim of Abdul Hai.
Therefore, the suit was barred by limitation.
The minority of the appellant is a fact found both by the trial ,Court and the High Court.
It is an admitted fact that the appellant 's guardian was his brother Nooruddin at the time of the arbitration proceedings and at the time of the decree on the award.
The brother is not a lawful guardian under the Mohammedan Law.
The legal guardians are the father, the executor appointed by the fathers will, the fathers father and the executor appointed by the will of the father 's father.
No other relation is entitled to the guardianship of the property of a minor as of right.
Neither the mother nor the brother is a lawful guardian though the father ,or the paternal grand father of the minor may appoint the mother, brother or any other person as executor or executrix.
In default ,of legal guardians a duty of appointing guardian for the protection and preservation of the minor 's property is of the court on proper application.
It was held by this Court in Mohd. Amin & Ors.
vs Vakil Ahmed & Ors.(1) relying on the dictum in Imambandi vs Mutsaddi(2) that where disputes arose relating to succession to the estate of a deceased Mohammedan between his three sons, one of whom was a minor, and other relations, and a deed of settlement embodying an agreement in regard to the distribution of the properties belonging to the estate was executed by and between the parties, the eldest son acting as guardian for and on behalf of the minor son the deed was not binding on the minor son as his brother was not his legal guardian and the deed was void not only qua the minor, but with regard to all the parties including those who were sui juris.
It is clear on the authority of this decision that the arbitration agreement and the award and the decree (1) ; (2) 45 T.A. 73 741 are all void in the present case by reason of lack of legal guardian of the appellant.
There is intrinsic evidence in the award, that the parties effected a settlement.
Counsel on behalf of the respondent relied on a copy of an application in the Court of the Darul Khaza in the proceedings for passing the decree upon the, award in support of the contention that the court appointed Nooruddin as the guardian of the appellant.
It is stated in the application that the defendant No. 3 (sic) meaning thereby plaintiff No. 3 the present appellant is a minor and Nooruddin is the real brother and the appellant is under the guardianship of Nooruddin.
The application was for permission to Me the suit.
There is no order for appointment of a guardian.
Further, the Court in appointing the guardian of property of a minor is guided by circumstances for the welfare of the minor.
There is no justification to hold that Nooruddin was either "the legal guardian or a guardian appointed by the Court.
The decree which was passed on the award appears on an examination of the pleadings and the decree itself that the parties proceeded to have the decree on the basis of the award without any contest as and by way of mutual settlement.
It will, appear from the decree that it was admitted by the parties that Abdul Hai was in possession of the Dargah and Khankah and that Abdul Hai alone was the Sajjadanasheen of the Khankah.
The relinquishment of property by Nooruddin on behalf of the minor is not binding on the minor.
There was no legal sanction 'behild such compromise in the arbitration and in the proceedings result ing in a decree upon the award.
There was no legal guardian.
The rights and interests of the minor were also not protected particularly when there was conflict of interest between the minor and Abdul Hai.
The arbitration agreement, the award and the decree of the Daral Khaza Court on the award are therefore void.
The High Court held that the appellants suit was barred by limitation by reason of knowledge of the appellant that Abdul Hai was in adverse possession since the year 1927 or 1928.
In regard to the properties which the appellant claimed in the suit as liable to partition, it is established that all parties proceeded on the basis that Exhibits B 1 to B 10 in the award were not Matrooka pro perties but Dargah and Khankah properties.
If, in fact, they are not Dargah and Khankah properties but Matrooka properties, these should be available to co owners for partition unless there are legal impediments.
The estate of a deceased Mohamedan devolves on his heirs at the moment of his ' death.
The heirs succeed to the estate as tenants in common in specific shares.
Where the heirs continue to hold the estate as tenants in common without 742 dividing it and on of them subsequently brings a suit for recovery of the share the period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or denial of title and Article 144 of Schedule 1 to the Limitation Act, 1908 would be the relevant Article.
Counsel on behalf of the respondent submitted that there were two impediments to the appellant 's claim for partition of the properties.
One was that the decree passed by the Court of Darul Khaza upon the award was not obtained by fraud and could not be set aside by reason of limitation.
The other was that the appellant came to know in the year 1927 that Abdul Hai adversely claimed properties as his own and therefore the appellant 's claim was barred by limitation.
The High Court held that the appellant was aware of the attachment of the personal and the Dargah and Khankah properties by the Government of the Nizam in the year 1927 as also release in the same year of the properties attached.
The High Court had that when parties had knowledge of the attachment of the properties it could not be postulated that they would have no knowledge of the contentions of Abdul Hai as to release of the Dargah and Khankah properties on the ground that those were not Dargah and Khankah but personal properties of Abdul Hai.
Knowledge of release of properties would not amount to ouster of the appellant from the property or of abandonment of rights.
The evidence of the appellant was that in 1350 Fasli corres ponding to the year 1941 the appellant came to know that a letter had been written by Abdul Hai to the Ecclesiastical Department of the Government of the Nizam in the year 1938 to the effect that the properties shown as Dargah and Khankah in the award F. and the decree were not Dargah and Khankar properties.
The appellant also came to know from the same letter that all the properties including those stated to be Dargah and Khankah properties in the award were attached by the Government of Nizam in the year 1927 and after enquiry by the Government of the Nizam all the properties were :released in the year 1927.
The appellant further came to know from that letter that Abdul Hai claimed the properties as his own.
Thereupon the appellant demanded from Abdul Hai partition of the property as Matrooka.
Abdul Hai asked the appellant to consult lawyer.
On the evidence it would be utterly wrong to speculate that the appellant knew of the contentions advanced in 1927 by Abdul Hai for the release of the properties by stating that they were not Dargah and Khankah properties.
There was no sub section at the.
743 time of the examination of the appellant that he was aware in,.
1927 of the contentions of Abdul Hai.
The High Court relied on Exhibit A 38 a letter dated 19 October, 1927 written by the,, appellant to Abdul Hai to impute knowledge of the attachment.
and release of the properties.
The appellant was never confronted with at letter.
it was never suggested to the appellant that the letter could be construed as attributing to the appellant the knowledge of any adverse claim made by Abdul Hai with" regard to the properties.
In that letter the appellant stated that.
be was indebted to the elder brother Abdul Hai for his kindness.
The appellant also stated that the expenditure incurred in connection with the litigation would be divided into four parts and the amount incurred on behalf of the appellant could be recovered from his account.
This letter dated 19 October, 1927 does not at all have the effect of establishing that the appellant had knowledge of any adverse claim of the appellant.
The appellant was never shown the letter to explain what litigation he referred to.
No inference can be drawn against the appellant without giving him an opportunity to have his say in that matter.
It is unfortunate that Abdul Hai died during the pendency of the suit and before the, trial.
Not only his oral evidence but also the correspondence that Abdul Hai had with the Government of the Nizam in the year 1927 did not find way into the record of the suit.
It would be totally misreading the appellant 's letter of the, year 1927 as impressing the appellant with the knowledge of ' ouster by Abdul Hai of the appellant from the properties forming the subject matter of the suit.
There are two letter of great importance.
One is dated 13 August, 1938 and marked Exhibit P 8 written by Abdul Hai to, the Director of Endowment, Government of Hyderabad and the other is dated 7 September, 1938 written by the Ecclesiastical Department of the Government of Hyderabad to the Secretary of the Endowments, Ecclesiastical Department of the Government of ' Hyderabad.
The letter of Abdul Hai was written in answer to an application made about that time to the Government of the Nizam by One Sheikh Abdur Rahim a tenant against whom Abdul Hai bad filed a suit for recovery of rent.
Abdur Rahim made an allegation that the properties in respect of which Abdur Hai filed a suit were Dargah and Khankah properties.
The complaint of Abdur Rahim was however dismissed and the matter was not allowed to be reopened on the strength of the orders of the Government recited by Abdul Hai in, his letter.
In answer Abdul Hai recorded these facts.
The Nizaim in the month of April, 1927 appointed the Secretary of the Ecclesiastical Department and the Commissioner of Police to enquire and report as to which of the properties were attached to the Dargah and which were per 744 sonal private properties.
Another Commission was appointed by the Nizam to enquire into the proper use of the endowed properties.
The Ecclesiastical Department by Letter dated 28 December, 1927 held that only the villages Debser and Sangvi were found to be under the Dargah.
All properties of the parties which had been attached by the Nizam were released by letter dated 3 January, 1928 excepting the two villages.
Abdul,Hai by letter dated 16 January, 1928 to the Government of the Nizam stated that the properties marked Exhibits B 1 to B 10 in the award and the decree of the Court of Darul Khaza did not belong to the Dargah and Khankah.
Abdul Hai further pointed out that the Nizam by a firman dated 11 November, 1927 had issued orders ,saying that according to the opinion of the Council the Govern ment 's supervision should be lifted from the 'maash ' referring thereby to the properties which had been attached by the Nizam and the same should be given over into the possession of Abdul 'Hai.
The other letter dated 5 January, 1939 from the Government ,of the Nizam stated that only two villages were held to be Dargah and the Government of the Nizam had made thorough enquiries and held that there was no other Dargah and Khankah properties and the question could not be re opened.
It is established in evidence that the properties which wore ,described as.
Dargah and Khankah properties before the arbitrators and the decree of the Darul Khaza Court are not Dargah and Khankah properties.
Abdul Hai obtained an adjudication and an order of the Government of the Nizam in the year 1927 that only two villages of Debser and Sangvi belonged to the Dargah and the rest were not Dargah and Khankah properties.
The appellant knew that there was litigation about the year 1927 about the properties.
It is not in evidence as to what that litigation was or which properties were concerned there with because the letter was not shown to the appellant.
Even if it be assumed that all parties treated the properties marked Exhibits B 1 to B 10 as Dargah properties upto the year 1927 and thereafter there was an adjudication on the representation of Abdul Hai that the properties were not Dargah and Khankah the parties would be entitled to tile same.
The only way in which the parties could lose their rights to the property would be on the finding that there was adverse possession or ouster.
The decree of the Darul Khaza Court will not be an obstacle to the claim of the appellant for partition, of the properties, because the properties are admittedly not Dargah and Khankah properties but Matrooka properties.
The arbitration proceedings were void by reason of lack of legal guardian of the appellant to enter into 745 a compromise.
The decree of the Darul Khaza Court is also invalid and not binding on the appellant for the same reason.
If all parties proceeded upon a basis that these were Dargah and Khankah properties and that basis is wiped out by the Government of the Nizam the, parties to their position as heirs to the Matrooka property.
The award and the decree by reason of evidence of facts discovered since the judgement and the decree of the Darul Khaza Court cannot be allowed to stand because the effect of the discovery of the facts is to make it "reasonably probable that the action will succeed.
In Birth vs Birch(1) the Court of Appeal held that a judgment will be set aside on the ground of fraud if evidence of facts discovered since the judgment raise a reasonable probability of the success of the action.
The principle can be stated in the words of Westbury, L.C. in Rolfe vs Gregory(2) "when the remedy is given on the ground of fraud, it is governed by this important principle, that the right of the party `defrauded is not affected by lapse of time, or generally speaking by anything done or omitted to be done so long as he, remains, without any fault of his own, in ignorance of the fraud that has been committed .
This decision was referred to by the Calcutta High Court in Biman Chandra Datta vs Promotha Nath Ghose(3) where the dictum of Westbury, L.C. was restated by holding that where a plaintiff had been kept from knowledge, by the defendant, of the circumstances constituting the fraud, the plaintiff could rely upon section 18 of the Limitation Act to escape from the bar of limitation.
In the present case, it is apparent that until the year 1927 the appellant and the other parties were clearly kept out of the knowledge of the true character of the properties.
Even after 1927 it cannot be said on the evidence on record that the appellant had any knowledge of the true character of the properties or ouster or adverse possession of Abdul Hai.
The reasons are that Abdul Hai never alleged against the appellant and the other parties openly that he was enjoying the properties to the total exclusion of the appellant and the other brothers.
Possession by one co owner is not by itself adverse to other co owners.
On the contrary, possession by one co owner is presumed to be the possession of all the co owners unless it is established that the possession of the co owner is in denial of title of co owners and the possession is in hostility to co owners by exclusion of them.
In the present there is no case to evidence to support this conclusion.
Ouster is an unequivocal act of assertion of title.
There has to be open denial of title to the parties who are entitled to it by excluding and ousting them.
(1) 1902 Probate Division 131 (2) [18 64] ; (3) I.L.R. 746 Section 18 of the Limitation Act, 1908 provides that when a person having a right to institute a suit has by means of fraud been kept from the knowledge of such right or of the title on which it is founded, the time limited for instituting a suit against the person guilty of the fraud shall be computed from the time when the fraud first became known to the person affected thereby.
In Rahim boy vs Turner(1) Lord Hobliouse said "When a man has committed a fraud and has got property thereby it is for him to show that the person injured by his fraud and suing to recover the property has had clear and definite knowledge of those facts which constitute the fraud, at a time which is too remote to allow him to bring the suit".
Therefore if the plaintiff desires to invoke the aid of section 18 of the Limitation Act he must establish that there has been fraud and that by means of such fraud he has been kept from the knowledge,of his right to sue or of the title whereon it is founded.
In the present case, he have with reasonable diligence discovered it.
There was active properties were Matrooka and not Dargah and Khankah.
When Abdul Hai got the properties released by reason of the decision of the Government of the Nizam in the year 1927 the properties became divisible among the appellant and his brothers and sisters.
The existence of the right of the appellant was kept concealed by Abdul Hai.
The appellant was not aware of the right nor could lie have with reasonable diligence discovered it.
There was active concealment by Abdul Hai of the fact that the properties were not Dargah and Khankah having full knowledge of the fact.
It was only in 1941 (1350 Fasli) that the appellant came to know of the Matrooka character of the properties.
It was then that the appellant also came to know that Abdul Hai had kept the character of properties concealed from the parties and entirely misstated and misrepresented the character of the properties by mis leadin the parties and obtaining by consent an award and a decree thereon without any contest.
The cause of action for partition of properties is said to be a perpetually recurring one" See Monsharam Chak ravarty & Ors.
vs Gonesh Chandra Chakravarty & Ors.
In Mohammedan Law the doctrine of partial partition is not applicable because the heirs are tenants in common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate.
The share,,, of heirs under Mohamedan Law are definite and known before actual partition.
Therefore on partition of properties belonging to a deceased Muslim there is division by metes and bounds in accordance with the specific share of each heir being already determined by the law.
(1) 20 I.A.1 (2) 17 C.W.N.521 747 In the present case the suit is for partition of properties which were by consent of parties treated as Dargah and Khankah but which were later discovered to be Matrooka properties in fact and therefore the declaration in the award and the decree on the award that those were Dargah and Khankah properties cannot stand and the entire partition is to be lie opened by reason of fraud in the earlier proceedings.
In the present case, the overwhelming evidence is that because of the representation of Abdul Hai that he was the Sajjadanasheen and the properties marked Exhibits B 1 to B 10 were Dargah and Khankah properties, that all the parties treated the properties as Dargah and Khankah before the arbitrators and in the decree upon the award.
The very fact that there was never any contest indicates that the compromise and settlement between the parties was on the basis that the properties were Dargah and Khankah.
It was absolutely within the knowledge of Abdul Hai as to what the true character of the properties was.
The other parties did not have any opportunity of knowing the same.
Abdul Hai knew the real character, concealed the true character and suggested a different character and thereby mislead all the parties.
Again, when Abdul Hai approached the Government of the Nizam and got the properties released by asserting that they were not Dargah and Khankah properties in the year 1927.
Abdul Hai did not inform the same to any of the parties.
The unmistakable intention of Abdul Hai all along was to enjoy the properties by stating these to be Dargah and Khankah.
When the parties came to know the real character of the properties even then Abdul Hai was not willing to have partition.
On these facts it is established that the fraud committed by Abdul Hai relates "to matters which prima facie would be a reason for setting the judgment aside".
That is the statement of law in Halsbury 's Laws of England, Third Edition, Volume 22, paragraph 1669 at page 790.
For these reasons we accept the appeal and set aside the judgment of the High Court and restore the judgment and decree of the trial court.
The appellant will be entitled to costs of this Court.
The parties will pay and bear their own costs in the High Court.
G.C Appeal allowed.
| Shah Abdul Rahim was Sajjadanasheen of a Dargah and Khankah in Hyderabad.
He had four sons and two daughters.
After his death in 1905 he was succeeded as Sajjadanasheen by his eldest son Abdul Hai Shah Abdur Rahim left Matrooka property apart from the properties appertaining to the Dargah and Khankah.
The matter of the partition of Matrooka properties was referred to arbitrators.
The appellant who was Abdur Rahim 's youngest son was a minor at the time and was represented in the arbitration proceeding by his brother Nooruddin.
The properties Exhibits B 1 to B 10 were acknowledged by the parties before arbitrators to be in the possession of Abdul Hai as Dargah and Khankah properties and any right or claim to them was renounced by Abdul Hai 's brothers and sisters.
The arbitrators gave their award on August 1, 1908 partitioning the properties.
On August 13, 1908 there was a decree in the Darul Khaza Court confirming the aforesaid award.
The properties B 1 to B 10 thereafter remained in the possession of Abdul Hai.
In 1927 Abdul Hai got an adjudication from the Nizam 's Government that the Dargah and Khankah properties consisted only of two villages and that properties B 1 to B 10 were not Dargah and Khankah properties.
In 1938 Abdul Hai wrote a letter to the Nizam 's government again asserting that properties B 1 to B 10 were his personal properties.
The appellant filed a suit on 24th July 1941 for setting aside the decree dated.
August 13, 1908, passed by the Darul Khaza Court and for partition of the Matrooka properties left by his father including properties B 1 to B 10.
He impeached the award and the decree on the ground that he was not represented by 1 lawful guardian.
He claimed that the award and decree should be avoided because they were based on the wrongful representation of Abdul Hai that they were Dargah and Khankah properties.
The trial court decreed the suit holding : (1) that the award and decree in question were obtained by fraud; (2) that the letter written by Abdul Hai in 1938 showed that he was aware of the Matrooka character of the properties but kept this fact from his brothers and sisters; (3) that the appellant 73 5 came to know the facts from the said letter of 1938 and the suit was not therefore barred by limitation.
The High Court in appeal held (1) that the appellant was a minor and therefore reference to the arbitration and the award thereon were void; (2) that the decree passed by the Damlkhaza Court was not a nullity since the appellant did not file his suit within three years after attaining majority; (3) that the decree was not obtained by fraud; (4) that Abdul Hai asserted in 1927 that the properties in question were his personal properties and this assertion of title adverse to the appellant and his brothers and sisters became known to them in 1927 and for this reason also the suit was barred by limitation.
in ' appeal by certificate to this Court, HELD: The appeal must be allowed, (i) The minority of the appellant was a fact found by the trial court and the High Court.
The appellant 's brother who represented him in the arbitration and court proceedings was not a legal guardian, nor was he appointed by the Court.
The relinquishment of property by Nooruddin on behalf of the minor was not binding on the minor whose interests were not protected.
The arbitration proceedings, the award and the decree of the Darul Khaza Court on the award were therefore void.
[740 D, 741 E F] Mohd. Amin & Ors.
vs Vakil Ahmed & Ors, ; and Imambandi vs Mutsaddi, 45 I.A. 73, referred to. ' (ii) The estate ' of a deceased Mohammedan devolves on his heirs at the moment of his death.
The heirs succeed to the estate as tenants in common in specific shares.
When the heirs continue to hold the estate as tenants in common without dividing it and one of them subsequently brings a suit for recovery of the share the period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or denial of title and article 114 of Sch. 1 to the Limitation Act 1908 would be the relevant Article.
[741 H, 742 A] (iii) The cause of action for partition of properties is a perpetually recurring one '.
In Mohammedan Law the doctrine of partial partition is not applicable because the heirs are tenants in common and the heirs of the deceased Muslim succeed to the definite fraction of every part of his estate.
In the present case the suit was for partition of properties which were by consent of parties treated as Dargah and Khankah but which were later discovered to be Matrooka properties in fact and therefore the declaration in the award and the decree on the award that those were Dargah and Khankah properties could not stand and the entire partition had to be reopened by reason of fraud in the earlier proceedings.
[746 G 747 B] Monsharam Chakravarty & Ors.
vs Gonesh Chandra Chakravarty & Ors., , referred to.
(iv) The decree of the Darul Khaza Court could not be an obstacle to, the claim of the appellant for partition of the properties, because the properties were admittedly not Dargah and Khankah properties but Matrooka Properties.
If all parties proceeded upon a basis that these , were Dargah and Khankah properties and that basis is wiped out by the adjudication by the Government of the Nizam, the parties are restored to their position as heirs to the Matrooka property.
The award and the decree by reason of evidence of facts discovered since the judgment and the decree of the Darul Khaza Court could not be allowed to stand because the effect of the discovery of the facts was to make it "reason ably probable that the action will succeed".
[744 H 745 B] 1100Sup CI/72 73 6 Birch vs Birch, [1902] Probate Division 131, referred to.
(v) When a plaintiff has been kept from knowledge by the dependent of the circumstances constituting the fraud, the plaintiff can rely upon section 18 of the Limitation Act to escape from the bar of limitation.
When Abdul Hai got the properties released by reason of the decision of the Government of the Nizam in the year 1927 the properties became divisible among the appellant and his brothers and sisters.
The existence of the right of the appellant was kept concealed by Abdul Hai.
The appellant was not aware of the right nor could he have with reasonable diligence discovered it.
There was active concealment by Abdul Hai of the fact that the properties were not Dargah and Khankah having full knowledge of the fact.
It was only in 1941 that the appellant came to know of the Matrooka character of the properties.
[745 E, 746 E] Rolfe vs Gregory, ; , Boman Chandra Datta vs Promotha Nath Ghose, L.L.R. and Rahimboy vs Turner, 20 I.A. 1. referred to.
(vi) On the facts of the case it was established that the fraud committed by Abdul Hai relates "to matters which prima facie would be a reason for setting the judgment aside".
[747 E F] Halsbury 's Laws of England, Third Edition, Vol. 22, para 1669 at p. 790.
referred to.
(vii) The plea of adverse possession must also fail.
It was apparent that until the year 1927 the appellant and the other parties were already kept out of the knowledge of the true character of the properties.
Even after 1927 it could not be said on the evidence On record that the appellant had any knowledge of the true character of the properties or of ouster or adverse possession of Abdul Hai.
Possession by one co owner is not by itself adverse to other co owners.
On the contrary possession by one co owner is presumed to be the possession of all the co owners unless it is established that the possession of the co owner is in denial of title of co oweners and the possession is in hostility to co owners by exclusion of them.
In the present case there was no evidence to support this conclusion.
Ouster is an unequivocal act of assertion of title.
There has to be open denial of title to the parties who are entitled to it by excluding and ousting them.
[745 F H]
|
etitions Nos.
503,516, 532, 534, 535, 537, 538 39, 541 45, 543 45, 553,554, 555, 565, 574, 586, 556 57, 592 94, 604 06, 676, 600, 533, 1414 and 1423 of 1983.
(Under article 32 of the Constitution of India) WITH Special Leave Petition (Criminal) No. 196 of 1983 From the Judgment and Order dated the 6th December, 1982 of the Allahabad High Court in Criminal Appeal No. 1357/82.
AND Writ Petition Nos. 286, 345 48, 428, 429 of 1983.
(Under article 32 of the constitution of India) Advocates For The Petitioners N.M. Ghatate and Mr. S.V. Deshpande in WP.
R.C. Kohli, A.C. in WPs.
516 and 586.
R.K. Garg, R. Sathish and V.K. Pandita, in WPs.
534 and 565.
A.N. Bardaiyar and B.B. Sinha in WP.
A.K. Srivastava, A.C. in WP.
O.P. Verma in WPs.
538 539.
Mrs. K.Hingarani in WPs.
541 42.
B.S. Varshney and C.L. Sahu in WPs.
543 45.
L.K. Gupta in WP.
Raju Ramachandran in WP.555. 9 Miss Kailash Mehta and Mrs. Naresh Bakshi in WPs.
5652 600.
Arun Madan, A.C. in WPs.
556 557.
V.D. Khanna in WPs.
604 06.
S.N. Mehta, A.C. in WP.676.
Anil Kumar Gupta and Brij Bhushan in WP.
D.K. Garg in WP.
1414, 1697 98 and 286.
Aruneshwar Gupta in WP.
S.K.Mehta, P.N. Puri and M.K. Dua in S.L.P. No. 196/83.
Solmon Khurshid and L.R. Singh in WPs.
345 48.
Miss Lalita Kohli, A.C. in WP.
Petitioner in Person in WP.
Nemo in WPs.
534,574,529 94 and 428.
Advocates For the Respondents: K.Parasaran Soliciter General, for State of Maharashtra and U.O.I. K.G.
Bhagat Additional Soliciter General, N.C. Talukdar, Anil Dev Singh, C.V. Subba Rao and Miss A. Subhashini M.N. Shorff for State of Maharashtra.
A.V. Rangam for State of Tamil Nadu.
Swaraj Kaushal for State of Karnatka.
Harbans Singh and D.D. Sharma for State of Punjab.
R.N. Poddar for State of Haryana.
Dalveer Bhandari for State of U.P. B.B. Singh for State of Bihar.
10 Ram Jethmalani for State of Karnatka and for interveners.
Miss Rani Jethmalani and Shrikant Bhat, in WP.
Nos. 532, 534 and 535 of 1983.
Chandrakant Lecturer in the Department of Forensic Medicine, All India Institute of Medical Sciences, intervenor in person in WP.
No. 503.
The Judgment of the Court was delivered by CHANDARCHUD, C.J.
: In this batch of Writ Petitions, the petitioners were sentenced to death for the offence of murder under section 302 of the Penal Code.
They have nothing in common except that they committed murders and have been sentenced to death.
The sentence of death imposed upon them has become final in the sense that the Special Leave Petitions, Appeals, Review Petitions and Mercy Petitions filed by them have been dismissed, some of these more than once.
The main question which has been raised by the petitioners in these writ petitions relates to the validity of the mode of execution of the death sentence.
Section 354(5) of the Code of Criminal Procedure provides that: When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead The petitioners challenge the constitutional validity of this provision on the ground that hanging a convict by rope is a cruel and barbarous method of executing a death sentence, which is violative of Article 21 of the Constitution That article provides that: No person shall be deprived of his life or personal liberty except according to procedure established by law.
The validity of death sentence which Section 302 prescribes for the offence of murder was upheld by this Court in Bachan Singh.
11 The ratio of that decision is that the normal sentence for murder is life imprisonment and that the sentence of death can be imposed in a very exceptional class of cases, described in that judgment as the 'rarest of rare cases '.
Which kind of cases would precisely fall within that category is in the very nature of things difficult to define and even to describe.
But, all the same, a studied attempt was made by this Court in Machhi Singh to identify, though not to crystalize, the area of those rarest of rare cases in which death sentence can justifiably be imposed.
Shri Garg 's criticism of that judgment that it virtually overrules Bachan Singh and Jagmohan Singh is wide off the mark.
In Machhi Singh, the learned Judges have but formulated broad guidelines to assist the Courts in deciding the vexed question as to whether the death sentence is at all called for.
Evidently, the judgment does not enlarge the scope of the rule in Bachan Singh by broadening the narrow field of cases which call for the death sentence.
But, Machhi Singh is by the way.
The validity of the death sentence for the offence of murder having been upheld by this Court after a careful and prolonged discussion, there is no justification for reopening that question, though such a suggestion was made half heartedly before us, towards the conclusion of the arguments.
The question that, in the circumstances mentioned in Bachan Singh, it is permissible to impose the sentence of death must be treated as concluded and not any longer open to argument.
There has to be finality to litigation, criminal as much as civil, if law is not to lose its credibility.
No one of course can question that law is a dynamic science, the social utility of which consists in its ability to keep abreast of the emerging trends in social and scientific advance and its willingness to readjust its postulates in order to accommodate those trends.
Life is not static.
The purpose of law is to serve the needs of life.
Therefore law cannot be static.
But, that is not to say that Judgments rendered by this Court after a full debate should be reconsidered every now and then their authority doubted or diluted.
That would be doing disservice to law since certainty over a reasonably foreseeable period is the hallmark of law.
The learned Solicitor General has raised a preliminary objection to these Writ Petitions on the ground that the question 12 which is sought to be argued by the petitioners is concluded by the judgment rendered by a Constitution Bench of this Court in Bachan Singh.
It is urged that since the question is not res integra, it is not open to the petitioners to raise it, nor indeed any reason or justification for this Court to entertain it.
Learned counsel for the petitioners, led by Shri R.K. Garg, answer this objection by contending that the only question which arose in Bachan Singh was whether it is constitutionally permissible to prescribe the sentence of death.
It is urged on behalf of the petitioners that the question as regards the validity of section 354(5) of the Code of Criminal Procedure was neither argued in Bachan Singh nor considered by the Court.
The objection taken by the learned Solicitor General is not without substance but for reasons which we will presently indicate, we do not propose to accept it.
At page 196 of the Report in Bachan Singh,(1) the main arguments of the 'Abolitionists ' which were, "substantially adopted" by counsel for the petitioners therein are reproduced in clauses (a) (b) and (c).
Under Clause (c), the argument is reproduced thus: "Execution by whatever means and for whatever offence is cruel, inhuman and degrading punishment", by which is obviously meant 'execution of death sentence '.
The argument mentioned in clause (a) to the effect that the death penalty is unconstitutional because it is irreversible is considered at pages 196 and 197 of the Report.
The argument mentioned in clause (b) as to whether death penalty serves any penological purpose at all is considered at page 197.
Though the arguments mentioned in clauses (a) and (b) at page 196 of the Report have been specifically considered under separate heads as stated above, the argument mentioned in clause (c) at page 196 relating to the execution of death sentence has not been considered under a separate head.
The discussion of the, argument whether death penalty, serves any penological purpose, is concluded at the end of the third line on page 222.
The heading "Regarding (c)" should have appeared in the Report after the said third line and before the fresh paragraph which beings thus: "We will now consider the issue whether the impugned limb of the provision in section 302, Penal Code, contravenes Article 21 of the Constitution".
That this should have been so is clear from the fact that after considering the particular argument at pages 222 and 223, Justice Sarkaria who spoke for the majority concludes: 13 "Under the successive Criminal Procedure Code which have been in force for about 100 years, a sentence of death is to be carried out by hanging.
In view of the aforesaid constitutional postulates, by no stretch of imagination can it be said that the death penalty under Section 302, Penal Code, either per se or because of its execution by hanging, constitutes an unreasonable, cruel or unusual punishment.
By reason of the same constitutional postulates, it cannot be said that the framers of the Constitution considered death sentence for murder or the prescribed traditional mode of its execution as a degrading punishment which would defile "the dignity of the individual" within the contemplation of the Preamble to the Constitution".
Bhagwati, J., who dissented from the majority considered the question of the constitutional validity of the death sentence, both from the substantive and the procedural points of view.
At page 286, the learned Judge says that "the worst time for most of the condemned prisoners would be the last few hours when all certainty is gone and the moment of death is known".
After extracting quotation from Dostoyevsky and Canns which bear upon the execution of death sentence, the learned Judge observes: "There can be no stronger words to describe the utter depravity and inhumanity of death sentence".
After making this observation Bhagwati, J., proceeds thus: "The physical pain and suffering which the execution of the sentence of death involves is also no less cruel and inhuman.
In India, the method of execution followed is hanging by the rope.
Electrocution or application of lethal gas has not yet taken its place as in some of the western countries.
It is therefore with reference to execution by hanging that I must consider whether the sentence of death is barbaric and inhuman as entailing physical pain and agony.
It is no doubt true that the Royal Commission on Capital Punishment 1949 53 found that hanging is the most humane method of execution and so also in Ichikawa vs Japan, the Japanese Supreme Court held that execution by hanging does not correspond to cruel punishment ' inhibited by Article 36 of the Japanese Constitution.
But whether amongst all the 14 methods of execution, hanging is the most humane or in view of the Japanese Supreme Court, hanging is not cruel punishment within the meaning of Article 36, one thing is clear that hanging is undoubtedly accompanied by intense physical torture and pain." (emphasis ours).
Thereafter, the learned Judge refers to the description of the method of hanging given by warden Duffy of San Quentin, a high security prison in America and the description given in 1927 by a surgeon who witnesses a double execution and records his conclusion by saying that the passages extracted by him established beyond doubt that "the execution of sentence of death by hanging does involve intense physical pain and suffering, through it may be regarded by some as more humane than electrocution or application of lethal gas." This discussion will show that both the majority and the minority in Bachan Singh considered the question of the validity of the death sentence from the procedural aspect also, with special reference to the method of hanging prescribed by law for executing the death sentence.
While upholding the validity of death sentence, the majority did not overlook and, in fact, took into consideration the circumstance that the mode prescribed by the Criminal Procedure Code for executing the death sentence is hanging.
On the other hand, while striking down the validity of death sentence Bhagwati, J., was influenced by the consideration that the mode of hanging prescribed by law for executing the death sentences was itself cruel and barbarous.
Though this is the true position, the reason why we are not inclined to uphold the preliminary objection taken by the learned Solicitor General is that the question as regards the constitutional validity of section 354 (5) of the Code of Criminal Procedure was neither raised squarely by the petitioners in Bachan Singh nor considered directly by the Court.
If we may so put it, the question as regards the validity of section 354 (2) of the Code was not directly and substantially in issue in Bachan Singh.
The questions which arose for consideration in that case are formulated in the majority judgment at page 169 as Questions I and II.
The majority referred to the mode of execution of the death sentence only incidentally.
The question whether the particular mode of executing the death sentence prescribed by section 354 (5) of the Code violates the provisions of Article 21 was not considered specifi 15 cally by the majority as in independent issue.
Considering the judgment of Bhagwati, J., also as a whole it would appear that the principal reason for which the learned Judge struck down the death sentence is its irrevocability, its arbitrariness and its lack of purpose.
One of us was a party to the decision in Bachan Singh and if recollections do not fail so soon and are permissible aids to the understanding of a decision it would not be right to say that the question as regards the constitutional validity of section 354 (5) of the Code was either directly put in issue in that case or was argued upon or was considered by the Court as an independent reason bearing upon the validity of the death sentence.
The question which the petitioners have raised in these writ petitions is important not only from the legal and constitutional point of view but also from the sociological point of view.
It will not be proper to side track that question and refuse to examine it fully because of the incidental consideration which it received in Bachan Singh.
Accordingly, we reject the preliminary objection raised by the learned Solicitor General and proceed to examine the question raised by the petitioners on its own merits, on the basis that the question is still open to argument.
The petitioners, who have been sentenced to death for acts of outrageous brutality, have presented their case with an air of injured innocence.
Their claim is that no matter what pain and suffering they may have inflicted upon their victims and their families, no pain or suffering whatsoever shall be caused to them while executing the death sentence.
It is urged on their behalf by Shri R.K. Garg and the other learned counsel that even if it may be lawful to impose the death sentence in an exceptional class of cases, it is impermissible to execute that sentence even in those cases, since it is inhuman and cruel to take human life under any circumstances, even under a decree of a Court.
That is the fundamental premise of the petitioners ' contention.
Secondly it is urged that the method prescribed by section 354(5) of the Code for executing the death sentence is inhuman, barbarous and degrading and therefore that method cannot be employed for executing the death sentence.
It is the constitutional obligation of the State to provide for a humane and dignified mode of executing the death sentence, which will not involve torture or cruelty of any kind.
It is urged that if the State fails to discharge that obligation, no death sentence can be executed, howsoever justifiably it may have been imposed.
The Code of Criminal Procedure prescribes only one method of executing the 16 death sentence, namely, by hanging and if that method violates the mandate of Article 21, the sentence must remain unexecuted, since the Court cannot substitute any other method of execution for the only method prescribed and envisaged by law.
Finally, it is argued that the burden is on the State to prove that the method of execution of the death sentence prescribed by section 354(5) of the Code is a humane and civilized method and that it does not involve pain, cruelty or degradation of any kind.
This is so because, the burden to establish that any particular act, challenged as unconstitutional, is just and fair always lies on the State.
Therefore, it is not for the petitioners to show that any other method of executing the death sentence would be less painful, cruel or degrading.
According to the petitioners, the State must fail if it does not discharge the burden which lies heavily upon it.
The petitions cannot be dismissed on the ground that the petitioners have failed to establish that the method prescribed by section 354(5) involves unnecessary pain, torture or cruelty; or that other methods of executing the death sentence are either not cruel or painful or are less cruel and painful than the method prescribed by section 354(5) of the Code.
These arguments require careful consideration, uninfluenced by the circumstance that the demand for civilized, humane and painless treatment is made by those who have been found guilty of subjecting their victims to uncivilized and inhuman acts involving great torture and suffering.
The retribution involved in the theory "Tooth for tooth ' and 'an eye for eye ' has no place in the scheme of civilized jurisprudence and we cannot turn a deaf ear to the petitioners ' claim for justice on the ground that the enormity of their crimes has resulted in grave injustice to the victims of these crime.
We are concerned to ensure due compliance with constitutional mandates, no matter the occasion.
If it were not so, smugglers who are detained under the laws of detention shall have to be denied the protection of Article 22 of the Constitution on the ground that they are guilty of acts which sabotage the economy of the country.
Justice has to be done dispassionately in accordance with the constitutional attitudes whether it is a murderer or a smuggler who asks for it.
Law cannot demand its pound of flesh.
At one stage we were inclined to decide the main question argued by the petitioners without considering the rival contentions as to the burden of proof.
We thought that whether the burden lies on the petitioners to show that the method prescribed by section 354(5) of the Code is constitutionally impermissible or whether the 17 burden lies on the State to prove that the particular method is permissible within the frame work of the Constitution, we should pronounce upon the legality of that method on the basis of the data which has been placed before us by the both sides.
The question of burden of proof ceases to have the same importance when the entire evidence is before the Court, each side having placed before it such material as it considers necessary to support its case.
But then, the fact that parties have produced their respective data before the Court does not absolve the Court from considering the question whether, on the basis of the entire material before it, the burden can be said to have been discharged by the party on whom it lies.
Besides, counsel engaged themselves into quite some argument over the question of burden of proof and since that question is of importance and arises frequently, it is just as well that we decide it.
We propose to decide that question before adverting to the other contentions raised on behalf of the petitioners.
It is urged by Shri Jethmalani who appears on behalf of the Government of Karnataka, as also on behalf of the Bar Council of India who were allowed to intervene in these proceedings, that every statute carries with it a strong presumption of constitutionality and a heavy burden lies upon those who challenge that statute to displace that presumption.
In support of this submission, the learned counsel relies principally on the decision of a seven Judge Bench of this Court in Madhu Limaye vs Sub Divisional Magistrate, Monghyr, which, he says, was not noticed in Bachan Singh.
The learned Attorney General (the Solicitor General became the Attorney General during the hearing of these petitions) also argued that the decisions of this Court have almost uniformly taken the view that the burden to displace the presumption of constitutionality lies on the person who challenges the statute as unconstitutional.
Most of the important decisions which have a bearing on the question of burden of proof have been noticed in the majority and minority judgments in Bachan Singh.
Sarkaria J, speaking for the majority, has summed up the position thus: "With regard to onus, no hard and fast rule of universal application in all situations, can be deduced from the decided cases.
In some decisions such as 18 Saghir Ahmed vs State of Uttar Pradesh and Khyerbari Tea Co. vs State of Assam & Ors it was laid down by this Court that if the writ petitioner succeeds in showing that the impugned law ex facie abridges or transgresses the rights coming under any of the sub clause of clause (1) of Article 19, the onus shifts on the respondent State to show that the legislation comes within the permissible limits imposed by any of the clauses (2) to (6) as may be applicable to the case, and, also to place material before the court in support of that contention.
If the State does nothing in that respect, it is not for the petitioner to prove negatively that it is not covered by any of the permissive clauses.
"A contrary trend, however, is discernible in the recent decisions of this Court, which start with the initial presumption in favour of the constitutionality of the statute and throw the burden of rebutting that presumption on the party who challenges its constitutionality on the ground of Art 19.
" As an instance of the contrary trend, Sarkaria, J., has cited the judgment of Krishna Iyer, J., in B. Banerji vs Anita Pan, which reiterates the ratio in Ram Krishna Dalmia to the following effect: ". there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles"; and ". . that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds.
" 19 Referring to the judgment of this Court in R.M.D. Chamarbaugwala and to the first proposition in Chapter III of Seervai 's Constitutional Law (Page 54 2nd Edition; page 118, 3rd Edition) Krishna Iyer.
J. observed: "We have to remember the comity of the constitutional instrumentalities and raise the presumption that the legislature understands and appreciates the needs of the people and is largely aware of the frontiers of and limitations upon its power.
Some Courts have gone to the extent of holding that there is a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; and to doubt the constitutionality of a law is to resolve it in favour of its validity.
" Sarkaria, J., has finally referred to the Seven Judge Bench decision of this Court in Pathumma vs State of Kerala, in while Fazal Ali, J., speaking for himself, Beg, C.J., Krishna Iyer and Jaswant Singh.
JJ., declared the law in the following terms: "It is obvious that the Legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution to bring about social reforms for the upliftment of the backward and the weaker sections of the society and for the improvement of the lot of poor people.
The Court will, therefore, interfere in this process only when the statute is clearly violative of the right conferred on the citizen under Part III of the Constitution or when the Act is beyond the legislative competence of the legislature or such other grounds.
It is for this reason that the Courts have recognised that there is always a presumption in favour of the constitutionality of a statute and the onus to prove its invalidity lies on the party which assails the same.
In the case of Mohd. Hanif Quareshi vs The State of Bihar, while adverting to this aspect Das, C J. 20 as he then was, speaking for the Court observed as follows: "The pronouncements of this Court further establish, amongst other things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles.
The Courts, it is accepted, must presume that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds.
" As we have said at the outset, these decisions have been discussed in the majority and minority judgments in Bachan Singh.
The decision of a Bench of seven Judges on which Shri Jethmalani has placed strong reliance is the one reported in Madhu Limaye.
The question which arose for consideration in that case was whether the provisions of section 144 and Chapter VIII of the Code of Criminal Procedure could be said to be in the interests of public order in so far as the right of freedom of speech and expression, the right of assembly, and the right to form associations and unions are concerned and in the interests of the general public in so far as they curtailed the freedom of movement throughout the territory of India.
The petitioners and the interveners therein invoked the American doctrine of preferred position for the fundamental rights, particularly the right to freedom of speech and expression.
Hidayatullah, C.J., who spoke for six learned Judges (Bhargava.
J. dissenting on another point) reviewed the preferred position doctrine and concluded that it did not any longer have the support of the Supreme Court of the United States and therefore.
in America, "unreasonableness of the law has to be established", The learned Chief Justice proceeded to say: "In this Court the preferred position doctrine has never found ground although vague expressions such as 'the most cherished rights ', 'the inviolable freedoms ', sometimes occur.
But this is not to say that any one Fundamental Right is superior to the other or that 21 Article 19 contains a hierarchy.
Pre constitution laws are not to be regarded as unconstitutional.
We do not start with the presumption that, being a pre constitution law, the burden is upon the State to establish its validity.
All existing laws are continued till this Court declares them to be in conflict with a fundamental right and, therefore, void.
The burden must be placed on those who contend that a particular law has become void after the coming into force of the Constitution by reason of Article 13(1) read with any of the guaranteed freedoms.
" These decisions on the question of burden of proof must be divided into two categories: those which deal with the violation of the equality clause in Article 14 of the Constitution and those others with deal with the violation of the guarantees contained in Article 19.
The leading decision on the former category of cases is Ram Krishna Dalmia in which Das, C.J., formulated six principles as emerging out of an analysis of the cases under Article 14.
The passage at page 297 of the Report in which these principles are set out has become a classic and a part of it has already appeared in this judgment as a quotation extracted by Krishna Iyer, J., in B. Banerji vs Anita Pan.
It may bear repetition to say that according to the learned Chief Justice, "there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles" and that, "it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds.
" The concluding words of the second of these two principles show that the said principle is limited in its application to cases arising under Article 14.
The question of discrimination arises under Article 14 and not under Article 19 of the Constitution.
Any case, even a locus classicus, is an authority for what it decides.
It is permissible to extend the ratio of a decision to cases involving identical situations, factual and legal, but care must be taken to see that this is not done mechanically, that is, without a close examination of the rationale of the decision which is cited as a precedent Human mind, trained even in the strict discipline of law, is not averse to taking the easy course of relying on decisions which have become famous and applying their ratio to supposedly identical situations.
In Ram Krishna Dalmia, the 22 Court was dealing with a challenge to section 3 of the and the notification issued by the Central Government under that section appointing a Commission of Inquiry to inquire into and report on the affairs of certain companies.
The Act was challenged on the ground that it conferred an arbitrary power on the Government to issue notifications appointing Commissions of Inquiry, while the notification was challenged on the ground that the petitioners and their companies were arbitrarily singled out for the purpose of hostile and discriminatory treatment and subjected to a harassing and oppressive inquiry.
The principles enunciated by the learned Chief Justice on behalf of the Court have to be understood in the context of these facts, the context being that the case before the Court involved considerations limited and germane to the application of Article 14.
Apart from certain other questions which are not relevant for our purpose, the entire discussion of the facts and law in that judgment revolves round the provisions of the Article.
Indeed, Article 14 is the king pin of the decision in Ram Krishna Dalmia.
It is wrong to treat the principles enunciated by the learned Chief Justice as of universal application and, in that process, to apply them to cases arising under other articles of the Constitution, particularly Articles 19 and 21.
The principle which underlies Article 14 is that equals must be treated equally, that is to say, that "laws must operate equally on all persons under like circumstances".
Article 14, though apparently absolute in its terms, permits the State to pass a law which makes a classification, so long as the classification is based on intelligible differentia having a real nexus with the object which is sought to be achieved by the law.
In the generality of cases under Article 14, the challenge is based on the allegation that the impugned provision is discriminatory since it singles out the petitioner for hostile treatment, from amongst persons who, being situated similarly, belong to the same class as the petitioner.
It is plain that in matters of this nature, the petitioner has to plead and prove that there are others who are situated similarly as him and that he is singled out and subjected to unfavourable treatment.
As observed by Shah J. in Western U.P. Electric Power and Supply Co. Ltd. vs State of U.P.: "Article 14 of the Constitution ensures equality among equals: its aim is to protect persons similarly 23 placed against discriminatory treatment.
It does not however operate against rational classification.
A person setting up a grievance of denial of equal treatment by law must establish that between persons similarly circumstanced, some were treated to their prejudice and the differential treatment had no reasonable relation to the object sought to be achieved by the law.
" Whether there are other persons who are situated similarly as the petitioner is a question of fact.
And whether the petitioner is subjected to hostile discrimination is also a question of fact.
That is why the burden to establish the existence of these facts rests on the petitioner.
To cast the burden of proof in such cases on the State is really to ask it to prove the negative that no other persons are situated similarly as the petitioner and that, the treatment meted out to the petitioner is not hostile.
Thus, there is a fundamental distinction between cases arising under Article 14 and those which arise under Articles 19 and 21 of the Constitution.
In a challenge based on the violation of Articles 19 and 21, the petitioner has undoubtedly to plead that, for example, his right to free speech and expression is violated or that he is deprived of his right to life and personal liberty.
But once he shows that, which really is not a part of the "burden of proof", it is for the State to justify the impugned law or action by proving that, for example, the deprivation of the petitioner 's right to free speech and expression is saved by clause (2) of Article 19 since it is in the nature of a reasonable restriction on that right in the interests of matters mentioned in clause (2), or that, the petitioner has been deprived of his life or personal liberty according to a just, fair and reasonable procedure established by law.
In cases, arising under Article 19, the burden is never on the petitioner to prove that the restriction is not reasonable or that the restriction is not in the interests of matters mentioned in clause (2).
Likewise, in cases arising under Article 21, the burden is never on the petitioner to prove that the procedure prescribed by law which deprives him of his life or personal liberty is unjust, unfair or unreasonable.
That is why the ratio of cases which fall under the category of the decision in Ram Krishna Dalmia must be restricted to those arising under Article 14 and cannot be extended to cases arising under Article 19 or Article 21 of the Constitution.
24 Saghir Ahmed vs The State of U.P. is a typical instance of a case arising under Article 19 of the Constitution.
The U.P. Road Transport Act, 1951 which was passed prior to the First Amendment Amendment to the Constitution which introduced clause (6) in Article 19, was challenged in that case on the ground that it conflicted with the fundamental right of the petitioner guaranteed under Article 19 (1) (g) of the Constitution.
Dealing with the question of burden of proof Mukherjea, J., who spoke for the Constitution Bench, stated the position thus: "With regard to the second point also we do not think that the learned Judges have approached the question from the proper stand point.
There is undoubtedly a presumption in favour of the constitutionality of a legislation.
But when the enactment on the face of it is found to violate a fundamental right guaranteed under Article 19 (1) (g) of the Constitution, it must be held to be invalid unless those who support the legislation can bring it within the purview of the exception laid down in clause (6) of the article.
If the respondents do not place any material before the Court to establish that the legislation comes within the permissible limits of clause (6), it is surely not for the appellants to prove negatively that the legislation was not reasonable and was not conducive to the welfare of the community." (Page 726) When the enactment on the face of it is violation of a fundamental right guaranteed by Article 19, the petitioner is absolved even of that modicum of an obligation to show that a right guaranteed to him by Article 19 is violated.
When the face of the law is not so clear, the petitioner does have to discharge the obligation of proving the fact of deprivation.
But, that only and nothing more.
A similar question arose in Khyerbari Tea Co. Ltd. vs The State of Assam, where the Assam Taxation (on Goods carried by road or on Inland Waterways) Act, 1961 was challenged on the ground that it placed unreasonable restrictions on the freedom of trade guaranteed by Article 301 and infringed the provision of Article 19 (1) (g) of the Constitution.
The Act was upheld by a Constitution Bench of this Court by a majority of 4 to 1, 25 Gajendragadkar J., who spoke for the majority, relied on the decision in Saghir Ahmed and said: "It is true that on several occasions, this Court has generally observed that a presumption of constitutionality arises where a statute is impeached as being unconstitutional, but as has been held in the case of Saghir Ahmed in regard to the fundamental right under Article 19 (1) (g), as soon as the invasion of the right is proved, it is for the State to prove its case that the impugned legislation falls within clause (6) of Article 19.
The position may be different when we are dealing with Article 14, because under that Article the initial presumption of constitutionality may have a larger sway inasmuch as is may place the burden on the petitioner to show that the impugned law denied equality before the law, or equal protection of the laws.
We may in this connection refer to the observations made by this Court in the case of Hamdard Dawakhana vs Union of India.
Another principle which has to be borne in mind in examining the constitutionality of a statute, it was observed, is that it must be assumed that the legislature understands and appreciates the needs of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted.
Presumption is, therefore, in favour of the constitutionality of an enactment.
It is significant that all the decisions to which reference is made in support of this statement of the law are decisions under Article 14 of the Constitution.
Mr. Setalvad has fairly conceded that in view of the decision of this Court in the case of Saghir Ahmed, it would not be open to him to contend that even after the invasion of the fundamental right of a citizen is proved under Article 19 (1) (g), the onus would not shift to the State.
In our opinion, the said decision is a clear authority for the proposition that once the invasion of the fundamental right under Article 19 (1) is proved, the State must justify its case under clause 26 (6) which is in the nature of an exception to the main provisions contained in Article 19 (1).
The position with regard to the onus would be the same in dealing with the law passed under article 304(b).
In fact, in the case of such a law, the position is some what stronger in favour of the citizen, because the very fact that a law is passed under Article 304(b) means clearly that it purports to restrict the freedom of trade.
That being so, we think that as soon as it is shown that the Act invades the right of freedom of trade, it is necessary to enquire whether the State has proved that the restrictions imposed by way of taxation are reasonable and in the public interest within the meaning of Article 304(b).
This enquiry would be of a similar character in regard to clause (6) of Article 19".
(pp 1003 4).
(emphasis supplied).
The observations made by Gajendragadkar J, in regard to the position arising under Article 304(b) are apposite to cases under article 21.
Article 304(b) provides that, notwithstanding anything in article 301 or article 303, the Legislature of a State may by law "impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest".
According to the learned Judge, in the case of a law passed under Article 304(b) the position on the question of burden of proof is somewhat stronger in favour of the citizen, because the very fact that the law is passed under that Article means clearly that it purports to restrict the freedom of trade.
By analogy, the position is also somewhat stronger in favour of the petitioners in cases arising under Article 21, because the very fact that, in defence, a law is relied upon as prescribing a procedure for depriving a person of his life or personal liberty means clearly that the law purports to deprive him of these rights.
Therefore, as soon as it is shown that the Act invades a right guaranteed by Article 21, it is necessary to enquire whether the State has proved that the person has been deprived of his life or personal liberty according to procedure established by law, that is to say, by a procedure which is just, fair and reasonable.
Another decision in the same category of cases is Mohd. Faruk vs State of Madhya Pradesh, in which the State Government 27 issued a notification cancelling the confirmation of the Municipal bye laws in so far as they related to the permission to the slaughtering of bulls and bullocks.
Dealing with the challenge of the petitioner to the notification on the ground that it infringed his fundamental right under Article 19(1)(g) of the Constitution Shah, J., who spoke for the Constitution Bench, observed: "When the validity of a law placing restriction upon the exercise of fundamental rights in article 19(1) is challenged, the onus of proving to the satisfaction of the Court that the restriction is reasonable lies upon the State.
Imposition of restriction on the exercise of a fundamental right may be in the form of control or prohibition, but when the exercise of a fundamental right is prohibited, the burden of proving that a total ban on the exercise of the right alone may ensure the maintenance of the general public interest lies heavily upon the State." (pp. 160 161) When, in a matter arising under Article 21, the person aggrieved is found to have been totally deprived of his personal liberty or is being deprived of his right to life, burden of proving that the procedure established by law for such deprivation is just, fair and reasonable lies heavily upon the State.
This discussion will be incomplete without a close examination of the decisions of this Court in B. Banerjee vs Anita Pan and Pathumma vs State of Kerala, which have been referred to by Sarkaria, J., in Bachan Singh as evidencing a "contrary trend" according to which, even in regard to cases under Article 19, there is an initial presumption in favour of the constitutionality of the statute and the burden of rebutting that presumption lies on the person who asserts that the statute is unconstitutional.
In B. Banerjee, a three Judge Bench of this Court had to consider the question whether sub section (3A) which was introduced in section 13 of the West Bengal Premises Tenancy Act, 1956 was violative of Article 19(1)(f) of the Constitution.
By the newly introduced subsection, the transferee of a property cannot file an eviction suit against his tenant for a period of three years from the date of transfer, on the grounds mentioned in clauses (f) and (ff) of section 13(1) of the Act.
We have already extracted the relevant passage from the judgment of Krishna Iyer, J., who spoke for the Court in 28 that case.
The learned Judge said that presumption had to be raised that the legislature understands and appreciates the needs of the people and that some courts had gone to the extent of holding that because of the presumption of constitutionality which every statute carries with it, the law will not be declared unconstitutional unless the case is so clear as to be free from doubt.
The learned Judge added, citing Seervai, that "to doubt the constitutionality of a law is to resolve it in favour of its validity".
With great respect, the judgment in B. Banerjee overlooks the binding decisions in Saghir Ahmed, Khyerbari Tea Co. and Mohd. Faruk which are directly in point.
Not only are binding decisions not referred to in the judgment but, in support of the view propounded by the Court, Krishna Iyer, J., has cited the decision in Ram Krishna Dalmia which, as we have stated earlier, must be limited in its application to cases arising under Article 14 of the Constitution.
To apply mechanically the decisions under Article 14 to cases arising under Article 19 is to ignore the significant distinction between the nature of the rights conferred by the two articles and their purport and content.
B. Banerjee cannot therefore be regarded as an authority for the proposition contended for by the learned Attorney General.
Evidently, the landlord 's contention that a beneficent provision, aimed at the protection of tenants harassed by motivated transfers of properties, was unconstitutional evoked a stern response.
That is understandable.
But, in the process of highlighting the need for social welfare legislation in the area of landlord tenant relationship, the distinction between Article 14 and Article 19 in so far as it bears upon the question of burden of proof failed to receive any attention.
The Bar too would seem not to have drawn the attention of the Court to that distinction and to the judgments which we have discussed a little earlier.
Pathumma is a seven Judge Bench decision on the question whether the restrictions imposed by the Kerala Agriculturists (Debt Relief) Act, 1970 violate Article 19(1)(f) and Article 14.
The appellants therein challenged section 20 of the Act particularly, which entitles agricultural debtors to recover properties sold in execution of decrees passed against them, Fazal Ali, J., who spoke four out of the seven learned Judges, refers at the outset of the judgment to the "approach which a Court has to make and the principles by which it has to be guided in such matters".
After stating that the Courts must interpret the Constitution: 29 "against the social setting of the country so as to show a complete consciousness and deep awareness of the growing requirements of the society, the increasing needs of the nation, the burning problems of the day and the complex issues facing the people which the legislature in its wisdom, through beneficial legislation, seeks to solve".
the learned Judge observes that since that the legislature is in the best position to understand and appreciate the needs of the people, the Courts have recognised that there is "always" a presumption in favour of constitutionality of a statute and the onus to prove its invalidity lies on the party which assails the same.
In support of this proposition, the learned Judge relied upon the decision of this Court in Mohd. Hanif Quareshi vs The State of Bihar, in which Das, C.J., restated the two propositions which were enunciated in Ram Krishna Dalmia.
We find it difficult to read the observations made by Fazal Ali, J. on behalf of the four learned Judges as an authority on the question of burden of proof in cases arising under Article 19 of the Constitution.
It is true that section 20 of the Kerala Act of 1970 was challenged on the ground that it violates Article 19 (1) (f) but it must be emphasised that it was also challenged on the ground that sub sections (3) and (6) thereof were violative of Article 14.
The observations made by the learned Judge and the statement of law contained in his judgment would certainly apply to cases arising under Article 14, for reasons which we have already discussed.
It is reasonable to suppose that if, by the use of the word "always", it was intended to lay down rules as to burden of proof in regard to cases arising under Article 19 also, some reference would have been made by the learned Judge to the Constitution Bench decisions in Saghir Ahmed, Khyerbari Tea Co. and Mohd. Faruk.
The fact that these decisions have not been referred to supports the inference that the observations made by the learned Judge at the outset of the judgment are of a general nature, not intended to apply to cases arising under Article 19 of the Constitution.
The Court, as we have said, was also dealing with a challenge under Article 14 and the weighty observations made by the learned Judge would apply to the arguments arising under that provision.
In support of the principles set out by him, Fazal Ali, J., relied upon the decision of a Constitution Bench of this Court in 30 Mohd, Hanif Quareshi.
In that case, laws passed by the States of Bihar, U.P. and Madhya Pradesh, banning the slaughter of certain animals were challenged by the petitioners on the ground that those laws violated the fundamental rights guaranteed to them by Articles 14, 19 (1) and 25 of the Constitution.
The Court, speaking through Das, C.J., first disposed of the preliminary question raised by Pandit Thakurdas Bhargava that since the impugned Acts were passed in discharge of the obligation laid on the State by the Directive Principle contained in Article 48, no grievance could be made that those laws violated the fundamental rights conferred on the petitioners by Chapter III of the Constitution.
The Court rejected the preliminary objection and turned to the second question as to whether the laws passed by the Legislatures of the three States violated the provisions of Article 25(1) of the Constitution.
After rejecting that contention also, the Court took up for consideration the argument of the petitioners as regards "the denial of the equal protection of the law" to them.
The petitioners ' argument was that the impugned Acts prejudicially affected only the Muslim Kasais who kill cattle but not others who kill goats and sheep and therefore those Acts were violative of Article 14 of the Constitution.
It is while dealing with this contention that the learned Chief Justice made observations which have been extracted by Fazal Ali, J. The observations made by the learned Chief Justice regarding the presumption of constitutionality and the burden being upon the person who attacks it are specifically made in the context of Article 14 as in Ram Krishna Dalima.
We are therefore of the opinion that the principles stated by Fazal Ali, J. on the question of burden of proof in Pathumma may apply to cases arising under Article 14 but not to those, arising under Articles 19 and 21 of the Constitution.
In fact, in Laxmi Khandsari vs State of U.P., Fazal Ali, J., sitting with Kaushal, J., said that "It is no doubt well established" that when a citizen complains of the violation of a fundamental right conferred by Article 19, the onus is on the State to prove "by acceptable evidence, inevitable consequences or sufficient materials" that the restriction is reasonable.
Bhagwati, J., in his dissenting opinion in Bachan Singh has expressed the view that the observations made by Krishna Iyer, J., in B. Banerjee and by Fazal Ali, J., in Pathumma cannot apply to cases arising under Articles 19 and 21 of the Constitution.
We respectfully agree with that view.
31 The seven Judge Bench decision in Madhu Limaye, on which Shri Jethmalani relies, involved a challenge to section 144 and Chapter VIII of the Code of Criminal Procedure on the ground that those provisions violated clauses (a), (b), (c) and (d) of Article 19 of the Constitution.
We have already extracted the passage from the judgment delivered in that case by Hidayatullah, C.J., on which the learned counsel relies.
That passage shows that the Court was considering the argument advanced by the petitioners that the preferred position doctrine, which was said to be in vogue in America, was applicable in India.
The argument was that, according to that doctrine, any law restricting the freedom of speech and expression, religion or assembly must be taken on its face to be invalid till it was proved to be valid.
Holding that the doctrine did not have the support of even the American Supreme Court any longer and that the unreasonableness of the law had to be established, the learned Chief Justice observed: "We do not start with the presumption that being a pre constitution law, the burden is upon the State to establish its validity,,.
Therefore, according to the learned Chief Justice, "the burden must be placed on those who contend that the particular law has become void after coming into force of the Constitution by reason of Article 13(1) read with any of the guaranteed freedoms".
(emphasis supplied in both the quotations).
These observations may at first blush seem to support Shri Jethmalani 's contention but, as we have stated earlier, it is wrong to extend the observations made in one context to an entirely different context.
The question which was considered in Madhu Limaye was whether certain provisions of the Code of Criminal Procedure, which is a pre Constitution law, are violative of the Constitution.
The Contention was that the Code of Criminal Procedure is a pre constitution Law and therefore the State must justify the constitutionality of that law.
That argument was rejected with the observation that "we cannot start with the presumption that a pre Constitution law is unconstitutional therefore the burden lies upon the State to establish its validity".
The specific observation on the question of burden to the effect that the burden lies on those who challenge the constitutionality of a law, is also made expressly in regard to the provisions of Article 13 (1) of the Constitution which provides that the laws which were in force before the commencement of the Constitution shall, in so far as they are inconsistent with the provisions of Part III, be void to the extent of such inconsistency.
Shri Jethmalani is right that Madhu Limaye was not noticed in 32 Bachan Singh, but we are unable to accept his contention that the decision is an authority for the proposition that the same rule of burden of proof must apply to all constitutional challenges, whether under Article 14, 19 or 21 of the Constitution.
We must hark back to Bachan Singh with which we began the discussion of the question as regards the burden of proof.
Sarkaria, J. observed in the majority judgement that "with regard to the onus, no hard and fast rule of universal application in all situations could be deduced from the decided cases".
We have made a modest attempt to show that cases arising under Article 14 are covered by a rule as to burden of proof which is different from the rule which applies to cases arising under Articles 19 and 21 of the Constitution.
In that sense, it is true to say that there is no hard and fast rule of universal application which can be applied a like to all situations.
We have also dealt with the two decisions in B. Banerjee and Pathumma which the Court had evidently in mind when it spoke of a 'contrary trend" which was discernible in the later decisions of the Court.
After referring to the Indian and the American cases bearing on the subject, the majority recorded its conclusion by saying that "the State has discharged its burden" to establish that death penalty serves as a deterrent, by producing the necessary data.
We are referring to this aspect of the decision in Bachan Singh in order to show that the judgment of the majority proceeded on the basis that the burden of proving the constitutionality of section 302 was on the State and the State had successfully discharged that burden.
Thus, Bachan Singh is an authority for proposition that in cases arising under Article 21 of the Constitution, if it appears that a person is being deprived of his life or has been deprived of his personal liberty, the burden rests on the State to establish the constitutional validity of the impugned law.
That disposes of the question of burden of proof.
In the light of this discussion, we must proceed to examine the question whether the State has discharged the burden of proving that the provisions of section 354(5) of the Code of Criminal Procedure are in conformity with the mandate of Article 21.
Consistently with the conclusion which we have recorded on the question of burden of proof, we must hold that the burden does not lie on the petitioners to prove that the procedure prescribed by the aforesaid provision for taking life is unjust, unfair or unreasonable.
The impugned statue, on the face of it, provides for a procedure for extinguishing 33 life.
Therefore, not even the initial obligation to show the fact of deprivation of life or liberty rests on the petitioners.
The State must establish that the procedure prescribed by section 354(5) of the Code for executing the death sentence is just, fair and reasonable.
That burden includes the obligation to prove that the said procedure is not harsh, cruel or degrading.
Has the State discharged this heavy onus ? We have already set out the grounds on which the petitioners challenge the constitutionality of section 354(5) of the Code of Criminal Procedure which provides that "When any person is sentenced to death, the sentence shall direct that he be hanged by the neck still he is dead".
Stated briefly, the contention of the petitioners is that section 354(5) of the Code is bad because: 1.
It is impermissible to take human life even under the decree of a Court since it is inhuman to take life under any circumstances; 2.
By reason of the provision contained in Article 21, it is impermissible to cause pain or suffering of any kind whatsoever in the execution of any sentence, much more while executing a death sentence; 3.
The method of hanging prescribed by section 354 (5) for executing the death sentence is barbarous, inhuman and degrading; and 4.
It is the constitutional obligation of the State to provide for humane and dignified method for executing the death sentence, which does not involve torture of any kind.
If the method prescribed by section 354(5) does not meet this requirement, no death sentence can be executed since, no other method for executing that sentence is prescribed by or is permissible under the law.
These arguments are answered by the learned Attorney General by contending that a sentence lawfully imposed by a Court can and has to be executed, though by causing the least pain and suffering and by avoiding torture of degradation of any kind; that the method prescribed by section 354(5) for executing the death sentence 34 is a humane and dignified method which involves the least amount of pain and cruelty; that no other method of executing the death sentence is quicker or less painful; that Article 21 does not postulate that no pain or suffering whatsoever shall be caused in the execution of a sentence lawfully imposed by a Court, including the sentence of death, and that, since the method of hanging prescribed by section 354(5) does not suffer from any constitutional infirmity, the question of the Court substituting that method by any other method does not arise for consideration.
While supporting these arguments of the Attorney General, Shri Ram Jethmalani added that unless, on the face of it, the method prescribed by a law for executing a sentence is revolting to the conscience, the Courts must surrender their discretion to the legislative judgment when the challenge to the constitutionality of the law is based on considerations which the Court is not equipped to evaluate by manageable judicial standards.
According to the learned counsel, the Court 's evaluation of the method of hanging prescribed by law shall have to be inevitably subjective, almost to the point of being legislative in character, which must be avoided at all costs.
The legislature has recognised means at its command for self education like the Law Commissions, the expression of public opinion, the result of scientific investigations, the sociological advance and, last but not the least, the unfettered freedom available to the legislators to discuss matters of moment on the floor of the House and to keep them under constant scrutiny.
"Hands off the Hanging" is the sum and substance of Shri Jethmalani 's argument.
New dimensions were added to these arguments by the other learned counsel.
For example, Shri Salman Khurshid advocated that instead of putting out life for ever by executing the death sentence, persons sentenced to death should be deprived of their eye sight by blinding them so that, if and when they are reformed, they could be given back their sight by transplantation or by whatever method medicine may discover for restoring the eye sight.
In the meanwhile, says counsel, justice shall have been done.
First, as to Shri Jethmalani 's argument that we should leave to the legislative wisdom the question as to how best the death sentence should be executed and that we should not project our subjective views into the decision of that question.
We find it impossible to accept this argument.
Matters of policy are certainly 35 for the legislature to consider and therefore, by what mode or method the death sentence should be executed, is for the legislature to decide.
As stated in Grega vs Georgia, in a democratic society legislatures, not Courts, are constituted to respond to the moral values of the people.
But the function of the legislature ends with providing what it considers to be the best method of executing the death sentence.
Where the function of the legislature ends, the function of the judiciary begins.
It is for the Courts to decide upon the constitutionality of the method prescribed by the legislature for implementing or executing a sentence.
Whether that method conforms to the dictates of the Constitution is a matter not only subject to judicial review but it constitutes a legitimate part of the judicial function.
As Judges, we cannot abdicate the obligation imposed upon us by the Constitution and throw our hands in despair with the consolation that after all, the chosen representatives of the people have willed that hanging is the best method of executing the death sentence.
We respect the judgment of the people 's representatives to the extent, but only to the extent, that as a matter of policy they considered that the method of hanging provided by section 354(5) of the Code is the least objectionable method for executing the death sentence.
But, what the policy judgment of the legislature leaves outstanding for the Court 's consideration is the question whether the particular method prescribed by law for executing the death sentence is in consonance with the Constitution.
This latter question is manifestly for the Courts to decide.
The decision of that question inevitably involves a value judgment based upon a comparative evaluation of alternate methods for executing the death sentence but, more than any such comparative evaluation, our plain and primary duty is to examine whether, even if the method selected by the legislature is the least objectionable, it is still open to the objection that in involves undue torture, degradation and cruelty as, for example, by causing more pain than is strictly necessary or by bringing about a lingering death or because the particular method is liable, frequently, to fail in its mechanism.
Our task will end with pointing out why, if at all, the method at present provided by law is contrary to the mandate of the Constitution, even if it be less objectionable than any other commonly accepted method of executing the death sentence.
We will not legislate by directing the since, if at all, the provision contained in section 354(5) is unconstitutional, the death sentence imposed upon the petitioners shall be executed 36 by the method of electrocution or gas chamber or lethal injection or shooting or guillotine and the like.
Nor can we direct, as canvassed by Shri Khurshid, that the petitioners be temporarily blinded.
That would be legislating.
To pronounce upon the constitutionality of a law is not legislating, even if such pronouncement involves the consideration of the evolving standards of the society. 'Cruelty ' and 'torture ' are not static concepts.
That is why, the chopping off of limbs which was not considered cruel centuries ago or, is not considered cruel in some other parts of the world to day, is impossible to conceive as a punishment by applying the contemporary standards of the Indian society.
What might not have been regarded as degrading or inhuman in days by gone may be revolting to the new sensitivities which emerge as civilization advances.
The impact and influence of the awareness of such sensitivities on the decision of the law 's validity is an inseparable constituent of the judicial function.
This Court is not a third Chamber of the legislature.
It has no such extra territorial ambitions and it does not aspire to do the job of 'out riders ', to use an expression Lord Devlin.
It is simply the highest Court of law and justice in a country governed by a written Constitution, which, it is its primary and exclusive function to interpret.
The care which we must take is that while interpreting the laws and the Constitution, we ought not to be swayed by passing passions or by populist sentiments.
We must do our duty by the Constitution, unaffected by extraneous considerations and guided solely by the obligation to be fair and just, almost to a fault.
The State seeks to discharge its burden by relying upon the Reports of Commissions which are based on results of scientific investigation into the mechanics of the hanging process, the opinions of text book writers, the predilection of sociologists, the proclivities of reformers and, of course, juristic exposition of the complex issue "to hang or not to hang".
To some of these we must now turn.
In the year 1949 the Government of United Kingdom appointed a Commission to report upon the various facets of the capital punishment.
The Commission submitted its report in September 1953 after extensive research into the questions referred to it and after interviewing experts, visiting jails and examining the merits and demerits of hanging as a method for executing the death sentence.
Chapter 13 of the Royal Commission 's Report deals with 37 the "methods of execution".
In paragraph 700 of that Chapter the Commission records that it heard evidence on the existing method of hanging from various witnesses, including Prison Commissioners and Prison officials, one Mr. A. Pierepoint, "the most experienced executioner in this country", and under sheriffs responsible for execution in London and Lancashire.
The Commission inspected execution chambers in England and Scotland and was given demonstrations of the procedure at an execution.
They also received evidence about executions in the United States by means of electrocution and lethal gas.
During their visit to the United States, they took the opportunity of inspecting the electric chair in two prisons.
Lastly, they questioned medical witnesses about possible new methods of execution.
In paragraph 703 of the Report the Commission notes that public opinion was disturbed by evidence that the task of hanging was sometimes bungled.
In 1885 a condemned murderer had to be reprieved after three unsuccessful attempts had been made to hang him.
There were also other untoward occurrences: Occasionally, a man might be given too short a drop and die slowly of strangulation, or too long a drop and be decapitated.
A Committee was therefore appointed in U.K. in 1886 to report on the best way of ensuring "that all executions may be carried out in a becoming manner without risk of failure or miscarriage in any respect".
This Committee made recommendations about the length of drop, improvements in the apparatus and preliminary tests and precautions which were designed to ensure speedy and painless death by dislocation of the vertebrae without decapitation.
The improved system of hanging now in vogue came into being as a result of the recommendations of this Committee.
The Home Office informed the Commission that "There is no record during the present century of any failure or mishap in connection with an execution, and, as now carried out, execution by hanging can be regarded as speedy and certain".
In paragraph 704 of the Report, the Commission says that it was "on the score of humanity" that execution by hanging was defended by witness after witness.
The Prison Officers held the system of hanging to be as humane as circumstances permit, while the Prison Medical Officers said "We cannot conceive any other method which could be more humane, efficient of expeditious than judicial hanging.
The Prison Chaplains called it "simple, humane 38 and expeditious".
The British Medical Association told the Commission that "hanging is probably as speedy and certain as any other method could be adopted.
The Royal Medico Psychological Association, after stating that the method of execution ought to be "certain, humane, simple, instantaneous and expeditious", said: "On the information available to the Association, the method of hanging fulfils these criteria more satisfactorily than any other so far proposed or in practice".
A knowledgeable witness told the Commission that the method of hanging was "certain, painless, simple, humane and expeditious".
In paragraph 705 of the Report, the Commission refers to the interesting development that the method of execution whose special merit was originally thought to be that it was peculiarly degrading and therefore deterrent, was defended before it on the ground that it was uniquely humane.
The reason for this surprising inversion is that as a result of the recommendations made by the Committee which was appointed in 1886, "a method originally barbarous. . has been successfully humanised".
In Paragraph 708, the Commission proceeds to examine the question whether there is any seemly and practicable method of execution which is as painless as hanging or even more speedy, or which, even though it may have no advantage over hanging in those respects, is free from the degrading associations of that method.
If capital punishment were being introduced for the first time, the Commission considered it unlikely that hanging would be chosen as a method for executing the death sentence.
The Commission, however, found that no useful propose would be served by making experiments unless the necessity was urgent or the utility evident.
And this applied with special force to a subject which was highly charged emotionally and was exceptionally controversial.
In paragraph 709, the Commission refers to five methods of execution of the death sentence which were then in vogue in the different parts of the world.
Electrocution was in vogue in 23 States of U.S.A.; Guillotine in France and Belgium; Hangiug in England, Scotland, the Commonwealth countries and 10 States of U.S.A.; and lethal gas in 8 States of U.S.A. Shooting was in vogue in the State of Utah in America which allowed a choice between hanging and shooting.
Besides, shooting was used in almost every 39 country as a method of execution of persons sentenced to death for offences against the Military Code.
Rejecting Guillotine and shooting as methods for executing the death sentence for the reason that the former produces mutilation and the latter is inefficient, uncertain and unacceptable as a standard method of civil executions, the Commission examined the mechanics of hanging in paragraphs 711 to 716 of its Report.
Paragraph 714, which is relevant for our purpose, shows that a valuable memorandum was submitted to the Commission by the Coroner for the Northern District of London, at whose instance many post mortem examinations following upon hanging were made by the late Sir Bernard Spilsbury, a distinguished man of medicine who had figured as a witness in many important trials, and other highly qualified pathologists.
The Coroner, Mr Bentley Purchase, had access to the records of such post mortem examinations.
The memorandum showed that the effective cause of death in 58 executions at two prisons was "fracture dislocation of cervical vertebrae with laceration or crushing of the cord" and that any such dislocation causes immediate unconsciousness, there being no chance of later recovery of consciousness since breathing is no longer possible.
The beating of the heart thereafter for any time upto 20 minutes is a purely automatic function.
In the words of the Corner: "I have no doubt of the efficacy and immediate and painless finality of the present method of judicial execution".
After examining the mechanics of the methods of electrocution and lethal gas in paragraphs 717 to 722, the Commission considers the question as to whether electrocution or lethal gas was preferable to hanging on considerations of "humanity, certainty and decency", The Commission observes in paragraph 724 that the requirements of humanity are essentially two: (1) that the preliminaries to the acts of execution should be as quick and as simple as possible, and free from anything that unnecessarily sharpens the poignancy of the prisoner 's apprehension, and (2) that the act of execution should produce immediate unconsciousness passing quickly in into death.
Paragraph 725 contains a comparative table showing the length of time taken by the preliminaries in electrocution, lethal gas and hanging.
On the basis of that comparative analysis, the Commission records its conclusion in paragraph 726 that, there was 'no room for doubt ' that in the matter of time taken by the preliminaries, hanging was superior to 40 either electrocution or lethal gas.
In all the three methods the prisoner had to be restrained in some way or the other prior to the execution but, in electrocution the execution is preceded by shaving and handcuffing while, in lethal gas the prisoner has to be stripped of his clothes, except a pair of shorts, in order that pockets of gas may not persist in the clothes.
In addition, a stethoscope head has to be strapped to the chest under the lethal gas method.
On the question of "certainty", the Commission observes in paragraph 729 of its Report that the equipment required for hanging is simpler than that which is required for electrocution or execution by lethal gas.
The lethal chamber is a complicated piece of mechanism while the electric chair depends for its efficacy upon the supply of electricity which is usually taken from commercial sources.
In fact, in the United States, executions by electrocutions were occasionally delayed by failure of the power.
The Commission recorded its conclusion by saying that neither electrocution nor lethal chamber had any advantage over hanging, in so far as the requirement of "certainty" is concerned.
In paragraph 732, the Commission deals with the third aspect, namely, "Decency" in execution of the death sentence.
It says that while considering this aspect it had kept two things in mind: Firstly, the obligation which obviously rests on every civilised State to conduct its judicial executions with decorum, and, secondly, that judicial execution should be performed without brutality, that it should avoid gross physical violence and should not mutilate or distort the body.
The Commission records its conclusion by saying that in so far as the requirement of decency is concerned, the other two methods have an advantage over hanging though, all the three methods were now used with all the decency possible in the circumstances.
The Commission records its final conclusion in paragraph 734 of the Report by saying that after weighing all the factors carefully and bearing in mind that the onus of proof was on the advocates of change, it could not recommend that either electrocution or gas chamber should replace hanging as a method of judicial execution: In the matter of humanity and certainty, the advantage lay with the system of hanging; in regard to.
one aspect of the requirement of decency the other two methods were preferable.
But, according to the Commission, that advantage could not be regarded as enough to turn the scale.
41 The counter affidavit filed on behalf of the Government of India by Shri P.S. Ananthanarayanan, Under Secretary, Ministry of Home Affairs, shows that the Director General of Health Services, who is the highest adviser to the Government of India in these and allied matters, was consulted on the question whether the system of hanging which is prevalent in India for executing the death sentence should be changed.
The D.G.H.S. advised as follows: "Subject: Mode of ending the life of a convict sentenced to death.
Continuation this Directorate u.o. No. 31 204/55 MI, dated the 10th April, 1956, on the above subject.
This Directorate has consulted the Administrative Medical Officers, Chemical examiners, other criminologists and experts, etc., On the subject and the views expressed by them fall into the following groups: (1) Those who consider the present method of hanging being the best .
Number 15 (2) Those favouring Electrocution .
Number 17 (3) Those favouring Medication, etc. .
Number 3 Even though electrocution has been advocated as a desirable method by a considerable number of those consulted, it is not a method without its drawbacks in that death is stated in this case not to be always instantaneous or even painless and that this method involves the setting up of a considerable mechanical outfit.
From the replies received from various sources, we also find that those who can speak with the authority of experience and knowledge have spoken with conviction regarding judicial hanging, properly carried out, as being the quickest and least painful method.
This is also the view of the Serologist and Chemical Examiner to the Government of India, Calcutta and the majority view of the Central Medico Legal Advisory Committee.
We are inclined to agree with this view and do not recommend any change in the present method of execution by judicial hanging in the present state of scientific knowledge.
" 42 Paragraph 16 of the counter affidavit says that the D.G.H.S. held to the same view as recently as in February 1982.
The 35th Report of the Law Commission of India on Capital Punishment, dated September 30, 1967 deals with "Execution of Sentences" in Chapter XV.
The Commission observes in paragraph 1097 of the Report that though hanging continued to be the most prevalent method for executing the death sentence, the course of events showed that it was being slowly abandoned.
Thus, while in 1930,17 States in U.S.A. used to employ that method, only 6 retained it in 1967.
Again, while it was in force in Yugoslavia before 1950, it was replaced by the firing squad in that year.
In paragraph 1098, the Law Commission deals briefly with the Report of the Royal Commission of England while in paragraph 1099, it discusses the Report of the Canadian Committee on the same subject.
It would appear from what the Law Commission has stated in this paragraph that the Canadian Committee considered four different methods of execution, namely, hanging, electrocution, gas chamber and lethal injection.
The last mentioned method was believed to ensure instantaneous and painless death, but it could only be accomplished by an intravenous injection requiring skill and the Canadian Committee considered that it would not be reasonable to expect a medical doctor to perform a task so repugnant to the traditions of the medical profession.
Moreover, an intravenous could not be administered unless the condemned person was entirely acquiescent.
The Canadian Committee appears to have noted that hangings in Canada were not conducted with the same degree of precision as in U.K., as a result of which it was difficult to know how the death was caused and whether the loss of consciousness had supervened instantaneously.
Holding on the basis of the evidence before it that hanging was regarded generally as an obsolete, if not a barbarous method, the Committee recommended that hanging should be replaced by electrocution.
In paragraphs 1101 to 1148 (pages 339 to 345), the Law Commission of India extracts the views which were expressed before it as to the ideal method for executing the death sentence.
Noting in paragraph 1149 that there was a considerable body of opinion which would like hanging to be replaced by something "more humane and more painless", the Commission says in paragraph 1150 that to a certain extent the matter was one of medical opinion.
The 43 general view expressed before the Commission was that a method which is certain, humane quick and decent should be adopted for executing the death sentence.
The society owed it to itself that the agony at the exact point of execution should be kept to the minimum.
But the Commission felt that it was difficult to express any positive opinion as to which of the three methods hanging, electrocution and gas chamber satisfied these tests most, particularly when electrocution and gas chamber were untried in India.
In paragraph 1151, the Commission records its conclusion by saying: "We do not therefore recommend a change in the law on this point.
" In other words, the recommendation of the Commission was that death sentence should be executed by the method of hanging prescribed in section 354(5) of the Criminal Procedure Code, since there were no circumstances justifying its substitution by any other method and since, no other method was shown to be more satisfactory.
In February 1978, Dr. Hira Singh, Prison Adviser to the National Institute of Social Defence, submitted his opinion to the Ministry of Home Affairs, Government of India, as follows: "In ancient days the execution of death sentence was often attended by cruel forms of torture and suffering inflicted on the offender.
With the passage of time, however, the methods of execution have undergone various changes.
The old practices such as beheading, drawing, stoning, impaling, precipitation from a height, etc., have been gradually replaced in all civilised countries by new methods of hanging, electrocution, gas chamber and shooting.
These changes have occurred mainly on the premise that death penalty means simply the deprivation of life and as such should be made as quicker and less painful as possible.
The old methods were considered inhuman.
According to the study on Capital Punishment published by the United Nations in 1962, hanging remains the most frequent method of execution in various coun 44 tries including the United Kingdom and generally throughout the Commonwealth.
In the United States it is no doubt losing ground in favour of electrocution and lethal gas.
The modern method of hanging differs from its traditional form as it involves an abrupt and immediate severance of the cervical vertebrae.
The whole process is carried out with care and skill so as to avoid any bungling and untoward incident.
The State Jail Manuals contain elaborate instructions on the arrangement for execution, inspection of gallows, testing of equipment and the manner of execution.
" The Prison Adviser thereafter sets out guidelines contained in the Model Prison Manual which have to be followed while executing the death sentence by the method of hanging.
In paragraph 3 of his opinion he says that the chances of a mishap in the electrocution process cannot be eliminated altogether and that in the United States, there have been occasions when the current failed to reach the chair when the switch was engaged.
After describing the procedure which is adopted in the methods of electrocution, gas chamber and shooting, he says that there are cases on record where executions by shooting were bungled by nervous firing squads.
Dr. Hira Singh concludes: "The question of introducing electric chair in place of hanging as a mode of execution may be examined from the administrative as well as humanitarian view points.
It is often argued that death by hanging takes lesser time to execute than the other modes, though it may not be invariably true.
In any case electric chair has in no way proved to be more efficient in reducing pain or suffering inflicted on the offender.
In hanging the body is liable to be disfigured but in electrocution also the leg is some times slightly burnt.
Above all electrocution involves much costlier equipment and operational preciseness than hanging.
In view of such considerations there seems to be no particular advantage in switching over to the electric chair in the execution of death sentence even if such a system may outwardly look to be more sophisticated.
" The opinion of the Prison Adviser is at Annexure V to the counter affidavit of Shri P.S. Ananthanarayanan.
45 We had allowed one Dr. Chandrakant of the All India Institute of Medical Sciences, New Delhi, to intervene in these proceedings.
We may, with some advantage, refer to his written submissions.
Dr. Chandrakant did his M.B.B.S. in 1970 and was in the Army Medical Corps for a period of five years.
He holds a Diploma in Oto rhino Laryngology and the degree of M.D. in Forensic Medicine and Toxicology.
It appears that he has also done a three year degree course of LL.B. from the Allahabad University.
He is presently working as a Lecturer in the Department of Forensic Medicine of the Institute, in which capacity he is required to conduct Medico legal autopsies.
He claims that he has conducted approximately 1100 medico legal autopsies uptil now.
According to him, hanging is the best method for executing the death sentence since by that method, death ensues instantaneously due to a combination of shock, asphyxia and crushing of Spinal Medulla.
He says that there are misconceived notions about judicial hanging due to improvised and faulty mechanism of the process involved in suicidal hangings and due to lack of knowledge of the anatomical structure of the neck and human body, Dr. Chandrakant describes the human anatomy and says that in hanging, whenever there is injury to Medulla, to Pons or Medulla oblongata, all the three vital centres called as "Tripod of life" are affected which causes instantaneous death.
Dr. Chandrakant has given a brief description of about 15 different methods which have been followed at one time or the other for executing the death sentence.
In a book called "Hanging through the ages (History of Capital Punishment)" by George R. Scott (Torchstream Books, London), the entire history of the technique of hanging has been traced.
The author says at page 211 that the introduction of an improved, technique of hanging has served to expedite the process of hanging, giving less pain to the prisoner and that, "the long drop" and other improvements have achieved a great deal though, despite everything that has been done, accidents are inevitable.
In "Kenny 's Outlines of Criminal Law," (19th Ed. 1966) edited by J.W. Cecil Turner, it is stated at page 618, foot note 5 that: "Hanging does not operate now through suffocation, but by a `long drop ', invented by Prof. Haughton of Dublin, which dislocates the vertebrae and is calculated to produce an instantaneous and painless death." 46 In "New Horizons in Criminology" by Harry Elmer Barnes and Negley K. Teeters (3rd Ed. 1966), it is stated: "Society has resorted to many different methods in executing criminal and other allegedly dangerous persons.
Drowning, stoning to death, burning at the state and beheading have all been used in the past.
Of all the modern methods of administering the death penalty, hanging has been the most widely used.
We read of hangings in the earliest historic literature and throughout the world even today it is still the most widely used.
,, In a publication called `Capital Punishment ' under the auspices of the United Nations, Department of Economic and Social Affairs, New York, 1962, it is stated in paragraph 57 of the chapter called `The Execution ' that in earlier times, a great variety of methods of execution was known to the law, the carrying out of a sentence of death being sometimes attended by `cruel forms of torture intended in certain cases to aggravate the suffering.
The publication says: .`On grounds of humanity and of the respect due to the human person the modern law has in general dropped these practices.
The death penalty means nowadays, simply the deprivation of life.
The differences which today exist regarding the methods of carrying out the death sentence are attributable to the efforts made to render death quicker and less painful".
The same paragraph mentions that hanging has generally been abandoned in the United States.
According to the issue of `Time ' magazine dated January 24, 1983, only four States of America still prescribe hanging as a method for executing the death sentence.
Paragraph 59 of U.N. publication says that "Hanging remains the most frequent method in use".
It lists over 25 countries of the world in which the method of hanging is used for executing the death sentence.
In so far as the judicial exposition of this subject is concerned, attention may be drawn to the latest decision of this Court in Bachan Singh in which the majority said that under the successive Criminal Procedure Codes which have been in force in India for about 100 years, the sentence of death is to be carried out by the method of hanging.
The founding fathers of the Constitution, some of whom were distinguished jurists (in the proper sense of that term), cannot be assumed to be ignorant of the provision contained in section 354(5) of the Code.
And, despite the fact that the death sentence has to be carried out by the mode prescribed in that 47 section, they recognised the existence and validity of that sentence.
The majority accepted the proposition that by reason of the provision contained in Article 21, no person can be deprived of his life or personal liberty except in accordance with fair, just and reasonable procedure established by law.
Applying that postulate, it observed that the framers of the Constitution did not consider that either the death sentence or the traditional mode of its execution prescribed by section 354(5) of the Code was a degrading punishment which would defile the dignity of the individual within the contemplation of the Constitution.
These observations are significant, with the caveat that the question as regards the validity of section 354(5) of the Code was not directly in issue in Bachan Singh.
This then is the data on which reliance is or can be placed by the Union of India for discharging the burden which rests upon it for proving that the method of hanging prescribed by section 354(5) of the Code does not violate the guarantee contained in Article 21 of the Constitution.
Though it must be conceded that the various learned counsel for the petitioners led by Shri R.K. Garg and Dr. N.M. Ghatate have argued their respective cases with great fervour, industry and tenacity, the writ petitions furnish no data or reasons whatsoever as to why the method of the hanging is violative of Article 21.
Mostly, the prayer clauses of petitions simply contain a request that the system of hanging should be declared to be violative of Articles 14, 19 and 21 of the Constitution.
Articles 14 and 19 were hardly even mentioned in the arguments on the main point and, rightly so.
The arguments advanced in regard to the violation of Article 21 went far beyond the scope of the averments in the writ petitions but that is not unprecedented in this Court.
Moreover, in a matter involving the question of life and death, technicalities cannot be allowed to defeat justice.
We could have asked the petitioners to amend their petitions but rather than doing so, we decided to hear a full dressed argument on the validity of section 354(5) of the Code, regardless of the paucity of pleadings, especially since the writ petitions do not involve any challenge under Article 14 of the Constitution.
We have heard the petitioners ' counsel at length on every conceivable aspect of the question involved in these petitions.
We have proceeded to this judgment, on a careful consideration of the diverse submissions made before us.
48 Dr. Ghatate, who began the arguments on behalf of the petitioners, contended that the method of hanging involves pain, degradation and suffering wherefor that method violates Article 21 and cannot be used for executing the death sentence.
In support of this argument, he drew our attention to certain passages in the dissenting judgment of Bhagwati, J., in Bachan Singh.
At page 285 of the Report, the learned Judge has extracted a passage from a decision of the California Supreme Court in which it is said that, "Penologists and medical experts agree that the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture".
In the absence of citation, we are unable to trace the decision or to see the context in which the California Supreme Court made the particular observation.
We do not know who these "Penologists and medical experts" are and where they have expressed agreed opinions attributed to them.
It is not even clear whether the California Court was dealing with the validity of death penalty or with the methods of executing that penalty and, if the latter, whether it has condemned every method of the execution and not the method of hanging only.
The purport of the passage seems to indicate that the question under inquiry was that death sentence is a `cruel unusual punishment '.
As we have shown, the expert evidence before the Royal Commission of U.K. was quite to the contrary, especially in regard to the improved technique of hanging which came into operation after the recommendations of the Committee appointed in 1886 were implemented.
At page 287 of the Report Bhagwati, J., has made certain observations which also Dr. Ghatate has pressed into service.
We have already extracted those observations while dealing with the preliminary objection of the learned Solicitor General.
The sum and substance of the particular passage is that "hanging is undoubtedly accompanied by intense physical torture and pain".
In support of this conclusion, the learned Judge quotes Warden Duffy of San Quentin, a high security prison in U.S.A,, who had described with particularity the procedure which obtains at the hangings of prisoners.
After extracting a statement of Warden Duffy at page 288, the learned Judge says: "If the drop is too short, there will be a slow and agonising death by strangulation.
On the other hand, if the drop is too long, the head will be torn off.
In England centuries of practice have produced a detailed chart relating a man 's weight and physical condition to the proper length of drop, but even there mistakes 49 have been made.
" Our difficulty again is the absence of citation of the descriptive hassage which appears at page 288 of the Report.
We do not know where, and in which year, Warden Duffy gave the particular description of the hanging process.
The process described by him is apparently similar to the one which is now regarded as outmoded and is no longer in use.
Besides, Warden Duffy was a stern opponent of the capital punishment.
In a series of articles under the caption "San Quentin is my Home" which appeared in the Saturday Evening Post, March 25 May 13, 1950, he denounced the capital sentence by pointing out, inter alia, how every known method of executing that sentence is fraught with pain and suffering.
We will have occasion to call attention to what he has to say about the Gas Chamber too.
But evidence before us shows that the mechanics of the method of hanging has undergone significant improvement over the years and if the expression is not inapt in the context, hanging has been almost perfected into a science.
The chances of a mishap are minimal now though, the chances of an accident can never be eliminated totally, If that could be done, the word "accident" will not appear in the dictionary of wise men.
In regard to the improvements effected in the method of hanging, we will only draw attention to the findings of the Royal Commission and the opinion expressed by other experts to which we have already referred.
Finally, Dr. Ghatate relies upon an account given in 1927 by a Surgeon who witnessed a double execution, which has been extracted in the judgment of Bhagwati, J., at page 288 of the Report.
It appears from the Surgeon 's account that `one of the supposed corpses ' gave a gasp which the Surgeon was, very naturally, horrified to hear.
Two bodies not completely dead were then raised to the scaffold again.
In his account the Surgeon has stated that though dislocation of the neck is the ideal aimed at in hanging, that had proved rather an exception in his own post mortem findings which showed that in the majority of instances, the cause of death was strangulation and asphyxia.
Relying on this account Bhagwati, J., concludes: "These passages clearly establish beyond doubt that the execution of sentence of death by hanging does involve intense physical pain and suffering, though it may be regarded by some as more humane than electrocution or application of lethal gas." With great respect, our difficulty is the same as in regard to the two earlier passages extracted by the learned Judge, one from the California Supreme Court judgment and the other from Warden Duffy.
We 50 do not know who the Surgon is and from where the quotation is extracted.
Besides, as we have repeatedly said, there has been a significant improvement in the mechanism of hanging.
Old experiences are not to be discarded out of hand but they cannot be applied to new situations without a critical examination of their relevance to those situations.
Otherwise, technical sciences, particular the medical science, shall have made their remarkable advance in vain.
We have given our anious and respectful consideration to the passages extracted and the observations made by our learned Brother Bhagwati.
The fact that these are contained in a majority judgment is no justification for ignoring them.
In a matter as socially sensitive as this, it is improper to overlook the opposing point of view, whether it is expressed in a minority judgment or elsewhere.
Bhagwati, J., says in the last passage extracted by us from his judgment that the method of hanging is perhaps regarded by some as more humane than electrocution or the application of lethal gas.
Dr. Ghatate has his own point of view.
He contends that electrocution is the quickest and the simplest method of executing the death sentence, in which there is no scope for failure of the apparatus.
He has two alternative submissions to make: One, falling electrocution, administration of lethal injection should be adopted as a method for executing the death sentence and, two, failing lethal injection, shooting by a firing squad should be resorted to.
We assume that the learned counsel has obtained his client 's instructions on the use of these alternative methods, particularly shooting.
Truly, we are not concerned to determine the merits and demerits of these alternative methods of execution which are canvassed by the learned counsel and some of which are in vogue in some other parts of the world.
If the method prescribed by section 354(5) of the Code is violative of Article 21, the matter must rest there because.
as contended by Dr. Ghatate himself, the Court cannot substitute any other method of execution for the method prescribed by law and which alone is permissible under the law.
However, an understanding of the process involved in the competing methods used for executing the death sentence and their comparative assessment is not altogether pointless.
If it can be demonstrated clearly that some other method has a real and definite advantage over the method of hanging, the question will naturally arise as to why the State does not adopt that method.
An arbitrary rejection 51 of a method proved to be simpler, quicker and more humane than hanging may not answer the constitutional prescription.
The Royal Commission mentions in paragraph 717 of its Report that during their visit to America, they inspected the electric chairs in the Sing Sing Prison, New York and the District of Columbia Jail, Washington, and that they received evidence about the use of the electric chair in other States.
The Commission has given the following account of the method of electrocution based primarily on the information obtained by them in Washington: "The execution takes place at 10 a.m. At midnight on the preceding night the condemned man is taken from the condemned cell block to a cell adjoining the electrocution chamber.
About 5.30 a.m., the top of his head and the calf of one leg are shaved to afford direct contact with the electrodes.
(The prisoner is usually handcuffed during this operation to prevent him from seizing the razor.) At 7.15 a.m., the death warrant is read to him and about 10 O 'clock he is taken to the electrocution chamber.
Three officers strap the condemned man to the chair, tying him around the waist, legs and wrists.
A mask is placed over his face and the electrodes are attached to his head and legs.
As soon as this operation is completed (about two minutes after he has left the cell,) the signal is given and the switch is pulled by the, electrician; the current is left on for two minutes, during which there is alternation of two or more different voltages.
When it is switched off, the body slumps forward in the chair.
The prisoner does not make any sound when the current is turned on, and unconsciousness is apparently instantaneous.
He is not, however, pronounced dead for some minutes after the current is disconnected.
The leg is sometimes slightly burned, but the body is not otherwise marked or mutilated.
" In paragraph 7 8, the Commission says: "No case of mishap was recorded in Washington, but it seems that in some other States there have been occasions when the current failed to reach the chair when the switch was engaged.
Some States install an emergency 52 generator in order that an execution may not be delayed by failure of the commercial.
" Lest it be thought that the Report of the Royal Commission, having been given 30 years back, the description of the process of electrocution contained therein may not apply to the modern conditions, we may draw attention to the cover story on the death penalty which appended in the issue of `Time ' magazine, dated Jan. 24, 1983.
The write up.
which is predominantly in favour of abolition of the death sentence, contains a vivid description of the methods of electrocution, gas chamber and lethal injection which are used in some of the States in America.
The cover story, "An Eye for an eye", gives the following description of electrocution at page 12 of the issue; "The chair is bolted to the floor near the back of a 12 ft. by 18 ft. room.
You sit on a seat of cracked rubber secured by rows of copper tacks.
Your ankles are strapped into half moon shaped foot cuffs lined with canvas.
A 2 in wide greasy leather belt with 28 buckle holes and worn grooves where it has been pulled very tight many times is secured around your waist just above the hips.
A cool metal cone encircles your head.
You are now only moments away from death.
But you still have a few seconds left.
Time becomes stretched to the outermost limits.
To your right you see the mahogany floor divider that separates four brown church type pews from the rest of the room.
They look odd in this beige Zen like chamber.
There is another door at the back through which the witnesses arrive and sit in the pews.
You stare up at two groups of fluorescent lights on the ceiling.
They are on.
The paint on the ceiling is peeling.
You fit in neat and snug.
Behind the chair 's back leg on your right is a cable wrapped in gray tape.
It will sluice the electrical current to three other wires : two going to each of your feet, and the third to the cone on top of your head.
The room is very quiet.
During your brief walk here, you looked over shoulder and saw early morning light creeping over the Berkshire Hills.
Then into this silent tomb.
53 The air vent above your head in the ceiling begins to hum.
This means the executioner has turned on the fan to suck up the smell of burning flesh.
There is little time left.
On your right you can see the waist high, one way mirror in the wall.
Behind the mirror is the executioner, standing before a gray marble control panel with gauges, switches and a foot long lever of wood and metal at hip level.
The executioner will pull this lever four times.
Each time 2,000 volts will course through your body, making your eyeballs first bulge, then burst, and than broiling your brains . " Electrocution was first introduced in the New York State prison at Auburn on August 6, 1890.
The initial victim was one William Kemmler whose challenge to the validity of the method of electrocution as a cruel and unusual punishment was rejected by the U.S. Supreme Court.
Though this method is now advocated as a humanitarian move, in reality, its original introduction appears to have been the result of the effort of an electrical company to market its products.
Though it is generally believed that death by electrocution is entirely painless, a distinguished French scientist, L.G.V. Rota, disputes this contention.
Labelling this method of executing the death sentence as a form of torture, Rota contends that a condemned victim may be alive for several minutes after the current has passed through his body without a physician being certain whether death has actually occurred or not.
He adds that some persons have greater physiological resistance to the electric current than others, and that, no matter how weak the person, death cannot supervene instantly.
Another attack on the pain of death in electrocution was made by Nicola Tesla, the electrical wizard.
The opposite view is 54 expressed by Robert G. Elliott in `Agent of Death ' (New York: Dutton, 1940).
Robert Elliott, one time executioner for several eastern States, who officiated at 387 executions maintains that electrocution is painless.
Power seldom fails in countries like America, U.S.S.R., and Japan.
Even then, the failure of electrical energy supplied by commercial undertakings has been considered in America as an impediment in the use of the electric chair.
With frequent failures of electrical power in our country, the electric chair will become an instrument of torture.
One can well imagine the consequences of the use of the electric chair in the city of Calcutta or, for the matter of that, in the capital City of Delhi.
For technical reasons, even the Supreme Court complex is not spared from frequent load shedding during working hours.
Lawyers, litigants and Judges have now trained themselves to suffer the inconvenience arising from failure of electricity.
But, it would be most unfair to expect a prisoner condemned to death to get into the electric chair twice or thrice, for the reason that the electric current failed during the process of electrocution.
It is not our intention to blame anyone for the power crisis because it would seem that it is partly due to natural causes and is not man made.
But facts are facts must be faced.
Execution by lethal gas is discussed by the Royal Commission in paragraphs 719 to 722 of its Report.
The Commission says in paragraph 719 that they did not inspect any lethal gas chamber during their visit to America, but they were supplied with written evidence about execution by lethal gas.
They also had the advantage of hearing evidence from one Mr. Philip Allen, the then Deputy Chairman of the Prison Commission and of receiving a report from the English Neurologist, Dr. Macdonald Critchley, both of whom had inspected the lethal chamber at St. Quentin Prison, California, of which the famous Clinton Duffy was a warden.
In paragraph 720 of the Report, the Royal Commission says: "The lethal chamber is very elaborate in comparison with the apparatus needed for other methods of execution.
It is expensive to install and requires a complicated series of operations to produce the gas and to dispose of it afterwards".
The description of the gas chamber method given by the Royal Commission is like this: The chamber is required to be hermetically sealed to prevent leakage of cyanide gas, the doors leading to the 55 chamber are required to be connected with an electrically controlled panel, the prisoner 's arms, legs and abdomen are tied to the chair with leather straps, a pound of sodium cyanide pellets is placed in a trap in the seat of the chair and three pints of sulphuric acid and six pints of water mixed in a lead container are placed in a position to receive the cyanide pellets.
A rubber hose is connected to the head of a stethoscope which is strapped to the prisoner 's chest.
The entire clothing of the prisoner is removed except for shorts.
Finally, a leather mask covers the prisoner 's face.
After the prisoner is pronounced dead, Amonia gas is forced into the chamber until the indicators within the chamber show that all cyanide gas has been neutralised.
The Amonia gas is then removed by a specially constructed exhaust fan.
Paragraph 721 of the Royal Commission 's Report shows that the length of time taken by this method of execution is about 45 minutes.
In paragraph 722 the Commission says that when this method was first employed, it was thought that the gas had a suffocating effect which would cause acute distress, if not actual pain, before the prisoner became unconscious.
According to the Commission, it seems to be now generally agreed that unconsciousness ensues very rapidly in the gas chamber method.
Clinton Duffy, warden of San Quentin Prison, California, says that the operation of the gas chamber execution includes "funnels, rubber gloves, graduates, towels soap, pliers, scissors, fuses and a mop: in addition, sodium cyanide eggs, sulphuric acid, distilled water, and amonia".
Coming to the method of shooting by a firing squad, we have already extracted an opinion which shows that there are chances of bungling in that method.
But a more serious objection to which this method is open is that it is the favourite past time of military regimes which trample upon human rights with impunity.
They shoot their citizens for sport.
Shooting is an uncivilised method of 56 extinguishing life and it is enough to say in order to reject in that the particular method is most recklessly and want only used for liquidating opposition and smothering dissent in countries which do not respect the rule of law.
Lastly, murders by shooting are becoming a serious menace to law and order in our country.
Shooting by the State in order to kill for executing the order of a Court of law will unwittingly confer respectability on the 'shoot to kill, tactics which are alarmingly growing in proportion.
What remains now to consider is the system of lethal injection.
The Royal Commission has discussed that method in paragraphs 735 to 749 of its Report.
Lethal injection is by and large an untried method.
But that is not its most serious defect.
The injection is required to be administered intravenously, which is a delicate and skilled operation.
The Prison Medical Officers who were interviewed by the Royal Commission doubted whether the system of lethal injection was more humane than hanging (See paragraph 739 of the Report).
The British Medical Association told the Commission that no medical practitioner should be asked to take part in bringing about the death of a convicted murderer and that the Association would be most strongly opposed to any proposal to introduce a method of execution which would require the services of a medical practitioner, either in carrying out the actual process of killing or in instructing others in the technique of that process.
The Commission expressed its conclusion in paragraph 749 by saying that it could not recommend that, in the present circumstances, lethal injection should be substituted for hanging since they were not satisfied that executions carried out by the administration of lethal injections would bring about death more quickly, painlessly and decently in all cases.
The Commission, however, recommended, unanimously and emphatically, that the question should be periodically examined, especially in the light of the progress made in the science of anaesthetics.
We may lastly refer to the affidavit filed by one Dr. N.P. Singh who was allowed to intervene on behalf of the National Association of Critical Care Medicine (India), New Delhi.
He says in his affidavit that society has come to realise that death by hanging is not a merciful and pleasant way of putting a patient to a terminal end: "As members of the medical profession and the Association, we feel that a patient may be put to sleep by any sleep inducing injection (barbiturates) and subsequently, the above mentioned electrocution 57 and gas chamber methods may be applied as the patient 's sense would have been dulled by the drug injection".
This system certainly has the merit of naivete and novelty but, on the face of it, the system is impracticable and would appear to involve complications and torture to an uncommon degree.
We may in this behalf draw attention to an article "The Death Penalty: Moral argument and capricious practice" by Andrew Rutherford, a senior Lecturer in Law at the Southampton University, which appeared in 'The Listener ' of July 7, 1983, published by the British Broadcasting Corporation.
In that article, the writer refers to an incident to the effect that in 1982 December, a prisoner was put to death in Texas by means of an injection of sodium pentothol.
The incident led the American Medical Association to declare: "The use of a lethal injection as a means of terminating the life of a convict is not the practice of medicine".
The writer proceeds to say that there is not likely to be any great enthusiasm for the method of electrocution as well, since in April 1983, it took three 30 seconds shots of 1,900 volts before a man in Alabama was pronounced dead.
It is clear from this narrative that neither electrocution, nor lethal gas, nor shooting, nor even the lethal injection has any distinct or demonstrable advantage over the system of hanging.
Therefore, it is impossible to record the conclusion with any degree of certainty that the method of hanging should be replaced by any of these methods.
But, for due compliance with the mandate of Article 21, it is not enough to find that none of the other methods of execution has a real advantage over the method of hanging.
The other methods may have some of the vices of being impracticable, complicated, slow and uncertain.
That is only one side of the picture because, the circumstance that the other methods are not feasible does not establish of its own force that the method of hanging is free from blame.
The weakness of defence cannot establish the plaintiff 's case.
In other words, though hanging may not suffer in comparison with the other methods, what we must determine is whether, hanging as a method of executing the death sentence, considered in isolation, that is to say, without comparison with the other methods, offends against the cannons of Article 21.
There is a responsible body of scientific and legal opinion which we have discussed, which holds the view that hanging by rope 58 is not a cruel mode of executing the death sentence.
That system is in operation in large parts of the civilised world.
That was the only method of executing the death sentence which was known to the Constituent Assembly and yet it did not express any disapproval of that method, though it touched upon the question of death sentence while dealing with the President 's power of pardon under Article 72 (1) (c) of the Constitution.
Having given our most anxious consideration to the central point of inquiry, we have come to the conclusion that, on the basis of the material to which we have referred extensively, the State has discharged the heavy burden which lies upon it to prove that the method of hanging prescribed by section 354(5) of the Code of Criminal Procedure does not violate the guarantee contained in Article 21 of the Constitution.
The material before us shows that the system of hanging which is now in vogue consists of a mechanism which is easy to assemble.
The preliminaries to the act of hanging are quick and simple and they are free from anything that would unnecessarily sharpen the poignancy of the prisoner 's apprehension.
The chances of an accident during the course of hanging can safely be excluded.
The method is a quick and certain means of executing the extreme penalty of law.
It eliminates the possibility of a lingering death.
Unconsciousness supervenes almost instantaneously after the process is set in motion and the death of the prisoner follows as a result of the dislocation of the cervical vertebrae.
The system of hanging, as now used, avoids to the full extent the chances of strangulation which results on account of too short a drop or of decapitation which results on account of too long a drop.
The system is consistent with the obligation of the State to ensure that the process of execution is conducted with decency and decorum without involving degradation of brutality of any kind.
At the moment of final impact when life becomes extinct, some physical pain would be implicit in the very process of the ebbing out of life.
But, the act of hanging causes the least pain imaginable on account of the fact that death supervenes instantaneously. 'Imaginable ', because in the very nature of things, there are no survivors who can give first hand evidence of the pain involved in the execution of a death sentence.
Dead men tell no tales.
The question as regards the factor of pain has therefore to be judged on the basis of scientific investigations and by applying the test of reason.
The conclusion that the system of hanging is as painless 59 as is possible in the circumstances, that it causes no greater pain than any other known method of executing the death sentence and that it involves no barbarity, torture or degradation is based on reason, supported by expert evidence and the findings of modern medicine.
On the question of pain involved in a punishment, the concern of law has to be to ensure that the various steps which are attendant upon or incidental to the execution of any sentence, more so the death sentence, do not constitute punishments by themselves.
If a prisoner is sentenced to death, it is lawful to execute that punishment and that only.
He cannot be subjected to humiliation, torture or degradation before the execution of that sentence, not even as necessary steps in the execution of that sentence.
That would amount to inflicting a punishment on the prisoner which does not have the authority of law.
Humaneness is the hall mark of civilised laws.
Therefore, torture, brutality, barbarity, humiliation and degradation of any kind is impermissible in the execution of any sentence.
The process of hanging does not any of these, directly, indirectly or incidentally.
Accordingly, we hold that the method prescribed by section 354(5) of the Code of Criminal Procedure for executing the death sentence does not violate the provision contained in Article 21 of the Constitution.
There is one point which still remains to be considered and that is the point made by Shri R.K. Garg.
He contends that it is inhuman to kill under any circumstances, even under a judgment of a Court and, therefore, no death sentence can be executed at all by means fair or foul.
The fact that the method prescribed by law for executing the death sentence is humane makes no difference for, according to him, Article 21 imposes a total prohibition on the taking of human life, which would include the execution of death sentence.
It is impossible to accept this contention.
The argument, in truth and substance, is aimed at the validity of the death sentence itself and, indeed, much of what Shri Garg said is directed at showing the invalidity of section 302 of the Penal Code rather than the invalidity of section 354(5) of the Code of Criminal Procedure.
We are unable to appreciate how it is unlawful, in the abstract and in the absolute, to execute a lawful order.
If it is lawful to impose the sentence of death in appropriate cases, it would be lawful to 60 execute that sentence in an appropriate manner.
Article 21, undoubtedly, has as much relevance on the passing of a sentence, as on the manner of executing it.
Therefore, a two fold consideration has to be kept in mind in the area of sentencing.
Substantively, the sentence has to meet the constitutional prescription contained, especially, in Articles 14 and 21.
Procedurally, the method by which the sentence is required by law to be executed has to meet the mandate of Article 21.
The mandate of Article 21 is not that the death sentence shall not be executed but that it shall not be executed in a cruel, barbarous or degrading manner.
If we were to accept the argument of Shri Garg, the imposition of death sentence would become an exercise in futility: pass the sentence of death if you may but, it shall not be executed in any manner, under any circumstances.
A Constitution so carefully conceived as ours cannot be construed to produce such a startling result.
Indeed, the argument, if carried to its logical conclusion will make it impossible to execute any sentence whatsoever, particularly of imprisonment, because every sentence of imprisonment necessarily involves pain and suffering to a lesser or greater degree.
Painless punishment is a contradiction in terms.
The constraints of Bachan Singh deserve to be preserved but that means that it is only a rare degree of malevolence which invites and justifies the imposition of death sentence.
Granting that the sentence of death is constitutionally valid, not even the sophisticated sensitivities can justly demand that those upon whom the extreme penalty of law is imposed because of the magnitude of their crime, should not be made to suffer the execution of that sentence, unaccompanied by torture or degradation of any kind.
If the larger interests of the community as opposed to the interests of an individual require that the death sentence should be imposed in an exceptional class of cases, the same societal interests would justify the execution of that sentence, though in strict conformity with the requirements of Article 21.
Though Article 21 was the focal point of this case, almost everyone of the learned counsel appearing on behalf of the petitioners drew inspiration from the Eighth Amendment to the United States Constitution which provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
" 61 The prohibition against cruel and unusual punishment dates back to the Magna Carta though it found recognition in the English Law by its adoption in the English Declaration of Rights in 1688.
The purpose of this enactment was to check the barbarous punishments which were common during the regime of the Stuarts, like pillory, disemboweling, decapitation and drawing and quartering.
As a result of the English reform movement which was started in the seventeenth century by the European humanists, these punishments gradually fell into disrepute.
The fundamental principal underlying the prohibition against cruel and unusual punishments was incorporated into the Bill of Rights in 1791.
The early development of law in America shows that the prohibition against cruel and unusual punishments concerned itself with unusual cruelty only, the emphasis being upon "unnecessary cruelty and pain".
In Kemmler, death by electrocution was held not necessarily cruel.
In O 'Neil vs Vermont Justice Field, in his dissenting opinion, enlarged the concept of unusual punishment to cover penalties "which shock the sense of justice".
In Trop vs Dulles a sharply divided Court held that divesture of citizenship was constitutionally forbidden.
Chief Justice Warren, speaking for three Justices, observed that the content of the Eighth Amendment was not static and that it "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society".
According to the learned Chief Justice, the Eighth Amendment whose "basic concept is nothing less than the dignity of man", ensures "the principle of civilized treatment".
After the decision in Troop, the American Supreme Court has formulated a sophisticated definition of the Eighth Amendment clause in a series of important cases called the "18 Key cases".
A resume of those cases can be found in 'Substantive Criminal Law ' by Prof. M. Cherif Bassiouni (Ed. 1978, pp. 44 45).
It shows that even a second electrocution after the failure of the first attempt, provided it is not an intentional effort to inflict unnecessary suffering, was held not violative of the Eighth Amendment (Louisiana vs Resweber.
It was observed in that case that: "the cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of 62 punishment, not the necessary suffering involved in any method employed to extinguish life humanely.
No one can deny that some suffering and anguish is bound to result to the condemned man at the time of execution of his death sentence.
But it is not wholly inappropriate to observe that having had the opportunity to avoid that suffering and anguish, he chose the path of risking it in favour of earning some other benefit.
His minimal suffering is real, but so we believe was the suffering of his victims and even so will be the suffering of the victims of those other criminals who believe that they can commit crimes of great atrocity with relative impugnity".
It is this 'relative impunity ' which attracts the rule in Bachan Singh.
Though the Eighth Amendment has thus a dynamic content which has been evolved over the years as public moral perceptions changed from time to time, several concurring opinion show that in America, capital punishment is not considered to be violative of the Eighth Amendment.
In the words of Chief Justice Earl Warren, "the death penalty has been employed throughout our history, and, in a day which it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty".
What the Eighth Amendment prohibits is "something inhuman and barbarous and something more than the mere extinguishment of life".
The suffering necessarily involved in the execution of death sentence is not banned by the Eighth Amendment though the cruel form of execution is.
No sustenance can therefore be derived from the Eighth Amendment to the argument that either the death sentence or the method of executing that sentence by hanging is violative of Article 21 on the ground that death sentence is barbarous or that the method of hanging is cruel, inhuman or degrading.
Hanging as a mode of execution is not relentless in its severity.
As Judges we ought not to assume that we are endowed with a divine insight into the needs of a society.
On the contrary, we should heed the warning given by Justice Frankfurter: "As history amply proves, the judi 63 ciary is prone to misconceive the public good by confounding private notions with constitutional requirements".
For these reasons the challenge to the constitutionality of section 354(5) of the Code of Criminal Procedure fails and the writ petitions are dismissed.
Orders whereby the executions of death sentence were stayed are hereby vacated except in W.P. (Crl.) No. 503 of 1983 which will be listed on 27th September, 1983, for being heard on merits.
SLP (Crl.) No. 196 of 1983 is dismissed.
SABYASABHI MUKHARJI, J.
I respectfully agree with the conclusions of my learned brother, the Chief Justice.
I would like, however, to state that in the judgment, my learned brother has observed: "Therefore, as soon as it is shown that the Act invades a right guaranteed by Article 21, it is necessary to enquire whether the State has proved that the person has been deprived of his life or personal liberty according to procedure established by law, that is to say, by a procedure which is just, fair and reasonable.
" I respectfully agree that as soon as it is shown that a Statute or Act in question invades a right guaranteed by Article 21, it is necessary to enquire whether the State has proved that the person has been deprived of his life or personal liberty according to procedure established by law.
I, however, respectfully at present would not express my opinion whether in all such cases, the State has a further initial burden to prove that the procedure established by law is just, fair and reasonable.
With this observation, I respectfully agree with all the other conclusions and observations made by my brother, the learned Chief Justice.
H.L.C. Petitions dismissed.
| The petitioners who had been sentenced to death for the offence of murder were awaiting execution of the sentence.
Their plea was that hanging by rope is a cruel and barbarous method of executing of the sentence and section 354(5) Cr. P.C. which prescribes that method is violative of article 21 of the Constitution The respondents raised a preliminary objection that the question had already been concluded by the decision in Bachan Singh vs State of Punjab, [1983]1 S.C.R. 145.
The objection was overruled.
Counsel for petitioners contended that section 354(5), Cr.
P.C. is bad because it is impermissible to take human life even under the decree of a court since it is human to take life under any circumstances; that by reason of the provision contained in article 21, it is impermissible to cause pain or suffering of any kind whatsoever in the execution of any sentence, much more so while executing a death sentence; that the method of hanging prescribed by section 354(5) for executing the death sentence is barbarous, inhuman and degrading; that it is the constitutional obligation of the State to provide for a humane and dignified method for executing the death sentence, which does not involve torture of any kind; and that if the method prescribed by section 354(5) does not meet this requirement, no death sentence can be executed since no other method for executing that sentenced is prescribed by or is permissible under the law.
Counsel also referred to the judgment in Machhi Singh vs State of Punjab, and suggested that it virtually overrules Bachan Singh.
2 Counsel for respondents contended that a sentence lawfully imposed by a court can and has to be executed, though by causing the least pain and suffering and by avoiding torture or degradation of any kind; that the method prescribed by section 354(5), Cr.
P.C. for executing the death sentence is a humane and dignified method involving the least amount of pain and cruelty; that no other method of executing the death sentence is quicker or less painful; and that article 21 does not postulate that no pain or suffering whatsoever shall be caused in the execution of a sentence lawfully imposed by a court, including the sentence of death.
Counsel further submitted that unless on the face of it, the method prescribed by for executing law a sentence is revolting to conscience, courts must surrender their discretion to legislative judgment when the challenge to the constitutionality of the law is based on considerations which the court is not equipped to evaluate by manageable judicial standards, and contended that the court 's evaluation of the method of hanging prescribed by law shall have to be inevitably subjective, almost to the point of being legislative in character, which must be avoided at all costs.
Dismissing the petitions, HELD: 1.
The method prescribed by section 354(5), Cr.
P.C. for executing the death sentence does not violate the provision contained in article 21 of the Constitution.
[59 E] (a) The material placed before the Court shows that hanging by rope is not a cruel mode of executing the death sentence: the system consists of a mechanism which is easy to assemble; preliminaries to the act are quick and simple and are free from anything that would unnecessarily sharpen the poignancy of the prisoner 's apprehension; the chances of accident during the course of hanging can safely be excluded; the method is quick and certain and eliminates the possibility of a lingering death; unconsciousness supervenes almost instantaneously after the process is set in motion and death follows as a result of dislocation of the cervical vertebrae.
The system of hanging, as now used, avoids to the full extent the chances of strangulation which results on account of too short a drop or of decapitation which results on account of too long a drop.
The mechanics of the method of hanging have undergone significant improvement over the years and hanging has been almost perfected into a science.
The system is consistent with the obligation of the State to ensure that the process of execution is conducted with decency and decorum without involving degradation or brutality of any kind.
At the moment of final impact when life becomes extinct, some physical pain would be implicit in the very process of the ebbing out of life.
But, the act of hanging causes the least pain imaginable on account of the fact that death supervenes instantaneously.
The conclusion that the system of hanging is as painless as is possible in the circumstances, that it causes no greater pain than any other known method of executing the death sentence and that it involves no barbarity, torture or degradation is based on reason, supported by expert evidence and the findings of modern medicine.
[58 C H, 59 A] Report of the Royal Commission on Capital Punishment (U.K.), September, 1953; 35th Report of the Law Commission of India on Capital Punishment, 3 September 30,1967; George R. Scott: Hanging Through the Ages (Torchstream Books, London); J W. Cecil Turner (Ed.) Kenny 's Outlines of Criminal Law, 19th Ed., 1966; Harry Elmer Barnes and Negley K. Teeters: New Horizons in Criminology, 3rd Ed., 1966; U.N. Department of Economic and Social Affairs: Capital Punishment, (New York, 1962); and Bachan Singh; , referred to.
(b) On the question of pain involved in a punishment, the concern of law has to be to ensure that the various steps which are attendant upon or incidental to the execution of any sentence, more so the death sentence, do not constitute punishments by themselves.
Humaneness is the hall mark of civilized laws.
If a prisoner is sentenced to death, it is lawful to execute that punishment and that only.
He cannot be subjected to barbarity, humiliation, torture or degradation before the execution of that sentence, not even as necessary steps in the execution of that sentence.
The process of hanging does not involve any of these directly, indirectly or incidentally.[59 B D] (c) Hanging by rope was the only method of executing the death sentence which was known to the Constituent Assembly and yet it did not express any disapproval of that method, though it touched upon the question of death sentence while dealing with the President 's power of pardon under article 72(1)(c) of the Constitution.
[58 B] (d) The system of hanging by rope is in operation in large parts of the civilized world and there is a responsible body of scientific and legal opinion which holds that hanging by rope is not a cruel mode of executing the death sentence.
[57 H, 58 A] (e) Hanging as a mode of execution is not relentless in its severity.
Judges ought not to assume that they are endowed with a divine insight into the needs of a society; they should heed the warning that, as history amply proves, the judiciary is prone to misconceive the public good by confounding private notions with constitutional requirements.
[62 G H, 63 A] (f) The Court is not required to determine the merits and demerits of the alternative methods of execution which are in vogue elsewhere because the Court cannot substitute any other method of execution for the method prescribed by law.
However, an understanding of the process involved in the competing methods used for executing the death sentence is not altogether pointless because if some other method has a real and definite advantage over a the method of hanging, arbitrary rejection of that method by the state may not answer the constitutional prescription.
However, neither electrocution, nor lethal gas, nor shooting, nor even the lethal injection has any distinct or demonstrable advantage over the system of hanging.
The general belief that death by electrocution is entirely painless is not free from doubt.
That apart, failure of electrical energy.
supplied by commercial undertakings has been considered in America as an impediment in the use of the electric chair.
With frequent failures of electric power in our country, the electric chair will become an instrument of torture.
Lethal injection is by and large an untried 4 method.
The injection is required to be administered intravenously which is a delicate and skilled operation.
The Royal Commission on Capital Punishment (U.K.) was not satisfied that executions carried out by the administration of lethal injections would bring about death more quickly, painlessly and decently in all cases.
Shooting by a firing squad, apart from being unreliable, is an uncivilised method of extinguishing life.
It is the favourite pastime of military regimes which trample upon human rights with impunity.
It is most recklessly and wantonly used for liquidating opposition and smothering dissent in countries which do not respect the rule of law.
Murders by shooting are becoming a serious menace to law and order in our country.
Shooting by the State in order to kill for executing the order of a court will unwittingly confer respectability on the 'shooting to kill ' tactics which are alarmingly growing in proportion, The suggestion that a death convict may be put to sleep by a sleep inducing injection before applying other methods such as electrocution or gas chamber, is not only impracticable but would appear to involve complications and torture to an uncommon degree.
[50 F H, 57 E, B, G H, 56 A B, 56 G, 57 A] (g) Matters of policy are certainly for the legislature to consider and therefore, by what mode or method the death sentence should be executed, is for the legislature to decide.
But the function of the legislature ends with providing what it considers to be the best method of executing the death sentence.
Where the function of the legislature ends, the function of the judiciary begins.
It is for the courts to decide upon the constitutionality of the method prescribed by the legislature for implementing or executing a sentence.
Whether that method conforms to the directs of the constitution is a matter not only subject to judicial review but it constitutes a legitimate part of the judicial function.
The question whether the particular method prescribed by law for executing the death sentence is in consonance with the Constitution inevitably involves a value judgment based upon a comparative evaluation of alternate methods for executing the death sentence.
But more than any such comparative evaluation, the court 's plain and primary duty is to examine whether, even if the method selected by the legislature is the least objectionable, it is still open to the objection that it involves under torture, degradation or cruelty.
The Court 's task will end with pointing out why, if at all, the method at present provided by law is contrary to the mandate of the constitution.
To pronounce upon the constitutionality of the law is not legislating, even if such pronouncement involves the consideration of the evolving standards of the society.
[35 A C; E F] 2.
(a) The contention that it is inhuman to kill under any circumstances and that article 21 imposes a total prohibition on the taking of human life has to be rejected.
If the argument were to be accepted, the imposition of death sentence would become an exercise in futility.
Indeed, if carried to its logical conclusion, the argument will make it impossible to execute any sentence whatsoever, particularly of imprisonment because of every sentence of imprisonment necessarily involves pain and suffering to a lesser or greater degree.
A constitution so carefully conceived as ours cannot be construed to produce such a startling result.
Painless punishment is a contradiction in 5 terms.
If it is lawful to impose the sentence of death in appropriate cases, it would be lawful to execute that sentence in an appropriate manner.
The mandate of article 21 is not that the death sentence shall not be executed but that it shall not, be executed in a cruel, barbarous or degrading manner.
When the sentence of death is constitutionally valid, not even the sophisticated sensitivities can justly demand that those upon whom, the extreme penalty of law is imposed because of the magnitude of their crime should not be made to suffer the execution of that sentence, unaccompanied by torture or degradation of any kind.
If the larger interests of the community as opposed to the interests of an individual require that a death sentence should be imposed in an exceptional class of cases, the same societal interests would justify the execution of that sentence, though in strict conformity with the requirements of article 21.
[59 G, 60 C D, 59 H, 60B F G] (b) The argument that either death sentence is barbarous or that the method of hanging is cruel, inhuman or degrading cannot draw any sustenance from the Eighth Amendment Clause of the U.S. Constitution.
The American Supreme Court has formulated a sophisticated definition of that clause which has a dynamic content.
Several concurring opinions show that, in America, capital punishment is not considered to be violative of the Eighth Amendment.
What the Eighth Amendment prohibits is "something inhuman and barbarous and something more than the mere extinguishment of life".
The suffering necessarily involved in the execution of death sentence is not banned by the Eighth Amendment though the cruel form of execution is.
[62 F G, D E] Kemmler; , ; O ' Neil vs Vermont, 144 U,S. 323; Trop vs Dulles, ; ; and Louisiana vs Resweber, ; ; referred to.
(a) There has to be finality to litigation, criminal as well as civil, if law is not to lose its credibility.
No one of course can question that law is a dynamic science, the social utility of which consists in its ability to keep abreast of the emerging trends in social and scientific advance and its willingness to readjust its postulates in order to accommodate those trends.
But, that is not to say that judgments rendered by this Court after a full debate should be reconsidered every now and then and their authority doubted or diluted.
That would be doing disservice to law since certainty over a reasonably foreseeable period is the hall mark of law.
[11 F G] The question that, in the circumstances mentioned in Bachan Singh, it is permissible to impose the sentence of death for the offence of murder must be treated as concluded and not any longer open to argument.
In Machhi Singh, the learned Judges have but formulated broad guidelines to assist the Courts in deciding the vexed question as to whether the death sentence is at all called for.
Evidently, the judgment does not enlarge the scope of the rule in Bachan Singh by broadening the narrow field of cases which call for the death sentence.
The constraints of Bachan Singh deserve to be preserved but that means that it is only a rare degree of malevolence which invites and justifies the imposition of death sentence.
[11 B D] 6 Bachan Singh vs State of Punjab ; ; and Machhi Singh vs State of Punjab,[1983]; 3 S.C.C. 470 referred to.
(b) Both the majority and the minority in Bachan Singh considered the question of the validity of the death sentence from the procedural aspect also, with special reference to the method of hanging prescribed by law for executing the death sentence.
Nevertheless, the question whether the particular mode of executing the death sentence prescribed by sec.
354(5) Cr. P.C., violates the provisions of article 21 of the Constitution was not directly and substantially in issue in Bachan Singh and it was not considered specifically by the majority as an independent issue.
It would not be proper to sidetrack that the question and refuse to examine it fully because of the incidental consideration which it received in Bachan Singh.[14 D, H, 15 C D] (c) The retribution involved in the theory 'tooth for tooth ' and 'an eye for eye ' has no place in the scheme of civilized jurisprudence and the court cannot turn a deaf ear to the petitioners ' claim for justice on the ground that the enormity of their crimes has resulted in grave injustice to the victims of those crimes.
The court is concerned to ensure due compliance with constitutional mandates, no matter the occasion.
Justice has to be done dispassionately in accordance with the constitutional attitudes whether it is a murdered or a smuggler who asks for it.
Law cannot demand its pound of flesh.[16 E G] Per Chandrachud, C.J. and Pathak, J. (Sabyasachi Mukharji,J. reserving his opinion on the point) In cases arising under article 21 of the Constitution, if it appears that a person is being deprived of his life or has been deprived of his personal liberty, the burden rests on the State to establish the constitutional validity of the impugned law.
[32 F] There is a fundamental distinction between cases arising under article 14 and those which arise under articles 19 and 21.
In the generality of cases under article 14, the challenge is based on the allegation that the impugned provision is discriminatory since it singles out the petitioner for hostile treatment from amongst persons who, being situated similarly, belong to the same class as the petitioner and the petitioner has to plead and prove that there are others who are situated similarly as him and that he is singled out and subjected to unfavourable treatment.
Whether there are other persons who are situated similarly as the petitioner and whether he is subjected to hostile discrimination are questions of fact and the burden to establish the existence of these facts rests on the petitioner.
In a challenge based on the violation of article 19 or article 21 the petitioner has undoubtedly to plead that, for example, his right to free speech and expression is violated or that he is deprived of his right to life or personal liberty.
But once he shows that, which really is not a part of the burden of proof, it is for the State to justify the impugned law or action by proving that, for example, the deprivation of the petitioner 's right to free speech and expression is saved by cl.
(2) of article 19 since it is in the 7 nature of a reasonable restriction on that right in the interests of matters mentioned in cl.
(2), or that, the petitioner has been deprived of his life or personal liberty according to a just, fair and reasonable procedure established, by law.
In cases arising under article 19, the burden is never on the petitioner to prove that the restriction is not reasonable or that the restriction is not in the interests of matters mentioned in cl.
Likewise, in cases arising under article 21, the burden is never on the petitioner to prove that the procedure prescribed by law which deprives him of his life or personal liberty is unjust, unfair or unreasonable.
As soon as it is shown that the Act invades a right guaranteed by article 21 it is necessary to inquire whether the State has proved that the person has been deprived of his life or personal liberty according to procedure established by law, that is to say by a procedure which is first, fair and reasonable.
[23 D H] Any case, even a locus classicus is an authority for what it decides.
It is permissible to extend the ratio of a decision to cases involving identical situations; factual and legal, but care must be taken to see that this is not done mechanically, that is without a close examination of the rational of the decision which is cited as a precedent.
Human mind, trained even in the strict discipline of law, is not averse to taking the easy course of relying on decisions which have become famous and applying their ratio to supposedly identical situations.[21 G H] Saghir Ahmed vs State of U.P., ; , Khyerbari Tea Co. vs State of Assam, ; ; Western U.P. Electric Power & Supply Co. Ltd. vs State of U.P., ; ; Mohd. Faruk vs State of M.P., ; ; Laxmi Khandsari vs State of U.P., ; ; and Bachan Singh vs State of Punjab, ; ; referred to.
Ram Krishna Dalmia vs Justice S.R. Tendolkar, ; ; Mohd, Hamif Quareshi vs State of Bihar; ; ; Madhu Limaye vs Sub Divisional Magistrate, ; ; and Pathumma vs State of Kerala, ; explained and distinguished.
B Baneriji vs Anita Pan, ; ; decided per incurium.
In the instant case the impugned statute, on the face of it, provides for a procedure for extinguishing life.
Therefore, not even the initial obligation to show the fact of deprivation of life or liberty rests on the petitioners.
The State must establish that the procedure prescribed by section 354(5), Cr. P. C. for executing the death sentence is just, fair and reasonable.
[33 A B] Per Sabyasachi Mukharji, J.
As soon as it is shown that a Statute or Act in question invades a right guaranteed by article 21, it is necessary to enquire whether the State has proved that the prisoner has been deprived of his life or personal liberty according to procedure established by law.
However, at present I would not express my 8 opinion whether in all such cases, the State has a further initial burden to prove that procedure established by law is just, fair and reasonable.
[63 E L]
|
Appeals Nos. 333 335 of 1955 and Petitions Nos. 65, 182 and 203 of 1956.
Appeals by special leave from the judgment and order dated April 15, 1955, of the Punjab High Court at Chandigarh in Civil Writs Nos.
131 133 of 1955 and Petitions under Article 32 of the Constitution of India for the enforcement of fundamental rights.
Veda Vyasa, Bhagirath Das and M. L. Kapur for the appellants.
Veda Vyasa, section K. Kapur and N. H. Hingorani, forthe petitioners in Petitions Nos. 65 and 182 of 195.5.
Veda Vyasa, Bhagirath Das and B. P. Maheshwari, for the petitioner in Petition No. 203 of 1956.
section M. Sikri, Advocate General of Punjab, Jindra Lal and T. M. Sen, for respondent No. 2 in the Appeals and respondents Nos. 1 and 2 in the Petitions.
Sadhan Chandra Gupta, Bawa Shiv Charan Singh and Janardhan Sharma, for respondent No. 3 in the appeals and in Petitions Nos. 182 and 203 of 1956.
Porus A. Mehta and T. M. Sen, for the Intervener in Appeal No. 333 of 1955 (Attorney General of India on behalf of the Union of India).
337 Veda Vyasa, section K. Kapur and N. H. Hingorani, for the Interveners in the appeals (petitioners in Petitions Nos. 65 and 182 of 1956).
January 10.
The Judgment of the Court was delivered by BHAGWATI J.
These three appeals with special leave from the orders of the High Court of Punjab and three petitions under article 32 of the Constitution challenge the vires of the (XIV of 1947), hereinafter referred to as the Act.
The appellants in the three appeals are engaged in the manufacture and production of textiles.
There were disputes between them and their workmen, and, by two notifications each dated March 4, 1955, in regard to the first two of them and by a notification dated February 25, 1955, in respect of the third, the State of Punjab, respondent No. 2, referred the said disputes for adjudication to the 2nd Punjab Industrial Tribunal, Amritsar, respondent No. 1, who entered upon the said references and issued notices to the appellants to file their written statements.
The appellants in Civil Appeal No. 335 of 1955 filed their written statement on March 31, 1955, without prejudice to their contentions that respondent No. 2 was not competent to refer the disputes for adjudication by respondent No. I and that respondent No. I had no jurisdiction to entertain the reference.
The appellants in Civil Appeals Nos. 333 and 334 of 1955 were called upon to file their written statements on or before April 23, 1955, which they did raising the same objections as to the competency_ of respondent No. 2 and the jurisdiction of respondent No. 1.
On April 14, 1955, however, the appellants in all the three appeals filed writ petitions in the High Court under article 226 of the Constitution against, inter alia, respondents Nos.I and 2 asking for writs in the nature of prohibition restraining respondent No. 1 from proceeding with the references, writs in the nature of certiorari directing respondent No. 1 to transmit the records of the proceedings for being quashed and writs in the nature of mandamus directing respondent No. 2 43 338 to cancel the notifications under which the said references had been made.
The grounds which were urged in support of these applications were that their mills were controlled industries within the definition of the term contained in el.(ee) of section 2 of the Act as amended by section 32 of Act LXV of 1951, that they were engaged in the production and manufacture of textile goods and were a textile industry within the meaning of the word 'textiles" as mentioned in the First Schedule to Industry (Development and Regulation) Act, 1951, and had been declared an industry of which the Union Government had taken control within the meaning of the said Act, that the disputes purporting to be referred by respondent No. 2 to respondent No. 1 were industrial disputes concerning a controlled industry specified in this behalf by the Central Government and that, therefore, the appropriate Government for the purposes of the Act so far as their mills were concerned was the Union Government and not respondent No. 2 and that respondent No. 2 had no jurisdiction or authority to refer the existing or apprehended disputes between them and their workmen to respondent No. I and the references being invalid there was no jurisdiction in respondent No. 1 to entertain the said references.
These petitions came up for hearing before a Division Bench of the High Court consisting of the learned Chief Justice and Mr. Justice Kapur who dismissed the same in limine observing that they were premature, obviously meaning that respondent No. I could determine the objection in regard to its jurisdiction to entertain the references and unless and until it did so the appellants had no cause of action to file the said petitions.
It appears that on or about April 12, 1955, a Division Bench of the said High Court consisting of the learned Chief Justice and Mr. Justice Falshaw had admitted a writ petition based on the very same grounds and had granted a stay of proceedings before respondent No. 1 therein.
It further appears that on April 18, 1955, the very same Bench which dismissed the petitions of the appellants in limine on April 15, 1955, admitted a writ petition filed by the Saraswati 339 Sugar Syndicate Ltd., inter alia, against respondent No. 2 wherein, besides the grounds urged in their writ petitions, an additional ground questioning the constitutionality of section 10 of the Act had also been urged and ordered the stay of proceedings before the Industrial Tribunal.
The appellants filed on April 18, 1955, applications before the High Court for leave to appeal, to this Court and for stay of further proceedings before respondent No. 1.
Notices were issued by the High Court to the respondents in those applications but stay of further proceedings was refused.
The appellants having come to know of the order passed by the Division Bench of the High Court on April 18, 1955, on the writ petition of the Saraswati Sugar Syndicate Ltd., filed petitions on April 19,1955, for review of the orders dated April 15, 1955, dismissing their writ petitions in limine.
In these petitions for review the appellants, with a view to bring their applications within the ratio of the writ petition of the Saraswati Sugar Syndicate Ltd., alleged that their counsel had inadvertently failed to raise the contention that section 10 of the Act was ultra vires the Constitution.
The High Court was prepared to issue notices to the respondents but was not prepared to grant the stay of further proceedings with the result that on the request of the counsel for the appellants the said petitions for review were dismissed on April 20, 1955.
On April 25, 1955, the appellants filed petitions in this Court for special leave to appeal under article 136 of the Constitution.
In these petitions for special leave, they contended that section 10 of the Act was void and infringed the fundamental right guaranteed under article 14 of the Constitution "being discriminatory in its ambit".
Special leave was granted to all the three appellants by this Court on May 2, 1955, and an order for consolidation of these appeals was made on June 1, 1955.
This plea as to the unconstitutionality of section 10 of the Act was elaborated by the appellants in para 12 of their statement of the case filed before us: " That section 10 of the is also ultra vires of the Constitution of India,as it conflicts with the provisions of article 14 of the 340 Constitution.
The section is discriminatory in ambit and scope.
It confers on the appropriate Government unregulated and arbitrary powers inasmuch as no rules have been made to justify differentiation between parties similarly situated and circumstanced in every respect.
There is no rational basis of classification providing different procedures for dealing with the same or similar matters.
The reference to a Board under section 10 (1) (c) of the Act is certainly more beneficial, speedy, inexpensive and less cumbersome."
Not content with merely challenging the constitutionality of section 10 of the Act, the appellants in Civil Appeal No: 333 of 1955 filed in this Court on October 3, 1956, a petition under article 32 of the Constitution, being Petition No. 203 of 1956, challenging the vires of the whole Act on various grounds which had not been urged in the proceedings taken by the appellants till then.
We shall not enumerate all these grounds but refer at the appropriate place only to those contentions which were urged before us by the learned coun sel at the hearing.
A similar petition under article 32 of the Constitution had been filed by the Atlas Cycle Industries Ltd., on September 15, 1956, being Petition No. 182 of 1956, containing identical grounds of attack against the constitutionality of the Act.
A notification had been issued on April 27, 1956, by the State of Punjab referring the industrial disputes between them and their workmen for adjudication by the 2nd Industrial Tribunal and they asked for a writ of certiorari quashing the said reference and writs of mandamus and/or prohibition directing the State of Punjab to withdraw the said reference from the Industrial Tribunal and prohibiting the Industrial Tribunal from proceeding with the same.
Petition No. 65 of 1956 had been filed on March 21, 1956, by five workmen of the Indian Sugar and General Engineering Corporation.Ltd., carrying on an undertaking in the name and style of the Saraswati Engineering Works.
A notification had been issued by the State of Punjab referring the disputes which had 341 arisen between them and their workmen to the 2nd Industrial Tribunal and one of the matters thus referred for adjudication was whether the workmen dismissed or discharged after July 15, 1955, should be reinstated.
The petitioners were temporary hands employed by the Saraswati Engineering Works in place of the permanent workmen who had been dismissed or discharged after July 15, 1955, and they, in the interests of themselves and 200 other employees who were in the same category, apprehended that if the Industrial Tribunal ordered the reinstatement of the permanent workmen who had been dismissed or discharged, they would be out of employment.
They had apparently the support of the Saraswati Engineering Works who were keen to retain them in their employ and filed the petition challenging the constitutionality of the Act on identical grounds.
Besides thus challenging the vires of the Act, they also urged in their petition that the undertaking was a controlled industry and the appropriate Government which was competent to make the reference was the Union Government and not the State of Punjab.
They also asked for the same reliefs as in Petition No. 182 of 1956.
The Attorney General of India asked for and obtained leave to intervene on behalf of the Union of India at the hearing of the Civil Appeals Nos.
333 to 335 of 1955 and so did the petitioners in both the Petitions Nos.
182 of 1956 and 65 of 1956.
These petitions along with Petition No. 203 of 1956 were set down for hearing and final disposal after the Civil Appeals Nos. 333 to 335 of 1955 and all of them were heard together.
This common judgment will govern the decision in all.
It may be noted at the outset that the question as to the various undertakings being controlled industries and the appropriate Government for making the references of the industrial disputes arising between them and their workmen being the Union Government and not the State of Punjab which was the very basis of the writ petitions filed in the High Court and was also one of the grounds oil which special leave.
to 342 appeal had been obtained from this Court was ultimately abandoned in the course of the hearing before us and nothing more need be said about it.
The only contention which has been urged before us in these three special leave appeals and the three article 32 petitions is in regard to the vires of the Act.
In order to appreciate the grounds of attack against the constitutionality of the Act it is necessary to briefly survey the, provisions of the Act as it stood before the amendments made by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 (XXXVI of 1956).
The Act was passed, as the preamble shows, with the express purpose of making provision for the investigation and settlement of industrial disputes and for certain other purposes therein appearing.
Section 2(j) defines " industry " to mean any business, trade, undertaking, manufacture or calling of employers and includes any calling, ,service, employment, handicraft or industrial occupation or avocation of workmen.
Section 2(k) defines an " industrial dispute " to mean any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or nonemployment or the terms of employment or with the conditions of labour, of any person.
Chapter II of the Act sets out the authorities under the Act and they are (1) The Works Committee, (2) Conciliation Officers,(3) Boards of Conciliation, (4) Courts of Enquiry, and (5) Industrial Tribunals.
These are different authorities with different powers and the purposes for which they are set up and their functions are prescribed in the Act.
The Works Committee consists of representatives of employers and workmen engaged in a particular establishment and is constituted in the prescribed manner in order to promote measures for securing and preserving amity and good relations between the employers and workmen and to that end to comment upon matters of their common interest or concern and endeavour to compose any material difference of opinion in respect of such matters.
The Conciliation Officers are appointed by notification by 343 the appropriate Government charged with the duty of mediating in and promoting the settlement of industrial disputes.
Boards of Conciliation are constituted by notification by the appropriate Government as occasion arises for promoting the settlement of industrial disputes.
Courts of Enquiry are constituted by notification by the appropriate Government as occasion arises for enquiring into any matter appearing to be connected with or relevant to an industrial dispute.
Industrial Tribunals are constituted by the appropriate Government for the adjudication of indus trial disputes in accordance with the provisions of the Act.
Chapter III provides for reference of disputes to Boards, Courts or Tribunals and the relevant portion of section 10 provides as under: " 10.
(1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time, by order in writing (a) refer the dispute to a Board for promoting a settlement thereof; or (b)refer any matter appearing to be connected with or relevant to the dispute to a Court for enquiry ; or (c)refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, to a Tribunal for adjudication: Provided that where the dispute relates to a. public utility service and a notice under section 22 has been given, the appropriate Government shall, unless it considers that the notice ha been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced.
" Chapter IV prescribes the procedure, powers and duties of the several authorities.
The Conciliation Officers are enjoined for the purpose of bringing about a settlement of a dispute, without delay to investigate the dispute and all matters affecting the merits and the right settlement thereof and are also empowered to do all such things as they think fit for the purpose of inducing the parties to come to an amicable settlement 344 of the dispute.
If a settlement of the dispute or of any of the matters in dispute is arrived at in the course of conciliation proceedings, they are to send a report thereof to the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute.
If no such settlement is arrived at, the Conciliation Officers have, as soon as practicable and after the close of the investigation, to send to the appropriate Government a full report setting forth the proceedings and steps taken by them for ascertaining the facts and circumstances relating to the dispute land for bringing about a settlement thereof together with a full statement of such facts and circumstances, their findings thereon, the reasons on account of which, in their opinion, a settlement could not be arrived at and their recommendations for the determination of the dispute.
If, on a consideration of such report the appropriate Government is satisfied that there is a case for reference to a Board or Tribunal.
, it may make such reference.
The Boards of Conciliation to whom a dispute may be referred under the Act are enjoined to endeavour to bring about a settlement of the same and for this purpose they are, in such manner as they think fit and without delay, to investigate the dispute and all matters affecting the.
merits and the right settlement thereof and are also empowered to do all such things as they think fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.
If a settlement of the dispute or of any of the matters is arrived at in the course of the conciliation proceedings they are to send a report thereof to the appropriate Government together with a memorandum of the settlement signed by the parties to the dispute.
If no such settlement is arrived at they are, as soon as practicable after the close of the investigation, to send to the appropriate Government a full report setting forth the proceedings and steps taken by them for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof together with a full statement of such facts and circumstances, their findings thereon the reasons on account of which, in their opinion, a ' 345 settlement could not be arrived at and their recommendations for the determination of the dispute.
The Courts of Enquiry are enjoined to enquire into the matters referred to them and report thereon to the appropriate Government.
The Industrial Tribunals to whom an industrial dispute may be referred for adjudication are to hold their proceedings expeditiously and, as soon as, practicable on the conclusion thereof, submit their award to the appropriate Government.
Section 19, sub sections(3), (4) and (6)prescribe the period of operation of awards: " 19.
(3) An award shall, subject to the provisions of this section, remain in operation for a period of one year: Provided that the appropriate Government may reduce the said period and fix such period as it thinks fit: Provided further that the appropriate Government may, before the expiry of the said period, extend the period of operation by any period not exceeding one year at a time as it thinks fit so, however, that the total period of operation of any award does not exceed three years from the date on which it came into operation.
(4) Where the appropriate Government, whether of its own motion or on the application of any party bound by the award, considers that since the award was made, there has been a material change in the circumstances on which it was based, the appropriate Government may refer the award or part of it to a Tribunal for decision whether the period of operation should not, by reason of such change, be, shortened and the decision if the Tribunal on such reference shall subject to the provision for appeal, be final.
(6) Notwithstanding the expiry of the period of operation under sub section (3), the award shall continue to be binding on the parties until a period of two months has elapsed from the date on which notice is given by any party or parties intimating its intention to terminate the award." Chapter V contains provisions in regard to the proof strikes and outs and declares what are illegal strikes and lock outs for the purpose of the Act, 44 346 Chapter V A was introduced by Act XLIII of 1953 and contains provisions in regard to the lay off and retrenchment of workmen.
The other provisions of the Act are not relevant for the purpose of this enquiry and need not be referred to.
It follows from this survey of the relevant provisions of the Act that the different authorities which are constituted under the Act are set up with different ends in view and are invested with powers and duties necessary for the achievement of the purposes for which they are set up.
The appropriate Government is invested with a discretion to choose one or the other of the authorities for the purpose of investigation and settlement of industrial disputes and whether it sets up one authority or the other for the achievement of the desired ends depends upon its appraisement of the situation as it obtains in a particular industry or establishment.
The Works Committees are set up with the object of avoiding such a clash of interest or material differences of opinion as would otherwise lead to industrial disputes.
If the measures adopted by the Works Committees do not achieve the end in view and industrial disputes arise or are apprehended to arise between the employers and the workmen, Conciliation Officers may be appointed by the appropriate Government charged with the duty of mediating in and promoting settlement of industrial disputes.
If the Conciliation Officers succeed in bringing about a settlement between the employers and the workmen, such settlements are to be signed by the parties to the disputes ; but if in spite of the endeavours of the Conciliation.
Officers properly directed in that behalf no settlement is arrived at between the parties, the Conciliation Officers are to send a full report in the manner indicated above so that the appropriate Government may have before it complete materials in order to enable it to come to a conclusion whether there is a case for reference to a Board or Tribunal at the case may be.
If the appropriate Government is satisfied that there is a case for reference to, a Board of Conciliation, it may constitute such Board for promoting the settlement of the industrial dispute consisting of a Chairman and 2 or 4 other members 347 as it thinks fit, charged with the duty of doing all such things as it thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement of the dispute.
If the Board succeeds in arriving at a settlement, a report thereof together with a memorandum of the settlement will be sent by it to the appropriate Government but if no such settlement is arrived at the Board will, send to the appropriate Government a full report in the manner indicated above including its recommendations for the determination of the dispute.
It may be noted that a reference to the Board of Conciliation is but a preliminary step for the settlement of the industrial dispute and the report made by it in the event of a failure to bring about such settlement will furnish materials to the appropriate Government to make up its mind whether it will refer the dispute for adjudication to an Industrial Tribunal.
Before, however, any such reference is made by the appropriate Government it may set up a Court of Enquiry for the purpose of enquiring into any matter appearing to be 'connected with or relevant to an industrial dispute.
The Court of Enquiry will enquire into those matters and report thereon to the appropriate Government within six months from the commencement of the enquiry.
That report will furnish materials to the appropriate Government for finally determining whether the industrial dispute shall be referred by it for adjudication to the Industrial Tribunal.
It may be that the report of the Court of Enquiry discloses circumstances under which the appropriate Government considers that it is not necessary to refer the industrial dispute for adjudication to the Industrial Tribunal.
In that event the matter will end there and.
the appropriate, Government may await further developments before referring the industrial dispute for adjudication to the Industrial Tribunal.
If,, on the other hand, the materials embodied in the report of the Court of Enquiry disclose circumstances which make it necessary for the appropriate Government to refer the industrial dispute for adjudication to the Industrial Tribunal, the appropriate Government will constitute an Industrial Tribunal for adjudication 348 of the industrial dispute in accordance with the provisions of the Act.
The Industrial Tribunal would then adjudicate upon such dispute and submit its award to the appropriate Government.
These are the steps which are contemplated in the manner indicated in section 10 of the Act for reference of disputes to Boards, Courts or Tribunals.
It is not necessary that all these steps should be taken seriatim one after the other.
Whether one or the other of the steps should be taken by the appropriate Government must depend upon the exigencies of the situation, the imminence of industrial strife resulting in cessation or interruption of industrial production and breach of industrial peace end angering public tranquility and law and order.
If the matter brooks delay the appropriate Government may start conciliation proceedings culminating in a reference to a Board of Conciliation and also Court of Enquiry, if need be, before a fulfledged.
reference is made to.
an Industrial Tribunal If, on the other hand, the matter brooks no, delay the appropriate Government may possibly refer the dispute to a Board of Conciliation before referring it for adjudication to an Industrial Tribunal or may straightaway refer it for adjudication by the Industrial Tribunal.
What step would be taken by the appropriate Government in the matter of the industrial dispute must, therefore, be determined by the surrounding circumstances, and the discretion vested in the appropriate Government for setting up one or the other of the authorities for the purpose of investigation and settlement of industrial disputes must be exercised by it having regard to the exigencies of the situation and the objects to be achieved.
No hard and fast rule can be laid down as to the setting up of one or the other of the authorities for the purpose of bringing about the ,desired end which is the settlement of industrial dis putes and promotion of industrial peace and, it is hardly legitimate to say that such discretion as is vested in the appropriate Government will be exercised "with an evil eye and an unequal hand.
" It is contended in the first instance that the provisions of the Act are violative of the fundamental 349 rights enshrined in article 14 and article 19(1) (f) and (g) of the Constitution ; that it is open to the appropriate Government to differentiate between the parties ,similarly placed and circumstanced in every respect and in the absence of any rules made in this behalf the appropriate Government has unregulated and arbitrary powers to discriminate between the parties; that there is no rational basis of classification providing different treatment for different parties and it, is open to the appropriate Government, in one case, to refer the industrial dispute to a Court of Enquiry, and in another case to refer it to an Industrial Tribunal and that the procedures before the Courts of Enquiry and before the Industrial Tribunals are different, the one before the Courts of Enquiry being less onerous and less: prejudicial to the parties than that before the Industrial Tribunals.
It is submitted that the reports of the Courts of Enquiry are quite innocuous whereas the awards of the Industrial Tribunals are binding on the parties and are.
backed up by sanctions behind them, and in regard to the, periods of operation also, it is open to the appropriate Government, in one case to reduce the same to an extent which will make them negligible in point, of time whereas in another case it is open to it to extend the periods even.
upto three years from the dates on.
which the awards came into operation and the appropriate Government may, in the exercise of its unfettered and uncontrolled discretion, adopt different measures in the case of different parties so as to discriminate between them and work to the prejudice of those less fortunately,situated.
It is also contended that these discriminatory provisions being inextricably interwoven with the rest of the provisions of the Act or being such that the Central Legislature would not have enacted the rest of the provisions of the Act without including the same therein, the whole of the Act is ultra vires the Constitution.
We are unable to accept these contentions.
Having regard to the provisions of the Act hereinbefore set out it is clear that section 10 is not discriminatory in its ambit and the appropriate Government is at liberty 350 as and when the occasion arises to refer the industrial disputes arising or threatening to arise between the employers and the workmen to one or the other of the authorities according to the exigencies of the situation.
No two cases are alike in nature and the industrial disputes which arise or are apprehended to arise in particular establishments or undertakings require to be treated having regard to the situation prevailing in the same.
There cannot be any classification and the reference to one or the other of the authorities has necessarily got to be determined in the exercise of its best discretion by the appropriate Government.
Such discretion is not an unfettered or an uncontrolled discretion nor an unguided one because the criteria for the exercise of such discretion are to be found within the terms of the Act itself.
The various authorities are to be set up with particular ends in view and it is the achievement of the particular ends that guides the discretion of the appropriate Government in the matter of setting up one or the other of them.
The purpose sought to be achieved by the Act has been well defined in the preamble? to the Act.
The scope of industrial disputes is defined in section 2(k) of the Act and there are also provisions contained in the other sections of the Act which relate to strikes and lock outs, lay off and retrenchment as also the conditions of service, etc., remaining unchanged during the pendency of proceedings.
These and analogous provision,s sufficiently indicate the purpose and scope of the Act as also the various industrial disputes which may arise between the employers and their workmen which may have to be referred for settlement to the various authorities under the Act.
The achievement of one or the other of the objects in view by such references to the Boards of Conciliation or Courts of Enquiry or Industrial Tribunals must guide and control the exercise.
of the discretion in that behalf by the appropriate Government and there is no scope, therefore, for the argument that the appropriate Government would be in a position to discriminate between one party and the other.
351 Apart from the references to be thus made to the Boards of Conciliation, Courts of Enquiry or Industrial Tribunals, the appropriate Government is also given the powers to prescribe the period of duration of the award made by the Industrial Tribunal.
Normally the award is to be in operation for one year from the date of its commencement.
The circumstances, however, may have changed between the date of the reference and the date of the, award and power is thus given to the appropriate Government to reduce the said period and fix such period as it thinks fit.
Power is also given to the appropriate Government, if the circumstances warrant that decision, to extend the period of operation by any period not exceeding one year at a time as it thinks fit before the expiry of the normal period of one year , provided however that the total period of operation of any award does not exceed three years from the. date on which the same came into operation.
This power is to be exercised, if, in the opinion of the appropriate Government, the circumstances have not so changed as to warrant the parties to the industrial dispute to ask for a change in the terms of the award and in that event the award may continue to be in operation for the maximum period of three years from the date of its commencement.
The case in which there has been a material change in the circumstances on which the award has been based is mentioned in section 19(4) of the Act and there the appropriate Government, whether of its own motion or on an application of any of the parties bound by the award is empowered to refer the award or a part thereof to a Tribunal if it is satisfied about such material change in the circumstances for a decision whether the period of operation should not by reason of such change be shortened and the decision of the Tribunal on such reference, subject to the provision for appeal, is declared to be final.
It appears, therefore, that all the various possibilities are thought of by those who framed this legislation and wide discretion has been given to the appropriate Government to same having regard to the case or 352 to refer the question of the reduction of the period of operation to an Industrial Tribunal in case there has been a material change in the circumstances on which the award was based.
Here also it cannot be urged that there is an unguided and unfettered discretion in the matter of changing the period of operation of the award.
The appropriate Government cannot merely by its own volition change the period without having regard to the circumstances of a particular case.
There is no warrant for the suggestion that such discretion will be exercised by the appropriate Government arbitrarily or capriciously or so as to prejudice the interest of any of the parties concerned.
The basic idea underlying all the provisions of the Act is the, settlement of industrial disputes and the promotion of industrial peace so that production may not be interrupted and the community in general may be benefited.
This is the end which has got to be kept in ' view by the appropriate Government when exercising the discretion which is vested in it in the matter of making the reference to one or the other of the authorities under the Act and also in the matter of carrying out the various provisions contained in the other sections of the Act including the curtailment or extension of the period of operation of the award of the Industrial Tribunal.
We are, of opinion that there is no substance in the contention urged before us that the relevant provisions of the Act and in particular a. 10 thereof are unconstitutional and void as infringing the fundamental rights guaranteed under article 14 and article 19 (1) (f) and (g) of the Constitution.
If these provisions are thus intra vires there is no need to consider the further argument advanced before us that these provisions are so inextricably interwoven with the other provisions of the Act or are such that the Legislature would not haven acted the other provi sions of the Act without, :incorporating the same therein.
It is next contended that the Industrial Tribunals to whom industrial disputes are referred for adjudication by the appropriate Government are legislating in the guise of adjudication and this amounts to delegation 353 of the powers of legislation which it was not competent to the Central Legislature to do.
The argument is that the Industrial Courts 'are not bound to follow the provisions of the ordinary law of the land as enacted in the Indian Contract Act, the Payment of Wages Act, the Workmen 's Compensation Act, the Indian Limitation Act and the like, but are authorised by the terms of the Act to lay down their own code of conduct in regard to industrial relations and their own policy in regard to the promotion of industrial peace.
This, it is submitted is legislation and the Legislature hat in effect abdicated its powers in favour of the Industrial Courts.
The provisions in regard to reinstatement of dismissed or discharged employees, the provisions in regard to lay off and retrenchment and the provisions in regard to strikes and lock outs, amongst others, are pointed out as introducing provisions contrary to the positive law of the land and as laying down a code of conduct or policy, and reference is made in this behalf to a decision of the Federal Court in Western India Automobile Association vs Industrial Tribunal, Bombay, and Others (1) and two decisions of the Madras High Court, viz., The Electro Mechanical Industries Ltd., Madras vs The Industrial Tribunal No. 2 for Engineering Firms and Type Foundries, Fort St. George, Madras, and Another(1) and Shree Meenakshi Mills Ltd. vs State of Madras (3).
It has to be remembered, however, that 'the functions of the Industrial Tribunals, while adjudicating upon the industrial disputes referred to them for adjudication, are quite different from those of arbitration tribunals in commercial matters.
As has been observed by Ludwig Teller in 'Labour Disputes and Collective Bargaining ', Vol. 1, p. 536: " Then too, industrial arbitration may involve the extension of an existing agreement, or the making of a new one, or in general the creation of new obligations or modifications of old ones, while commercial arbitration generally concerns itself with interpretation of (1)[1949] F.C.R. 321.
(3)[1951] IT M.L.J. 382.
(2) [1950] II M.L.J.479.
354 existing obligations and disputes relating to existing agreements.
" It was also observed by the Privy Council in Labour Relations Board of Saskatchewan vs John East Iron Works, Ltd.(1), while referring to a claim for reinstatement by a dismissed employee as one of the typical matters in dispute between employers and employees: " The jurisdiction of the Board (Labour Relations Board). . is not invoked by the employee for the enforcement of his contractual rights: those, whatever they may be, he can assert elsewhere.
But his reinstatement, which the terms of his contract of employment might not by themselves justify, is the means by which labour practices regarded as unfair are frustrated and the policy of collective bargaining as a road to industrial peace is secured.
It is in the fight of this new conception of industrial relations that the question to be determined by the Board must be viewed."
After quoting these observations of the Privy Council, Rajamannar, C. J., pointed out in Shree Meenakshi Mills Ltd. vs State of Madras (2) at p. 388: " The essential object of all recent labour legislation has been not so much to lay down categorically the mutual rights and liabilities of employer and employees as to provide recourse to a given form of procedure for the settlement of disputes in the interests of the maintenance of peaceful relations between parties, without apparent conflicts such as are likely to interrupt production and entail other dangers.
It is with this object that in the United States there has been legislation arranging for the adjustment of conflicting interests by collective bargaining.
In Great Britain there have been Acts like the Industrial Courts Act, 1919, which provides for Industrial Courts to enquire into and decide trade disputes.
There is also provision for Conciliation Boards under the Conciliation Act, 1896.
In fact, our is modelled on these two British Acts.
" (1) (2) [1951] II M.L.J. 382.
355 This being the object of the enactment of the Act by the Central Legislature, the powers vested in the Industrial Tribunals in the matter of the settlement of industrial disputes referred to them for adjudication, wide though they may be but guided as they are by considerations of policy as indicated above, can hardly be characterised as legislative powers.
No doubt they lay down certain general principles to be observed in regard to the determination of bonus, reinstatement of dismissed or discharged employees and other allied topics but they are enunciated mainly with the object of promoting industrial peace while settling particular industrial disputes referred to them.
These principles or rules of conduct, though they are applied as precedents by the Industrial Tribunals while adjudicating upon other similar industrial disputes referred to them, are not rules of law strictly so called and do not amount to legislation by the Industrial Tribunals.
Even if the analogy of the Court,% of Law be applied to the Industrial Tribunals, the Industrial Tribunals at best lay down or declare what the principles or the rules of conduct governing the relations between employers and the employees should be.
A declaration of the principles or rules of conduct governing the relations between the parties appearing before the Industrial Tribunals is quite different from legislation which would be binding on all parties and indeed there is no provision in the Act which confers on the Industrial Tribunals either the power to make rules which would have statutory effect or the power to legislate in regard to certain matters which crop up between employers and employees.
In the absence of any such provision, the mere fact that the Industrial Tribunals, while pronouncing awards in the several industrial disputes referred for their adjudication by the appropriate Government, lay down certain principles or rules of conduct for the guidance of employers and employees, does not amount to exercise of any legislative power and no question of their being invested with.
any legislative powers can arise.
So far as delegated legislation is concerned, abstract definitions of the difference between the judicial and 356 the legislative functions have been offered (See the distinction drawn by Mr. Justice Field in the SinkingFund case (1)), but they are of little use when applied to a situation of complicated facts.
The function of a Court is to decide cases and leading jurists recognize that in the decision of many cases a Court must fill interstices in legislation.
A legislator cannot anticipate every possible legal problem; neither can he do justice in cases after they had arisen.
This inherent limitation in the legislative process makes it essential that there must be some elasticity in the judicial process.
Even the ordinary courts of law apply the principles of justice, equity and good conscience in many cases; e. g., cages in tort and other cases where the law is not codified or does not in terms cover the problem under consideration.
The Industrial Courts are to adjudicate on the disputes between employers and their workmen etc., and in the course of such adjudication they must determine the "rights" and "wrongs" of the claim,% made, and in so doing they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining.
The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience.
It is not necessary to discuss the various authorities to which we have been referred on the nature and scope of the legislative process.
Suffice it to say that there is neither legislation nor delegated legislation in the awards which are pronounced by the Industrial Tribunals while adjudicating upon the industrial disputes referred to them for adjudication and this contention is devoid of any force.
It is lastly contended that the Act was not within the legislative competence of the Central Legislature inasmuch as the definition of the term " industry " in (1) ; , 761 ; ; , 5i6.357 section 2(j) of the Act comprises industrial as well as non-industrial concerns and the Act which was expressly enacted with the object of investigation and settlement of industrial disputes is not covered by Entry 29 of List III of the Seventh Schedule to the Government of India Act, 1935.
That Entry relates to ",Trade unions; industrial and labour disputes" and it is urged that industrial disputes being the subject of legislation, there was no warrant for defining the term ,industry " so as to include therein labour disputes and those too in non industrial concerns.
The definition of industry contained in section 2(j) of the Act being comprehensive enough to include labour disputes in non industrial concerns, it is not possible to separate the ultra vires part of that definition from the intra vires part of it with the result that the whole of the definition must be held to be ultra vires and in so far as it permeated the whole of the Act, the Act as a whole should be declared void.
This argument is sought to be supported by drawing our attention to certain decisions of the Industrial Tribunals which have included hospitals, educational institutions And even the business of Chartered Accountants within the definition of " industry " contained in the Act and it is urged that if such non industrial concerns are also included in the definition of the term industry.
", the Act is certainly ultra vires Entry 29.
We need not pause to consider whether the decisions of the Industrial Tribunals above referred to are correct.
That will have to be done when the question is raised directly before us for adjudication.
The fact that the Industrial Tribunals have put an extended construction on the term " industry " is no reason for holding that the definition itself is bad or ultra vires.
what we have got to see is whether the definition of the term " industry " is within the legislative competence of the Central Legislature and on a prima facie reading of the same we are not prepared to say that the same is unwarranted or not covered by Entry 29.
A wrong application of the definition to cases which are not strictly covered by it cannot vitiate the definition if otherwise it is not open to challenge.
It 46 358 should be noted that, according to the preamble, the Act was enacted not only for settlement of industrial disputes but for other purposes also.
It is open to the respondents also to justify the definition of the term " industry " as contained in section 2(j) of the Act by having resort to Entry 27 of the same List which refers to ,Welfare of labour; conditions of labour ; provident funds; employers ' liability and workmen 's compensation; health insurance, including invalidity pensions; old age pensions The definition of the term " industry " including as it does any calling, service, employment, handicraft, or industrial occupation or avocation of workmen, would, therefore, be justified under this Entry even if the same is not covered by Entry 29 above referred to.
The Entries in the Legislative Lists should not be given a narrow construction, they include within their scope and ambit all ancillary matters which, legitimately come within the topics mentioned therein.
In the matters before us, moreover, the concerns or undertakings are all industrial concerns and fall squarely within the definition of the term " industry " strictly so called and it is not open to the pursuers, situated as they are, to challenge the same.
This contention also has no substance and must be rejected.
It, therefore, follows that the Act is intra Vires the Constitution and Civil Appeals Nos. 333,334 and 335 of 1955 as also Petitions Nos. 203, 182 and 65 of 1956 must be dismissed.
There will, however, be one set of costs payable by the appellants in Civil Appeals Nos. 333 to 335 of 1955 to the respondents therein So far as Petitions Nos.
203 of 1956, 182 of 1956 and 65 of 1956 are concerned, each party will bear and Pay its respective costs thereof.
Appeals and Petitions dismissed.
| Appellant joined service as suspension in the year 1953 in what is styled as Military Engineering Service.
He came to be promoted as Assistant Executive Engineer in 1962.
In the seniority list of AEE drawn up in the year 1963 he was shown at serial No. 357.
In the seniority list of 1967 the appellant 's name was found at serial No. 234.
But as a result of the decision in Bachan Singh 's case the Union Government set aside the seniority lists of 1963 and 1967/68 and drew up a Fresh list on the criteria drawn from the decision in Bachan Singh 's case.
In the seniority list so drawn, the appellant 's name did not find a place at all because he was pushed down, treating still as surplus, after applying the quota from the date of the constitution of the service itself in 1951, applying the ratio of 9:1 between the direct recruits and the promotes.
If he were to be treated as surplus in this manner the appellant cannot be adjusted and treated as a member till 1989 by which he may retire, of the service within the definition of that expression found in the Military Engineers Services Rules (Recruitment, Promotion and Seniority) Rules 1949 as amended from time to time.
The Union of India understood the decision in Bachan Singh 's case to mean that there was a quota for recruitment in the cadre of AEE in MES Class I of 9 direct recruits to one promotee (9:1) since 1951 and that the quota must lead to rota for confirmation and thus redraw the seniority list with the startling result of the appellant and several others similarly situated unable to get a berth at all.
The appellant therefore, filed a writ petition No. 4293/79 questioning the validity and legality of the revised seniority list exhibit 'D ' circulated with letter dated June 14, 1974 and to cancel the panel af promotion prepared and communicated in E,E.C 's proceedings No. 65020/EE/74/EIR/dt January 13.1975 937 drawn up an the basis of the impugned revised seniority list.
The writ petition having been dismissed, the appellant has come up in appeal by special leave.
A Allowing the appeal, the Court ^ HELD :1.
The seniority lists of 1963 and 1967168 were quite legal and valid and hold the field till 1969 having been drawn up on the basis of the principle which satisfies the test of Article 16.
Their revision can be made in respect of members who joined service after 1969 and the period subsequent to 1969.
[963 E F] 2.1 The seniority list 'exhibit D" circulated with the letter dated June 4, 1974 and the panel for promotion included in E E C 's proceedings No. 65020/EE/74/EIR dated January 13,1975 drawn up on the basis of that list are incorrect and stem from a misunderstanding and misinterpretation or the Supreme Court 's decision in Bachan Singh and Anr.
vs Union of India and Ors. ; [965 H, 906 A] 2.2 'There was no justification for redrawing the seniority list in 1974 affected persons recruited or promoted prior to 1969 when the rules acquired statutory character.
No doubt, it is open to the Government to prescribe principles for determining inter se seniority of persons belonging to the same service or cadre except that any such principle must meet the test of Article 16.
It is equally open to the Government to retrospectively revise rules, if the same does not adversely affect vested rights.
But if the rule for determining inter se seniority is revised or a fresh rule is framed, it must be constitutionally valid.
The criterion adopted is illegal and valid.
It overlooks the character of the appointments made during the period 1959 to 1969.
lt treats valid appointments as doubtful validity.
It pushes down persons validly appointed below those who were never in service and for reasons unknown with retrospective effect i.e. from 1951.
1965 G H, 966 B C] 3.
In Bachhan Singhs case, the Supreme Court, after reviewing the History of the MES rules from 1949 to 1969 held as follows: F (i) The '1949 Rules ' and the subsequent amendments acquired statutory character in 1969 because as a result of 1969 amendment, the entire body of rules of Class I became statutory rules by incorporation and till then they we e mere administrative instructions.
[952 A] (ii) Under rules 3 and 4 of the 1949 Rules, the recruitment to MES Class I could be made from two sources only, namely, by competitive examination held in India in accordance with Part II of the Rules, which makes extensive provisions for holding examination including the eligibility for admission to the same, and by promotion in accordance with Part II of the Rules.
[952 B] (iii) During the years 1962, 1963 and 1964 particularly and until the year 1969, the Class l Service.
Rules were not statutory in character.
The Union Government relaxed the Rules both in regard to recruitment by interview 938 and in regard to the quotas fixed by the Rules for direct recruitment and A recruitment by promotion to Class I Service, the quota rule being 9:1 as per Rule 4.
[953 A B, D] (iv) In 1962, there was a state of emergency.
Engineers were immediately required to fill the temporary posts in Class I service.
To meet the emergency the Union Government in consultation with the Union Public Service Com mission decided to directly recruit candidates by advertisement and selection by interview only by the Union Public Service Commission.
The Government with the aid of selection and interview by the UPSC directly recruited some respondents to Class I service in the years 1962,1963 and 1964.
[953 D E] (v) In respect of the vacancies that occurred between 1951 and 1971, because of the emergency, the quota rule for filling them was ignored both for departmental promotees and direct recruitment; and [953 E G] (vi) Therefore, the appointment of those direct recruits who were appointed after interview by the Union Public Service Commission, that is by a method not permitted by the rules was valid and legal in as much as that was done in relaxation of the rules both as to competitive examination and the promotions were given after relaxing the quota rule.
'I he direct recruits who were appointed by interview did fall within the class of direct recruits.
[954 B C] (vii) Rule 24 which was introduced in 1967 conferred power on the Union Government for the reasons to be recorded in writing and after consultation with the Union Public Service Commission to relax all or any of the rules with respect to class or category of persons posts.
As the 1949 rules were non statutory in character till 1969, the Government did make the recruitments from both sources after exercising the said power to relax the rules.
[954 G, 955 A, B] 4.1 If Rule 3 of M.E.S. (R.P.S.) Rules provided methods of recruitment indicating the sources from which recruitment could be made and if rule confers discretion on Government to make recruitment from either source because Rule 4 opens with a limitation, namely, that it is subject to Rule 3, now, if as held in Bachan Singh 's case, "1949 Rules", while prescribing the quota conferred power on the Union Government to make recruitment in relaxation of the rules, it is implicit in this power to make recruitment in relaxation of the quota rule and it is admitted that because of the emergency and because of the exigencies of service, recruitment was made in relaxation of the rules, in this case.
It is this emergency and the dire need of urgently recruiting engineers which led the Government to make recruitment in relaxation of quota rule by foregoing the competitive examination and promoting subordinate ranks to class I service.
Petitioners and similarly situated persons were thous promoted to meet the dire need of service in felaxation of the quota rule.
[955 F G] 4.2 It is true that where the rule provides for recruitment from two sources and simultaneously prescribes quota, unless there is power to relax the rule any recruitment in excess of the quota from either of the sources could 939 be illegal and the excess recruits unless they find their place by adjustment in subsequent years in the quota, would not be members of the service.
[955 G, H, 956 A] S.G. Jaisinghani vs Union of India ; at p. 718; B.S. Gupta vs Union of India (1st Gupta 's case), Suppl.
SCR 49; B.S. Gupta vs Union of India (2nd Gupta 's case ) ; ; referred to.
4.3 But, when recruitment is from two independent sources, subject to prescribed quota, but the power is conferred on the Government to make recruitment in relaxation of the rules, any recruitment made contrary to the quota rules would not be invalid, unless it is shown that the power of relaxation was exercised, malafide, that is not the contention in this case nor voiced in Bachan Singh 's case.
[957 C E] N.K. Chauhan & Others vs State of Gujarat and Others, ; ; referred to.
4.4 Now, if recruitment contrary to Rule 3, namely by interview by the Union Public Service Commission, which is not the recognised mode of recruitment, is held valid in Bachan Singh 's case on the ground that the same emergency compelled the Government to recruit by promotion engineers to the post of AEE class I in excess of the quota by exercising the power of relaxation and such recruitment ipso facto would be valid.
The promotees being validly promoted as the quoted rule was relaxed would become the members of the service.
[957 G H, 958 A] 4.5 The 1949 Rules do not throw any light on the composition of the service, except the fact that the expression "service" has been defined to mean Military Engineering Service, Class I.
If the recruitment is made from either of the sources and is otherwise legal and valid, persons recruited to temporary posts would nonetheless be members of the service.
Keeping in view the exigencies of service and the requirements of the State, unless it is made clear to the contrary that the temporary posts are fir a certain duration or the appointments to temporary posts are of an ad hoc nature till such time as recruitment according to rules is made.
In the absence of any such provision, persons holding permanent and temporary posts would become the members of the service provided the recruitment to the temporary posts is legal and valid.
Once the recruitment is legal and valid, there is no difference between the holders of permanent posts and temporary posts in so far as it relates to all the members of the service.
[958 B D] In the instant case, the question whether the vacancies were in the permanent strength or in the temporary cadre is irrelevant because none of the appellants and others similarly situated is reverted on the ground that no more vacancy is available.
[958 A] S.B. Patwardhan & Ors vs State Maharashtra & Ors, ; @ 795 followed.
940 5:1 It is well recognised principle of service jurisprudence that any rule A of seniority has to satisfy the test of equality of opportunity in public service as enshrined in Article 16.
Equally yet well recognised canon is that in the absence of any other valid rule for determining inter se seniority of members belonging to the same service the rule of continuous uninterrupted service since the entry would be valid and would satisfy the test of Article 16.
Apart from this general principle for determining inter se seniority in the instant case, there is a specific rule namely para 3(iii) of Appendix V of 1949 Rules, governing inter se seniority between direct recruits and promotees in MES, Class I Service and it was in force till 1974 when the impugned list was drawn up.
[960 F H] 5:2 In para 3(iii) of Appendix V of 1949 Rules, it was provided that a roster shall be maintained indicating the order in which appointments are to be made by direct recruitment and promotion in accordance with the percentages fixed for each method of recruitment in the recruitment rules.
The relative seniority of promotees and direct recruits shall be determined by the dates on which the vacancies reserved for the directs and the promotees occur.
This rule ' was related to the quota of 9:1 between direct recruits and promotees prescribed in Rule 4.
[951 A C] 5:3 A combined reading of Rule 4 and para 3(iii) of Appendix V would clearly show that a roster has to be maintained consistent with the quota so that the relative inter se seniority of promotees and direct recruits to be deter mined by the date on which vacancy occurred and the vacancy is for the direct recruit or for the promotee.
If quota prescribed by rule 4 was adhered to or was inviolable, the rule of seniority enunciated in para 3(iii) of Appendix V .
will have to be given full play and the seniorily list has to be drawn in accordance with it.
But as quota rule was directly inter related with the seniority rule and once the quota rule gave way, the seniority rule enunciated in para 3(iii) of Appendix V became wholly otiose and ineffective.
[961 C E] It is well recognised that where the quota rule is linked with the seniority rule, if the first breaks down or is illegally not adhered to giving effect to the second would be unjust, iniquitous and improper In the instant case, therefore, once time quota rule was wholly relaxed between 1959 and 1969 to suit the requirement of service and the recruitment made in relaxation of the quota rule and the minimum qualification rule for direct recruits is held to be valid, no effect can be given to the seniority rule enunciated in para 3(iii), Which was wholly inter linked with the quota rule and cannot exist apart from 'J it on its own strength.
Further, this position is impliedly accepted by the Union Government and is implicit in the seniority lists prepared in 1963 and 1967 68 in respect of AEES because both these seniority lists were drawn up in accordance with the rule of seniority enunciated in Annexure 'A ' to Army Instruction No. 241 of 1950 dated September 1, 1949 and not in compliance with para 3(iii) of Appendix V. [961 E H, 962 A B] B. section Gupta vs Union of India (1st Gupta 's case) referred to.
941 5:4 The principle of seniority enunciated in Army Instruction 241 of 1950 is that the rule for determining inter se seniority in the cadre of Assistants A should generally be taken as the model in framing the rules of seniority for other services and in respect of persons employed in any particular grade seniority should as a general rule be determined on the basis of the length of service in that grade as well as service in an equivalent grade irrespective of whether the latter was under the Central or provincial government in India or Pakistan.
This was the rule of seniority which would be applicable in the absence of any other rule specifically enacted for MES class I service.
Even a plausible contention that the seniority rule enunciated in para 3(iii) of Appendix V of 1949 Rules was the one specifically enacted for MES class I service and this special rule would prevail over the general rule issued in Army Instruction 241 would be of no avail in as much as (1) the rule in para 3 (iii) gave way when the quota rule was relaxed and (ii) in all the subsequent rules of 1953, 1961 and 1962, it was clearly stated that the "principles for determining seniority are under consideration".
[962 C A] 6:1 The two fundamental basic assumptions on which the impugned seniority list was drawn up are wholly untenable and contrary to the relevant rules.
The first assumption that there was a rigid quota rule and that the recruitment in excess of the quota would be invalid and the excess recruits from either source will have to be adjusted and regularised in succeeding years, was probably due to the authorities having been influenced by the observations in Jai Singhani 's case and the two successive B. section Gupta 's cases, all of which have no application to the facts of the present case.
The second assumption that there was an inviolable quota rule which could not be relaxed was due to overlooking the position that once the quota rule was relaxed, the rota for confirmation disappeared.
In the absence of any other rule coupled with the Army Instructions, upto 1968 continuous officiation would be the only available rule for determining the inter se seniority.
Further as far as the minimum educational qualification is concerned promisees and direct recruits are on par and the promotees cannot be looked upon as persons belonging to an inferior breed.
[963 D H, 964 A] 7.
The contention that the individuals likely to be affected by the decision not being impleaded, the writ petition should fail cannot be accepted.
Factually it is incorrect because by order of the High Court, names of respondents 3 to 419 were deleted and in the Supreme Court submissions were made by a counsel for them.
In the petition as well as in the appeal the relief is claimed against the Union of India and the concerned Ministry and not against any individual nor any seniority is claimed by anyone individual against G another particular individual.
The contention is that the criteria adopted by the Union Government in drawing up the impugned seniority list are illegal and invalid.
Therefore, even if technically the direct recruits were not before the Court, the petition is not likely to fail on that ground.
[966 G H, 967 A B] Vade Mecum It is unfortunate that very unjust, unfair and inequitable situation having a demoralising effect on public services probably ensuing from certain 942 rules framed by the Government and the decisions of this Court has emerged.
Even where the recruitment to a service is from more than one source and a quota is fixed for each source yet more often the appointing authority to meet its exigencies of service exceeds the quota from the easily available source of promotees because the procedure for making recruitment from the market by direct recruitment is long prolix and time consuming.
The Government for exigencies of service, for needs of public services and for efficient administration, promotee person easily available because in a hierarchical service one hopes to move upward.
After the promotee is promoted, continuously renders service and is neither found wanting nor inefficient and is discharging his duty to the satisfaction of all, a fresh recruit from the market years after promotee was inducted the service comes and challenges all the past recruitments made before he was born in service and some decisions especially the ratio in Jai Singhani 's case as interpreted in two B. section Gupta 's cases gives him an advantage to the extent of the promotee being preceded in seniority by direct recruit who enters service long after the promotee was promoted.
When the promotee was promoted and was rendering service, the direct recruit may be a schoolian or college going boy.
He emerges from the educational institution, appears at a competitive examination and starts challenging everything that had happened during the period when he has had nothing to do with service.
A mandamus issued in Jai Singhani 's case led to a situation where promotees of the year 1962 has to yield place to direct recruits of 1966 and the position worsened thereafter.
In the case in hand, appellant a promotee of September 27, 1962 is put below N. K. Prinza who appeared at competitive examination in April 1976 i.e. One who came 14 years after the appellant, and it does not require an intelligent exercise to reach a conclusion that 14 years prior to 1976 Mr. Prinza who is shown to be born on July 20, 1950 must be aged about 12 years and must have been studying in a primary school.
Shorn of all service jurisprudence jargon one can bluntly notice the situation that a primary school student when the promotee was a member of the service, barged in and claimed and got seniority over the promotee.
If this has not a demoralising effect on service one fails to see what other inequitous approach would be more damaging.
It is therefore, time to clearly initiate a proposition that a direct recruit who comes into service after the promotee was already unconditionally and without reservation promoted and whose promotion is not shown to be invalid or illegal according to relevant statutory or non statutory rules should not be permitted by an principle of seniority to score a march over a promotee because that itself being arbitrary would be violative of articles 14 and 16.
[968 D H, 959 A E]
|
vil Appeal Nos.
2044 45 of 1990.
From the Judgment and Order dated 18.8.1989 of the Madras High Court in C.R.P. Nos.
4797 and 4798 of 1984.
C.S. Vaidyanathan, K.V. Vishwanathan, K.V. Mohan, S.R. Bhat and S.R. Setia for the Appellant.
785 K. Parsaran and V. Balachandran for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
Special leave to appeal is granted and the appeals are disposed of by a common order.
On 9.6.1936, Ramaswamy Gounder (the predecessor in interest of the respondents) executed a lease deed in favour of Gopal Sait (the predecessor in interest of the appellant).
Certain passages from an English translation of the lease deed (which was in vernacular) are relevant for the purposes of the present case and they read thus: "Whereas the property viz. vacant land well and Kaichalai etc.
belongs to the party of the First part as his ancestral property; Whereas the said property was leased out to party of the Second Part on a monthly rental of Rs.12 8 0 for 15 years and taken possession by the party of the second part from party of the First part on 3.12.1935 . . and the party of the Second part for his convenience and at his own ex penses and costs (was) permitted to construct in the said vacant land and install petrol selling business . .
After the expiry of lease period of 15 years i.e. on 12.2. 1950 the lessee shall at his own expense remove the struc ture put up by him and deliver possession of the vacant land together with well and kaichalai in the present state . SCHEDULE . vacant land situated in this bounded on the North by vacant land leased out for Burmah Oil Co. by the said Ramas wamy Gounder Gopalji Ratnaswami . . all these vacant lands together with in the fourth plot measuring East to west 84 and North to South 16 together with half share in well therein together with tiled Kaichalai . together with door, doorways etc.
There is no number for Kaichalai.
It is common ground that the total vacant area covered by the 786 lease was 3600 sq.
and that the kaichalai, referred to therein, was thirty seven and a half by sixteen and a half feet i.e. of the extent of about 600 sq.
It also appears that even though there was initially no door number for the Kaichalai, it was eventually given door No. 82 and the suit premises we are concerned with bear door Nos. 80, 81 and 82.
The lease was extended for a period of two years from 1.1.51 by a fresh deed dated 15.1.51 at an enhanced rent.
This lease deed recited: "On the expiry of two years, i.e. on 31.12.52, the lessor has no objection for the removal of the structure put up by Burmah Shell petrol pump etc except the extent of structure of thirty seven and a half feet by sixteen and a half feet put up by the lessor . " There was a fresh lease deed, again, executed on 2.1.53 for a further period of three years at a higher rent.
This deed also required the lessee, when delivering possession back to the lessor on the expiry of the lease, to remove the struc tures put up by him or the Burmah Shell Co. Ltd. "except the structure measuring thirty seven and a half ft. by sixteen and a half ft.".
The lessee appears to have continued to occupy the property even beyond 31.12.55 at a further enhanced rent.
In 1962, we are told, the lessor flied a petition to evict the lessee under section 10(3)(a)(i) and 14(1)(b) of the Madras Buildings (Lease and Rent Control) Act 1960, alleging that he required the premises for personal occupation and for bona fide immediate demolition.
"The lessee defended the petition saying that the premises do not require any immedi ate demolition, that the premises are used for non residen tial purposes and kept in good condition and that the peti tioner 's requirement for personal occupation is not bona fide." The petition was dismissed by the Rent Controller observing that the premises did not need demolition and further that, as the premises had been leased out for non residential purposes and the landlord could not seek its conversion into residential use without the controller 's application, the petitioner 's allegation that he required it for personal use was neither tenable nor bona fide.
Ramaswamy Gounder filed a petition again in 1979 for the eviction of the respondent but he died in February 1979 and the petition filed by him was dismissed for default.
There after his legal representatives (the present respondents) instituted a petition for eviction 787 (R.C.O.P. 19/79 out of which the present proceedings have arisen) of the respondents on the grounds of demolition and re construction and of wilful denial of title within the meaning of Ss. 14(1)(b) and 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act.
In the meantime, the provisions of the Madras City Tenants ' Protection Act, 1922 (Later renamed the Tamil Nadu City Tenants ' Protection Act) were extended to the municipal limits of Udumalpettai within which the premises in question were located.
Taking advantage of this, the respondent filed O.P. 1/79 (in the same court of District Munsif cum Rent Controller) claiming the benefit of compulsory purchase conferred on tenants of land under the said Act.
The Dis trict Munsif cum Rent Controller allowed the lessor 's peti tion for eviction and dismissed the lessee 's petition.
The sub judge, on appeal, dismissed the appeals with a slight modification.
He was of the view that, except for the kai chalai, the other buildings had been put up by the respond ents with the permission of the lessor and that, hence, he was entitled to obtain compensation therefore by institution of separate appropriate proceedings.
The respondent filed two revision petitions before the High Court which declined to interfere.
The learned Judge held: "I do not see any reason to interfere with the orders of the courts below negativing the claim of the revision petition er.
In as much as admittedly the property situated in door No. 82 belonged to the landlord, this is a case to which section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 will apply.
However, the property bearing door Nos. 80 and 81 belonged to the petitioner is the find ing.
On that all that the tenant could ask for will be for removal of the superstructure.
Beyond that his claim for compensation also could not be ordered since there was no prayer for the same.
The decision in M/s. Larsen & Toubro Ltd. vs The Trustees of Dharmamoorthy Rao Bahadur, Calvala Cunnan Chetty 's Charities by its Trustees, [1988] 2 LW 380 is distinguishable because this is a case of only one and a half grounds wherein there is a kaichalai of 600 sq.
The removal shall take place within a period of three months from today.
The Civil revision petitions are dismissed.
" Hence these two appeals.
788 Though there have been claims made under the Rent Con trol Act by the lessor and under the City Tenants ' Protec tion Act by the lessee, the claim under the latter has not been pressed before us by the learned counsel for the appel lant who has confined his arguments before us to the only question whether the demised premises constitute a "build ing" within the meaning of section 2(2) of the Rent Control Act.
Sri C.S. Vaidyanathan, learned counsel for the appel lants submitted that the first appellate court has found, modifying the trial court 's findings in this regard, that the original lease comprised only of the vacant site, well and kaichalai and that all the other superstructures found in the demised premises had been put up by the appellant.
He contended that the 'kaichalai ' was merely in the nature of a shed put up for the tethering of cattle and that it was not a 'building ' within the meaning of the Rent Control Act.
Alternatively, he contended, even if the Kaichalai could be considered to be a building this was not a case of the lease of a building or hut with its appurtenant land: it was really a case of the lease of a vacant site to the petition er on which was situated a small hut in one corner.
The lease deed itself recites that the appellant had taken the premises for putting up a petrol pump.
In fact he did put in an underground storage tank, a petrol pump and other struc tures and carried on a petrol and kerosene business thereon.
Though the small Kaichalai was situate in a corner of the site, the lease intended by the parties was only that of the site.
The Kaichalai was no doubt not demolished and, per haps, the appellant also made use of it for the purposes of his business but, says Sri Vaidyanathan, this made no dif ference to the obvious and clear and dominant intention of both parties that it was the site that was leased out for a petrol pump business.
Sri Vaidyanathan contended that the issue is directly governed by the decision in the Larsen & Toubro case ; , to which one of us was a party.
He submitted that, where a lease is a composite one of land and buildings, the court has to address itself to the primary or dominant intention of the parties.
If this is to lease a building the lease of land being adjunct or incidental as in the Larsen & Toubro, case (supra), the Rent Control Act would apply.
On the other hand, if the dominant intention is to lease a site the presence of a building thereon not being considered material by either party the lease would not be one of a 'building ' covered by the Rent Control Act, whether or not it can be considered as a lease only of a vacant site governed by the City Tenant 's Protection Act.
Counsel contended that it is possible that there may be a grey area of leases which might fall under neither Act and proceedings in respect of which 789 may continue to be governed by the Transfer of Property Act, unaffected by these special laws.
The Rent Control Act contains a definition of the ex pression 'building ' which reads as follows: "2(2) 'building ' means any building or hut or part of a building or a hut, let or to be let separately for residen tial or non residential purposes and includes (a) the gardens, grounds and out houses, if any, appurtenant to such building, hut or part of such building or hut and let or to be let along with such building or hut, (b) any furniture supplied by the landlord for use in such building or hut or part of a building or hut, but does not include a room in a hotel or boarding house.
" We have not been able to get at the exact meaning of the Tamil word 'kaichalai '.
It, however, seems to denote a structure or a roof put up by hand.
Whatever may be the precise meaning of the term, we think that the definition in section 2(2) clearly includes the kaichalai in the present case.
Since the Act applies to residential and non residential buildings alike, the expression 'hut ' cannot be restricted only to huts or cottages intended to be lived in.
It will also take in any shed, hut or other crude or third class construction consisting of an enclosure made of mud or by poles supporting a tin or asbestos roof that can be put to use for any purpose, residential or non residential, in the same manner as any other first class construction.
The kaichalat is a structure which falls within the purview of the definition.
Counsel for the appellant is perhaps under stating its utility by describing it as a mere cattle shed.
The area of the shed is quite substantial and, as will be explained later, the parties also appear to have attached some importance to its existence on the site.
It is very difficult to hold, in view of the above definition, that the kaichalai is not a 'building ' within the meaning of section 2(2).
On behalf of the respondents, it is contended that, in a composite lease, the existence of a building or hut on the land (however small, insignificant or useless it may be) is sufficient per se to bring the lease within the scope of the Rent Control Act.
It is suggested for the respondent that it would be inarguable, once it is admitted or held 790 that the Kaichalai is a building and that the same has been let out, that still there is no letting out of a building within the meaning of the Act.
In support of his contention, Sri Parasaran, for the respondent, placed considerable reliance on Irani vs Chidarnbaram Chettiar, AIR 1953 Mad. 650.
He pointed out that, in that case there was a vast vacant land with only some stalls in one corner and a com pound wall but it was nevertheless held to be a case of lease of a building.
According to him, this case was not disapproved, but indeed indirectly approved, by this Court in Salay Md. Sait vs
J.M.S. Charity, [1969] 1 MLJ SC 16 though certain other cases (where leases of vacant sites with only the lessees ' buildings thereon were held to be leases of buildings) were overruled in that decision.
This case, according to him, decides that, once there is a build ing on the land, however insignificant, and it is let out, the case will be governed by the Rent Control Act.
We do not think this case is an authority for such an extreme posi tion.
It rather seems that the case was one decided on its own special facts.
At the time of the original lease by the landlord there was only a vacant site and a few small stalls.
But, by the time the relevant lease deed (which came up for consideration) was executed, it had become the site of a theatre.
No doubt the theatre did not belong to the lessor; nevertheless for several years the leased property had been sued as a theatre and the purpose of the parties was clearly that the leased premises should continue be used as a cinema theatre.
It was in this special situation that the Court came to the conclusion that it was plausible to hold the lease to be one of a building though if the struc tures not belonging to the landlord were left out of ac count, there was only a vacant site and a few stalls.
We think it would not be correct to draw support from this decision for the extreme proposition contended for on behalf of the respondent.
In our opinion, we have to travel beyond this solitary fact, go further to look at the, terms of the lease and the surrounding circumstances to find out what it is that the parties really intended.
There is no difficulty in determining the scope of the lease where a building and a piece of land are separately let out.
But in the case of composite lease of land and building, a question may well arise whether the lease is one of land although there is a small building or hut on it (which does not really figure in the transaction) or one of a lease of the building (in which the lease of land is incidental) or a lease of both regardless of their respec tive dimensions.
In determining whether a particular lease is of the one kind of another, difficulties are always bound to arise and it will be necessary to examine whether the parties intended to let out the building along with the lands or vice 791 versa.
The decisions in Sivarajan vs Official Receiver, AIR 1953 Trav.
Co. 105; Nagamony vs Tiruchittambalam, AIR 1953 Trav.
Co. 369; Official Trustee vs United Commercial Syndi cate, and Raj Narain vs Shiv Raj Saran, AIR , relied upon by Sri Vaidyanathan, were in stances where what the parties had in mind was only the lease of land, although there were certain petty structures thereon which were not demolished or kept out of the lease but were also let out.
They were clearly cases in which, we think, the applicability of the Rent Act was rightly ruled out.
On the other hand, Larsen & Toubro, ; is a case where there was the lease of a building although a vast extent of land was also included in the lease.
That was not a case which arose under the Rent Control Act but it illustrates the converse situation.
Sri Vaidyanathan wants to derive, from the case referred to above and certain cases which deal with other aspects which become relevant while considering a composite letting, a proposition that the dominant purpose of the letting should govern.
For instance, there are cases where factories, mills or cinema theatres are leased out and cases have held that the dominant object is to lease a factory, mill or theatre and that, even though in all these cases, the letting out of a building would be involved, the provisions of the Rent Control Act would not apply vide Venkayya vs Subba Rao, AIR 1957 A.P. 619; Uttam Chand vs Lalwani.
AIR 1965 SC 716 and Dwarka Prasad vs Dwarkadas; , But we think that this approach also seeks to over simplify the problem.
When we come down to consider the terms of a particular lease and the inten tion of the parties, there are bound to be a large variety of cases.
If the transaction clearly brings out a dominant intention and purpose as in the cases cited above, there may be on difficulty in drawing a conclusion one way or the other.
But it is not always necessary that there should be a dominant intention swaying the parties.
There may be cases where all that is intended is a joint lease of both the land and the building without there being any considerations 'suf ficient to justify spelling out an intention to give primacy to the land or the building.
For instance, where a person owns a building surrounded by a vast extent of vacant lands (which may not all be capable of being described appurtenant thereto, in the sense of being necessary for its use and enjoyment) and a party comes to him and desires to take a lease thereof, he may do so because he is interested either in the building or the land (as the case may be).
But the owner may very well say: "I am not interested in your need or purpose.
You may do what you like with the land (or building).
1 have got a compact property consisting of both and I want to let it out as such.
You may take it or leave it.
" The fact in such cases is that the owner has a building and land and he lets them 792 out together.
He is not bothered about the purpose for which the lease is being taken by the other party.
In such cases, it is very difficult to say that there is no lease of build ing at all unless there is some contra indication in the terms of the lease such as, for example, that the lessee could demolish the structure.
The test of dominant intention or purpose may not be very helpful in such cases in the context of this legislation.
Sri Vaidyanathan sought to contend that the words of section 2(2) "any building . . and gardens, grounds . . let or to be let along with it", import the concept that the dominant purpose should be a letting of the building.
We do not think that this is necessarily so.
The decision of this Court in Sultan Bros. P. Ltd. vs C.I.T., [ ; is of some relevance in this context.
There the Supreme Court was concerned with the interpretation of section 12(4) of the Indian Income tax Act, 1922 which read: "(4) Where an assessee lets on hire machinery plant or furniture belonging to him and also buildings, and the letting of the buildings inseparable from the letting of the said machinery, plant or furniture, he shall be entitled to allowances in accordance with the provisions of the clauses (iv), (v) and (vii) of sub section (2) of section 10 in respect of such buildings.
" The High Court took the view that the plant and machinery and buildings should not only be inseparably let out but also that "the primary letting must be of the machinery, plant or furniture and that together with such letting or along with such letting there (should be) letting of build ings." 1n that case, the High Court held, the primary let ting was of the building and so section 12(4) would not apply.
The Supreme Court did not approve of this reasoning.
It said: "Now the difficulty that we feel in accepting the view which appealed to the High Court and the Tribunal is that we find nothing in the language of sub section
(4) of section 12 to support it.
No doubt the sub section first mentions the letting of the machinery, plant or furniture and then refers to the letting of the building and further uses the word 'also ' in connection with the letting of the building.
We, however, think that this is too slender a foundation for the conclu sion that the intention was that the primary letting must be of the machinery, plant or furnitures.
In the absence of a much 793 stronger indication in the language used, there is no war rant for saying that the sub section contemplated that the letting of the building had to be incidental to the letting of the plant, machinery or furniture.
It is pertinent to ask that if the intention was that the letting of the plant, machinery or furniture should be primary, why did not the section say so? Furthermore, we find it practically impossi ble to imagine how the letting of a building could be in cidental to the letting of furniture, though we can see that the letting of a factory building may be incidental to the letting of the machinery or plant in it for the object there may be really to work the machinery.
If we are right in our view, as we think we are, that the letting of a building can never be incidental to the letting of furniture contained in it, then it must be held that no consideration of primary or secondary lettings arises inconstruing the section for what must apply when furniture is let and also buildings must equally apply when plant and machinery are let and also buildings.
We think all that sub section
(4) of section 12 contem plates is that the letting of machinery, plant or furniture should be inseparable from the letting of the buildings." The Court proceeded then to consider the concept of 'insepa rable letting ' and observed: "It seems to us that the inseparability referred to in sub section (4) is an inseparability arising from the intention of the parties.
That intention may be ascertained by flaming the following questions: Was it the intention in making the lease and it matters not whether there is one lease or two, that is, separate leases in respect of the furniture and the building that the two should be enjoyed together? Was it the intention to make the letting of the two practically one letting? Would one have been let alone or a lease of it accepted without the other? If the answers to the first two questions are in the affirmative, and the last in the nega tive then, in our view, it has to be held that it was in tended that the lettings would be inseparable.
This view also provides a justification for taking the case of the income from the lease of a building out of section 9 and putting it under section 12 as a residuary head of income.
It then be comes a new kind of income, not covered by section 9, that is, income not from the ownership of the building alone but an income which 794 though arising from a building would not have arisen if the plant, machinery and furniture had not also been let along with it.
" Though the context was somewhat different, the observations in that case are of great assistance.
We think that, in the context here also, we should be guided not by any theory of dominant purpose but by the consideration as to whether the parties intended that that the building and land should go together or whether the lessor could have intended to let out the land without the building.
The latter inference can perhaps be generally drawn in certain cases where only the lease of land dominated the thoughts of the parties but the mere fact that the building is small or that the land is vast or that the lessee had in mind a particular purpose cannot be conclusive.
Let us now turn, in the above background, to a consider ation of the lease deed in the present case.
As already mentioned, counsel for the appellant strongly relies on the purpose of the lease and seeks to make out that the building (kaichalai) was not really a significant part of the lease.
This contention is stoutly refuted on behalf of the respond ents.
It is pointed out that the kaichalai was of substan tial dimensions and that counsel for the appellant is not fight in characterising it as a mere cattle shed.
It is pointed out that the shed was also admittedly used by the appellants for the purposes of its business and there is nothing to show that this was also not in contemplation at the time of the lease.
Again it is pointed out that, in some parts of the lease deeds, the vernacular version gives first place to the kaichalai rather than to the vacant site.
Also, every one of the lease deeds attaches special emphasis that the kaichalai should not be removed but should be returned to the lessor without any damage.
We may also advert to one more circumstance which shows beyond doubt that the kaicha lai was not an insignificant structure.
We have earlier referred to the fact that Ramaswamy Gounder had filed an earlier eviction petition on the ground that he needed the premises for personal occupation and immediate demolition.
The lessee 's defence to this was not that the kaichalai was a cattle shed unfit for personal occupation, The defence was that it had been let out for a non residential purpose and could not be converted to residential use without permis sion.
This certainly demonstrates that the kaichalai was capable of use both for residential and non residential purposes.
Counsel for the respondent, in fact, wanted to go a little further and hold it against the appellant that he had not taken in those proceedings the plea, now put for ward, that the Rent Control Act could not at all be invoked.
We will not, however, 795 hold this against the appellant 'as, at that time, the benefits of the Tenants ' Protection Act had not been extend ed to Udumalpettai and the tenant would not have gained anything by raising any such point.
But the pleadings in those proceedings as well as the order of the Rent Control ler therein leave no doubt that the kaichalai was a material structure let out as such to the lessee for non residential purposes and which, with necessary permission, could also have been used for residential purposes.
Having regard to all these circumstances, the correct inference appears to be that what the lessor intended was a lease of both the land and the building.
The land was to be put to use for a petrol pump; so far as the building was concerned, the lessee was at liberty to use it as he liked but he had to maintain it in good condition and return it at the end of the lease.
This was a composite lease with a composite purpose.
It is difficult to break up the integrity of the lease as one of land alone or of building alone.
In these circumstances, we think this letting would come in within the scope of the Rent Control Act, for the reasons already explained.
Before concluding, we may touch upon two more relevant aspects.
The first is the use of the word "separately" in section 2(2).
This, however, does not affect our above construction of the section.
That word is intended to emphasise that, for purposes of the Act, a building means any unit comprising the whole or part of a building that is separately let out.
It does not mean it cannot mean that composite leases of land and building would not be covered by it.
That would be clearly contrary to the language of the whole clause which specifically talks of joint letting of land and building.
The second is the restriction of the applicability of section 2(2) to cases of letting of building and appurtenant lands only.
It may be suggested that the lands here are not "appurtenant" except perhaps to the extent required for providing access to the Kaichalai.
This argument is not very helpful to the appellants.
At best, it can mean that the Kaichalai and only a part of land needed for its enjoyment or use would be governed by the Rent Control Act.
But this was not the contention of the appellant and no attempt has been made to ascertain what the extent of such "appurtenant" land could be.
That apart, we are inclined to think that the word "appurtenant" has, in the context, a much wider mean ing.
It is not just restricted to land which, on a consider ation of the circumstances, a court may consider necessary or imperative for its enjoyment.
It should be construed as comprehending the land which the parties considered appro priate to let along with the building.
To hold to the con trary may give rise to practical difficulties.
Suppose there is, in the middle of a metropolis, a bungalow with a vast extent of land sur 796 rounding it such as for e.g. in the Larsen & Toubro case and this is let out to a tenant.
If a very strict and narrow interpretation is given to the word "appurtenant", it is arguable that a considerable part of the surrounding land is surplus to the requirements of the lessee of the building.
But, we think, no argument is needed to say that such a lease would be a lease of building for the purposes of the Rent Control Act.
Where a person leases a building together with land, it seems impermissible in the absence of clear intention spelt out in the deed, to dissect the lease as (a) of building and appurtenant land covered by the Rent Control Act and (b) of land alone governed by other relevant statu tory provisions.
What the parties have joined, one would think, the court cannot tear as under.
In fact, we may point out that a wider meaning for this word was convassed in Irani vs Chidambaram Chettiar, AIR 1953 Madras 650 which the court had no necessity to go into in the view taken by it on the interpretation of the lease deed.
In this case also no contention has been raised in regard to this aspect and so we shall also leave open the precise connotation of the word except to say that it may warrant a wide meaning in the context.
For the reasons discussed above, we see no grounds to interfere with the judgments of the courts below.
The appeal is dismissed but we make no order as to costs.
R.S.S. Appeal dis missed.
| In the South Eastern Railway the cadre initially com prised of Assistant Station Masters at the bottom and the Station Masters at the top.
Initial appointment of ASM was made in the scale of Rs.360 540.
The promotional ladder bifurcated into: (i) ASM to SM, and (ii) ASM to SM, both in the scale of Rs.425 640 (non selection), and then Rs.455700 (selection); before becoming one common source for promotion to Deputy Station Superintendent/SM Rs.550 750 (non selec tion) Rs.700800 Station Superintendent (selection), and Rs.840 1010 Station Superintendent (non selection).
For moving up the promotional ladder every ASM was required to opt if he would proceed on the channel of ASM to ASM, or ASM to SM.
Later, re structuring was done in 'C ' and 'D ' cadres in the scales, designation and percentage; in selection and non selection posts.
Two alternatives were framed described as alternative 'I ' for the combined cadre, and alternative 'II ' for the separate cadres; which were to be adopted by the respective zones depending on the prevailing cadre pattern.
For ASM/SM two alternatives were provided to be adopted by the respective zones depending on whether the existing cadre was separate or combined.
In alternative 'I ' meant for the combined cadre SMs in the scale of Rs.425 640 and Rs.455 700 were designated as Deputy Station Superin tendents and Station Superintendents in the scale of Rs.540 750 and Rs.700 900 respectively.
Pursuant to the re structuring, the Chief Personal Officer issued a letter to the Divisional Manager, South Eastern Railway that it has been decided that alternative 'I ' enunciated by the Board shall be followed on the said railway, and the existing system of calling for options from ASMs for the post of SMs/ASMs in the higher grade was being dispensed with seniority of staff in each grade shall be determined on 814 the basis of non fortutious service rendered in such grade.
Since the aforesaid direction of the Chief Personnel Officer worked to the prejudice of numerous persons who had exercised their options to the promotional channel of Sta tion Master, they approached the High Court/Tribunal by way of writ petitions/claim petitions but without any success.
Some of these disputes came up in appeal before this Court which were disposed of on July 30, 1987 by directing the Railway Board to consider if the Chief Personnel Officer while implementing its scheme deviated from its terms, and implemented it to the prejudice of those appellants.
The appellants Station Masters of South/Eastern Railway aggrieved by the implementation of the scheme of re struc turing by the Chief Personnel Officer approached the Central Administrative Tribunal, which rejected their claim, as the implementation was beneficial to the majority, and further found that the alternative 'I ' of the scheme meant for the combined cadre was rightly adopted as the cadre of Assistant Station Masters and Station Masters in the South Eastern Zone was combined before 1983.
The appellants in their appeal to this Court challenged the correctness of the aforesaid findings and also claimed that the implementation of the scheme was highly unjust and inequitable.
It was claimed that if alternative 'I ' was adopted then it should have been given full play and the SMs should have been placed en bloc in the re designated posts without any further process of selection.
Disposing of the appeal by directing that the respond ents shall grant promotional benefit to those 204 SMs who have exercised option before 1983, this Court, HELD: 1.
It is not disputed that in the South Eastern Zone the practice of obtaining option by ASM for promotional channel was in vogue before 1983.
The dispute was about the time when it was exercised.
According to the appellant it was at the time of recruitment and appointment even on pain of disciplinary action whereas according to the officials it used to be offered when vacancy arose according to seniori ty.
Unfortunately, it was accepted by the Tribunal as well without any foundation in the record by shutting its eyes to the letters dated 14th May, 1965 and 20th May, 1970, issued by the Divisional 815 Superintendent which shows that options were required to be exercised by ASMs irrespective of availability of vacancy before the target date, and if it was not exercised then they were liable to disciplinary action.
[818F H; 819A] 2.
Even the claim of the Administration that cadre of ASM/SM was combined cadre in South East Railway was not substantiated by any document, letter or order.
On the other hand, the letter dated 10th May, 1984 issued by Additional District Pay Commissioner to the General Manager recognises existence of separate cadre.
[819F] 3.
Existence of separate cadres prior to 1983 and chang ing over to a combined system is not the same thing as claiming that the cadre which existed prior to 1983 was a combined cadre.
[820C] 4.
Since the cadre in South Eastern Railway was a sepa rate one, the Chief Personnel Officer deviated from the scheme by applying alternative 'I ' which was to be adopted by a zone where combined cadre existed and if alternative 'I ' was adopted then the SMs should have been automatically designated as Deputy Station Superintendents and they should not have been subjected to the selection procedure.
In alternative 'I ' SM in scale of Rs.425 640 automatically stood redesignated as Deputy Station Superintendents.
But the scale does not find place in alternative II.
But both the employees unions have accepted the implementation of the letter of the Chief Personnel Officer as h is beneficial to a majority of the employees.
Therefore, it may not be dis turbed.
At the same time all those 204 employees who had opted before 1983 must be entitled to the benefit which would have been available to them on their options.
[820F H]
|
al from the order dated October 20, 1965 of the Punjab, High Court in Letters Patent Appeal No. 262 of 1965.
V. C. Mahajan and R. N. Sachthey, for the appellant.
Sobhag Mal Jain and B. P. Maheshwari, for the respondent.
The Judgment of the Court was delivered by Shah, J.
Sant Singh Kanwarjit Singh hereinafter called the assessee is registered as a dealer under the Punjab General Salestax Act, 1948.
The assessee filed returns of the turnover of its business for the quarters ending 30th June, 1962 and 30th September, 1962, but without appending thereto the list of sales to registered dealers as required by rule 30 framed under the Act.
The Sales tax Officer proceeded to make "exparte assessments" for the two quarters.
The assessee then moved a petition in the High Court of Punjab for a writ quashing the orders of assessment.
A single 312 Judge following the Judgment of the Punjab High Court in Mansa Ram Sushil Kumar V. The Assessing Authority, Ludhiana,( ') quashed the orders of assessment.
An appeal by the State of Punjab was summarily dismissed by a Division Bench of the High Court.
The scheme of levy and assessment of tax under the Act may be briefly noticed.
Every dealer whose gross turnover during the year proceeding commencement to the Act exceeded the taxable turnover is liable to pay tax on all sales effected after the quarter after the commencement of the Act.
Tax is to be levied on the taxable turnover at such rates as the State Government may direct.
Tax is payable under the Act in the manner provided and at such intervals as may be prescribed.
section [10(l)].
A registered dealer furnishing a return has to pay the amount of tax due according to the return into the Government Treasury.
The assessing authority may without requiring the presence of the registered dealer or production by him of any evidence hold that the returns furnished are correct and complete, and proceed to assess the amount of tax due from the dealer on the basis of these returns; if the assessing authority is not satisfied with the return he may require the registered dealer to remain present in person or by pleader and to produce evidence on which he may rely upon in support of the return.
The Assessing authority may after hearing the evidence as the dealer may produce and such other evidence as the Assessing authority may require, assess the amount of tax due from the dealer.
The scheme is plain.
A registered dealer must file return of the turnover in the manner prescribed and at such intervals as may be prescribed.
The dealer while submitting the return has also to pay tax according to the return.
The Assessing Officer may accept the return or he may call upon the tax payer to explain the.turnover, and support it by evidence.
Under the Act sales tax is a yearly tax, but the provisions relating to assessment contemplate assessments for periods shorter than a complete year, and for that purpose the tax payers are required by the Act to submit periodical returns of their turnover and to pay tax due thereon.
In Mansa Ram Sushil Kumar vs
The Assessing Authority Ludhiana (1), a Division Bench of the Punjab High Court held that the tax imposed under the Punjab General Sales Tax Act may be assessed only at the end of the year and not during the pendency of the year as and when, the return is filed, and in the absence of machinery in the Act for making Assessment for (1) (1964) 16 S.T.C. 857. 313 period shorter than the year of assessment, the order of assesment of tax for a quarter before the expiry of the assessment year is illegal.
In reaching that conclusion the High Court relied upon the judgment of this Court in M/s. Mathura Prasad & Sons vs State of Punjab (1).
But in Mathura Prashad 's case( ') this Court considered whether an exemption granted by the State, Government during the course of the year was applicable to the whole or only a part of the year of assessment.
This Court held(Mr.
Justice Kapur dissenting) that the exemption operated for the entire financial year.
The Court observed that the tax was a yearly tax levied on the taxable turnover of a dealer for the year; it was collected in some cases quarterly, some, cases yearly; and proceeded to hold that whenever the exemption came in, in the year for which the tax was payable, it exempted sales throughout the year unless notification fixed the date of commencement of the tax.
In our judgment the principle, of that case has no, bearing on the question arising in this case.
:The Court in Mathura Prasad 's case( ') merely emphasised that the tax was an annual tax but that did not imply that assessment of tax quarterly was illegal.
Adjustment may possibly have to be made when the .assessment of the final quarter is made, but the taxing authorities are not debarred from determining and assessing the quarterly turnover of tax.
Mansa Ram 's case (2) has since been over ruled by a full Bench of the Punjab High Court in M/s. Om Parkash Rajinder Kumar vs K. K. Opal (3).
The Court in that case held that Sales tax may be assessed under section 1 1 of the Act on the basis of quarterly returns submitted by the dealer pursuant to the notice served on him under sec.
10(3) before the close of the relevant financial year.
In our judgment the High Court was right in holding in Mis.
Om Parkash Rajinder Kumar 's case (3) that the, assessment proceeding under the Punjab General Sale tax may be started even before the expiry of the year where provision is made for submission of periodical returns, and that such assessments are not provisional.
The appeal is allowed and the order passed by the High Court set aside and the petition is dismissed.
There will be no order to cost throughout.
V.P.S. Petition dismissed.
(1) [1962] Supp. 1 S.C.R. 913.
(2) {1964] 15 S.T.C. 857.
(3) I.L.R. (1967) Vol.
& Har, 155.
| Investigation in this case was started on the 20th April, 1951, under the City of Bombay Police Act (Bombay Act IV of 1902), the provisions of the , Code of Criminal Procedure being then inapplicable to Bombay City Police by virtue of section I (2)(a) of the Code.
In 1951, the Bombay Police Act (Bombay Act XXII of 1951) was passed by 'which both the Bombay Act IV of 1902 and the provision in section 1(2)(a) of the Code of Criminal Procedure in so far as it made the Code inapplicable to Bombay City Police. were repealed.
This Act came into force on 1st August, 1951, and after that date the provisions of the Code of Criminal Procedure became applicable to investigations by the Bombay City Police.
Under section 63 of the City of Bombay Police Act (Bombay Act IV of 1902), no statement made by a person to a Police Officer during investigation, reduced to writing, may be need in evidence, while under section 162 of the Code of Criminal Procedure the ban applies also to oral statements made to a Police Officer during investigation, not reduced to writing.
Held, that section 162 of the Code of Criminal Procedure by its very context and terms, applied to investigations conducted under Chapter XIV of the Code, and could not operate retrospectively and apply to investigations conducted prior to 1st August, 1951, by the Bombay City Police, as they were not investigations conducted under Chapter XIV of the Code.
The test identification parades in regard to accused I and 2 having been held prior to the 1st August, 1951, section 162 of the Code did not apply to the evidence 904 received in regard to these parades, but the section applied to the evidence relating to the test identification parades in regard to accused 4 as these were held after 1st August, 1951.
Banwari Gope vs Emperor (A.I.R. 1943 Patna 18) and Delhi Cloth Mills vs Income tax Commissioner, Delhi (A.I.R. , referred to.
The purpose of identification parades being to enable witnesses to identify the properties involved or the persons concerned in the offence under investigation, the very process of identification involves a statement by the identifying witness that the particular property or person identified was concerned in the offence.
This statement may be express or implied.
Such a statement, whether express or implied, including signs and gestures, would amount to a communication of the fact of identification by the identifier to another person, and where the identifications are held in the presence of the Police, such communications are tantamount to statements made by the identifiers to a Police Officer in the course of investigation and come within the ban of section 162 of the Code.
The physical fact of identification has no separate existence apart from the statement involved in the very process of identification, and in so far as a Police Officer seeks to prove the fact of such identification, such evidence would be inadmissible under section 162 of the Code, the only exception being the evidence sought to be given by the identifier himself in regard to his mental act of identification which he would be entitled to give by way of corroboration of his identifi cation of the accused at the trial.
Where the Police Officers arrange the parade, produce the parsons who are to be mixed up with the accused, and withdraw, leaving the actual parade solely and exclusively in charge of Panch witnesses, and the process of identification is carried out under the exclusive direction and supervision of the Panch witnesses, the statements involved in the process of identification would be state ments made by the identifiers to the Panch witnesses and would be outside the purview of section 162 of the Code.
Khabiruddin vs Emperor (A.I.R. ; Surendra Dinda vs Emperor (A.I.R. ; and Daryoo Singh vs State (A.I.R. 1952 All. 59), approved.
In re Kshatri Ram Singh (A.I.R. 1941 Mad. 675); Guruswami Thevan vs Emperor and Bamdhin Brahmin vs Emperor (A.I.R. , disapproved.
Rao Shiv Bahadur Singh vs State of Vindhya Pradesh ([1954] S.C.R. 1098) and Abdul Kader vs Emperor (A.I.R. 1946 Cal.
452), referred to.
Per JAGANNADHADASJ.
Differentiation between the evidence of a Police Officer and that of Panch witnesses and identifying witnesses relating to the fact of prior identification in a parade held by a Police Officer on the ground of the latter being corroborative evidence, is unsound and inadmissible, and the evidence of the 905 Panch witnesses and identifying witnesses relating to the fact of prior identification would be inadmissible even as corroborative evidence.
Section 27 of the Indian Evidence Act is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence.
But clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate.
Kottaya vs Emperor (A.I.R. 1947 P.O. 67), referred to.
Where evidence was given by a Police Officer that "in conse quence of a certain statement made by the accused" and "at the instance of the accused", a tin box was dug out of a mud house, and the nature of the statement made or information given by the accused was not sought to be proved, section 27 was not attracted and prima facie there was nothing to prevent the evidence being admitted against the accused concerned.
Durlav Namasudra vs Emperor ([1931] I.L.R. , referred to.
Per JAGANNADHADAS J.
There is considerable force in the objection that when a Police Officer speaks to a discovery being made "at the instance of the accused" or "in consequence of information given by the accused", the prosecution cannot be permitted to rely on such evidence without placing the admissible portion of the information on record.
The information given by the accused in such a situation may be such as, on scrutiny, might show only his remote connection and not direct connection with the objects recovered.
In such a situation, evidence of the bare fact of information having been given may cause serious prejudice.
Summing up to the Jury does not mean merely giving a summary of the evidence.
The Judge should marshall the evidence so as to bring out the lights and the shades, the probabilities and improbabilities, so as to give proper assistance to the Jury who are to decide which view of the facts is true.
The charge should not consist of along rambling repetition of the evidence, without any attempt to marshall the facts under appropriate heads, or to assist the Jury to sift and weigh the evidence so that they may be in A. position to understand which are the really important parts of the evidence and which are of secondary importance.
Ilu vs Emperor (A.I.R. and Nabi Khan vs King Emperor (A.I.R. , referred to.
Held, that as regards accused 4 there had been an error of law in admitting evidence of the test identification parades relating to him.
The admission of such inadmissible evidence would amount to a misdirection; but misdirection by itself would not be a ground for reversal under a. 537 of the Code unless such misdirection had in fact occasioned a failure of justice, nor is reception 906 of evidence inadmissible under section 162 of the 'Code necessarily fatal.
The Appellate Court has to see whether the reception of inadmissible evidence influenced the mind of the Jury so seriously as to lead them to a conclusion which might have been different but for its reception.
What the Appellate Court should do is to exclude the inadmissible evidence from the record and consider whether the balance of evidence is sufficient to maintain the conviction.
The Court of Appeal should take the whole case into consideration and determine for itself whether the verdict of the Jury was justified or whether there had in fact been a failure of justice.
The Court of Appeal is entitled to substitute its own verdict for the verdict of the Jury if on examining the record for itself it comes to the conclusion that the verdict of the Jury was erroneous or that there had been a failure of justice in the sense that a guilty man has been acquitted or an innocent man his been convicted.
Abdul Rahim vs King Emperor ((1946) L.R. 73 I.A. 77, Mushtaq Hussain vs State of Bombay ([19531 S.C.R. 809), Ilu vs Emperor (A.I.R. 1934 Cal, 847); Nabi Khan vs Emperor (A.I.R. ; Khabiruddin vs Emperor (A.I.R. 1943 Cal. 644) ; Surendra Dinda vs Emperor (A.I.R. and Mathews vs Emperor (A.I.R. 1940 Lahore 87), referred to.
|
iminal Appeal No. 22 of 1954.
1446 Appeal under Article 134(1) (c) of the Constitution from the Judgment and Order dated the 27th October 1953 of the Allahabad High Court in Criminal Reference No. 121 of 1953.
K. P. Gupta and A. D. Mathur, for the appellant.
K. B. Asthana and C. P. Lal, for the respondent.
March 15.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an appeal by leave granted by the High Court of Allahabad presumably under article 134(1)(c) of the Constitution.
The facts are simple.
Three persons including the appellant were, at the material time, parcel porters at the railway station Manikpur in the district Banda of Uttar Pradesh.
On the night of the 18th June, 1952, they were found by two watchmen of the Watch and Ward staff attached to the railway station, committing theft of certain packets of biscuits by breaking open a railway parcel containing those packets, which as parcel porters, they had occasion to handle.
First information of the same was lodged, before the Sub Inspector, Railway Police, by one Ram Prasad, Head Watchman.
The Railway Police filed the charge sheet under section 379 of the Indian Penal Code on the 20th June, 1952.
The case was taken cognizance of by the Railway Magistrate, Manikpur.
All the three accused pleaded guilty.
They were convicted by the Magistrate on the 15th July, 1952, and sentenced to a fine of Rs. 25 each.
Against this conviction the present appellant filed a revision to the Sessions Judge of Banda.
It is necessary at this stage to mention that under the U. P. Panchayat Raj Act, 1947, the Panchayati Adalats in U. P. have criminal jurisdiction in certain matters.
The point taken before the Sessions Judge was that by virtue of the said Act, the present case should have been tried by the Panchayati Adalat and that the Railway Magistrate had no jurisdiction.
This contention was accepted by the 'learned Sessions Judge.
He accordingly made a reference to the High Court for quashing the conviction 1447 and sentence.
It came before a Single Judge of the High Court who did not feel quite satisfied that the Railway Magistrate had jurisdiction.
But without deciding the question one way or the other, he declined to accept the reference on the ground that the revisional jurisdiction of the High.
Court was J. discretionary.
Somewhat 'curiously however, the learned Judge granted a certificate against his own judgment that the case is a fit one for appeal to the Supreme Court.
If the learned Judge thought fit to grant leave to appeal, he might well have himself decided the question involved so that we should have had the benefit of his consideration of the same.
To decide the question of jurisdiction thus raised it is necessary to notice the scheme of the U. P. Panchayat Raj Act, 1947 (U.P. Act XXVI of 1947) (here in after referred to as the Act) and a few relevant sections of the same.
It may be mentioned that the Act appears to have undergone some amendments in the year 1952 and recently in 1955.
These amendments have no application to the present case.
Under the Act, as it stood at the time of the commission of the offence and the conviction there for, the scheme thereunder is as follows: Under section 3, the State Government shall, by notification in the official Gazette, establish a Gaon Sabha for every village or group of villages.
Under section 42, the State Government or the prescribed authority shall divide a district into circles, each circle comprising as many areas subject to the jurisdiction of Gaon Sabhas as may be expedient.
The State Government shall also establish Panchayati Adalats for each, such circle, provided that the areas of Gaon Sabhas within each circle shall, as far as possible, be contiguous.
Under section 43, every Gaon Sabha in a circle shall elect five adults of prescribed qualification permanently residing within its jurisdiction to act as Panches in the Panchayati Adalat of that circle.
The Panches so elected by all the Gaon Sabhas in a circle shall form a panel.
Under section 44 all the Panches elected under section 43 shall elect from among themselves a person who is able to record proceedings and to act, 185 1448 as Sarpanch of the Panchayati Adalat.
As will be seen from the subsequent sections the Panchayati Adalat has jurisdiction to deal with all disputes and cases, both civil and criminal, arising within its area but it is enough for the present case to notice only those portions which relate to criminal jurisdiction Section 52(1) provides that certain specified ;Offences if committed within the jurisdiction of a Panchayati Adalat (which in this context must be taken to refer to local jurisdiction) shall be cognizable by such Panchayati Adalat.
The clauses of sub section (1) of section 52 specify the various classes of offences under the Indian Penal Code and under some other special and local Acts which are within the cognizance of the Panchayati Adalat.
Section 379, Indian Penal, Code, is one of the; sections, so enumerated and it is specifically provided that the jurisdiction of the Adalat in respect of this offence is only where the theft of the stolen property does not exceed Rs. 50. 'Section 51(1) provides that not with stand anything contained in the Code of Criminal Pro cedure, 1898, every case instituted under the Act shall be instituted before the Sarpanch of the Panchayati Adalat of the circle in which the offence is committed.
It is also provided under section 55 that no court shall take cognizance of any case which is cognizable under the Act by the Panchayati Adalat unless an 'Order has been passed by a Sub Divisional Magistrate under section.
Section 851 authorises a Sub Divisional Magistrate, on an application of a party or on his own motion, to cancel the jurisdiction of the Panchayati Adalat with regard to any pending case if there is an apprehension of miscarriage of justice.
Section 49 provides the machinery for the trial of 'Cases by the formation of benches to deal with the same.
It is necessary to set out the whole of that section in so far as it relates to criminal cases and it is as follows: "49.
(1) The Sarpanch shall, for the trial of every case, form a bench of five Panches from the panel (the panel referred to: in section 43 above noticed).
provided that at least one of the Panches in the bench 1449 shall be a person who is able to record evidence and proceedings.
(2) Every such bench shall include one Panch who resides in the area of the Gaon Sabha in which the complainant of a case resides and likewise one Panch in the area in which the accused resides and J. three Panches residing in the area of the Gaon Sabha in which neither party resides, provided that in police cases one Panch shall be such as may be residing in the Gaon Sabha in which the offence was committed, one Panch residing in the area of Gaon Sabha in which the accused resides and three Panches residing in the areas other than those mentioned above.
(3). . . . . . . . . . . . (4) Notwithstanding anything contained in this section, the State Government may, by rules, prescribe the constitution of special benches for ' determining any dispute arising between any parties or Gaon Sabhas or different circles 'or for any other purpose".
One of the rules framed with reference to this subsection which is relevant for the present purpose is rule 84 and is as follows: "For the purposes of trial or decision of any case or proceeding parties of which are residents of different circles or different districts or any one of the parties is a resident of a place not governed by the Act, the prescribed authority having jurisdiction over the Panchayati Adalat in which a case or proceeding is instituted or transferred for disposal shall constitute a special bench consisting of Panches of the said Panchayati Adalat and if convenient and possible may include a Panch of the other circle and shall appoint one of them as Chairman of the bench unless the Sarpanch is a member of it".
The question of jurisdiction arises with reference to ' the above provisions of the Act.
The charge sheet filed by the police shows that the theft of the property involved in the case is Rs. 3.
There can also be no doubt that the offence has been committed within the limits of Manikpur.
It would appear, therefore, prima 1450 facie that by virtue of sections 51 and 52, the Panchayati Adalat of Manikpur had jurisdiction to try the case.
If so, the jurisdiction of the regular Magistrate would appear to be barred under section 55 of the Act, since it is,not suggested that there has been any order under section 85.
But there is a serious difficulty in the way of the exercise of this jurisdiction by the Adalat.
The jurisdiction of the Adalat to try any criminal case has to be exercised by a bench of the Panches to be formed by the Sarpanch under section 49 of the Act.
The bench has to consist of five Panches of whom one is to be of the Gaon Sabha of Manikpur (since the offence was committed in that place and this is a police case) and another belonging to the Gaon Sabha of the accused and the other three from Gaon Sabhas outside the above two.
Where there is only one accused and that accused belongs to an area within Uttar Pradesh for which a Gaon Sabha has been formed under the Act or where there are more than one accused all belonging to the area of the same Gaon Sabha, the constitution of a bench of the Panchayati Adalat for the trial of such a case presents no difficulty.
But in the present case it is on the record that one out of the three accused by name Tulsi belongs to Jubbalpore in Madhya Pradesh.
It was, therefore, not possible to constitute a bench in strict compliance with section 49(2) of the Act to try his case.
Recourse had, therefore, to be had to section 49(4) and the rules framed thereunder.
The relevant rule 84 (which has been quoted above) no doubt provides for the constitution of special benches to try cases where there are more than one accused who are residents of different areas.
Now this rule in so far as it provides for cases wherein all the parties concerned are residents.of Uttar Pradesh may be unexception able.
But whether it is valid in so far as it provides 'for the exercise of jurisdiction in respect of a resident outside the State may be open to argument on more grounds than one.
In the present case, it is sufficient to consider whether this portion of the rule is valid, with reference to section 49(4) under which it is 1451 framed.
Section 49(4) authorises the Government to frame rules for the constitution of special benches "for determining disputes between parties of different circles or Gaon Sabhas or for any other purpose".
"Circles or Gaon Sabhas" mentioned herein has reference only to circles and Gaon Sabhas constituted. ' under the Act.
This does not authorise the framing of a rule in so far as it relates to a person belonging to a place outside the State.
Nor can the phrase "for any other purpose" in sub section (4) of section 49 whatever that may mean be construed so widely as to authorise a rule affecting such an outsider, assuming without deciding, that a statutory provision by a State Legislature can, directly or by delegation and in terms, validly provide for the exercise of such jurisdiction by a Panchayati Adalat.
We are clearly of the opinion that rule 84 in so far as it relates to the constitution of a special bench where one of the parties belongs to a place outside the State is ultra vires.
Hence no competent bench could be constituted under section 49 of the Act for the trial of the present case in which there are three accused of whom one is a person belonging to a different State.
Now, in these circumstances, it has to be considered whether the trial of this case by the ordinary criminal Court is barred.
The bar of the jurisdiction of the ordinary criminal Court is brought about by section 55 of the Act.
But it requires to be noticed that the bar which is brought about by the section, is a bar which relates to the case as a whole.
Because, in, terms, what it says is "no court shall take cognizance of any case which is cognizable under the Act by a Panchayati Adalat".
Under section 2(a) of the Act a "case" is defined as meaning "criminal proceeding in respect of an offence triable by a Panchayati Adalat" and "Panchayati Adalat" is defined as "including a bench thereof".
It is clear, therefore, that this bar has reference to the entire proceeding, i.e., as involving all the accused together.
Such a bar in.
respect of the entire case can be operative only where there is a valid machinery for the trial thereof.
In the present case in which at 'least one of the accused 1452 (though not this very.
appellant) is a person coming from an area outside the local extent of the Act, any bench of the Adalat that can be validly formed there .
under cannot try the three accused together and hence can have no Jurisdiction over the whole case.
The jurisdiction of the regular criminal court in respect of such a case cannot be taken away by the operation of section 55 of the Act.
It is to be remembered that the jurisdiction of the criminal courts under section 5 of the Code of Criminal Procedure is comprehensive.
That section enjoins, that all offences under the Indian Penal Code shall be investigated, enquired into, tried and otherwise dealt with "according 'to the provisions hereinafter contained".
To the extent that no valid machinery is set up under the U.P. Panchayat Raj ' Act for the trial of any Particular case, the jurisdiction of the ordinary criminal court under section 5 Code of Criminal Procedure cannot be held to have been excluded.
Exclusion of jurisdiction of a court of general jurisdiction, can be brought about by the setting no of a court of limited jurisdiction, in respect of the limited field, only if the vesting and the exercise of that limited jurisdiction is clear and operative.
Where, as in this case, there is no adequate machinery for the exercise of this jurisdiction in a specific case, we cannot hold that the exercise of jurisdiction in respect of such a case by the Court of general jurisdiction is illegal.
We are, therefore, of the opinion that the Railway Magistrate had the jurisdiction to try the case.
The appeal is accordingly dismissed.
Appeal dismissed.
| Three accused were convicted by a Magistrate under section 379 of the Indian Penal Code of the offence of theft of the value of Rs. 3 and sentenced to a fine of Rs. 25/ each.
The question for determination was whether the case should have been tried by a Panchayat Adalat constituted under the U. P. Panchayat Raj Act, 1947 and the Magistrate had no jurisdiction to try it.
Two of the accused belonged to U. P. State and the third belonged to Madhya Pradesh State.
Section 52(1) of the Act provides that certain specified offences (including the offence of theft when the value of stolen property does 1445 not exceed Rs. 50/ ) shall be cognizable by a Panchayat Adalat.
Section 55 provides that no court shall take cognizance of any case which is cognizable under the Act by the Panchayat Adalat.
Section 49 provides: " 49(1) The Sarpanch shall, for the trial of every case, form a bench of five Panches from the panel referred to in section 43.
(2) Every such bench shall include one Panch who resides in the area of the Gaon Sabha in which the complainant of a case resides and likewise one Panch in the area in which the accused resides and three Panches residing in the area of the Gaon Sabha in which neither party resides, provided that in police cases one Panch shall be such as may be residing in the Gaon Sabha in which the offence was committed, one Panch residing in the area of Gaon Sabha in which the accused resides and three Panches residing in the areas other than those mentioned above".
Rule 84 framed by the State Government under section 49(4) of the Act reads as follows: " For the purposes of trial or decision of any case or proceeding parties of which are residents of different circles or different districts or any one of the parties is a resident of a place not governed by the Act, the prescribed authority having jurisdiction over the Panchayati Adalat in which a case or proceeding is instituted or transferred for disposal shall constitute a special bench consisting of Panches of the said Panchayati Adalat and if convenient and possible may include a Panch of the other circle and shall appoint one of them as Chairman of the bench unless the Sarpanch is a member of it".
Held that inasmuch as in the present case one out of the accused belonged to Madhya Pradesh it was not possible to constitute a bench in strict compliance with section 49(2) of the Act to try his case.
Section 84 in so far as it relates to the constitution of a special bench where one of the parties belongs to a place outside the State of U. P. is ultra vires.
Hence no competent bench could be constituted under section 49 of the Act for the trial of the present case in which there were three accused one of whom was a person belonging to a different State.
Under the circumstances the jurisdiction of the ordinary courts was not excluded.
Exclusion of jurisdiction of a court of general jurisdiction, can be brought about by the setting up of a court of limited jurisdiction, in respect of the limited field, only if the vesting and the exercise of that limited jurisdiction is clear and operative.
The bar under section 55 of the Act relates to the case as a whole and has reference to the entire proceeding in respect of all the accused together.
|
: Criminal Appeal Nos.
452 53 of 1990.
From the Judgment and Order dated 23.3.1989 of the Rajasthan High Court in S.B. Cr. R. No. 426 and 325 of 1982.
Badridas Sharma, Manoj Jain, H. Shekhar, Anil Kumar Gupta, Indra Makwana, Prem Sunder Jha, Lahoty and Ms. Meeta Sharma for the Appearing Parties.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
Special leave granted.
These two criminal appeals are from the common Judgment of 812 the High Court of Rajasthan dated 23.3.1989 in S.B. Criminal Revision No. 426 of 1982 filed by the appellants Nos. 1, 2 and 3 and S.B. Criminal Revision No. 325 of 1982 filed by the appellants Nos. 4 and 5 herein.
On 21.4.1980 one Shanti Lal lodged a report at Bikaner Police Station stating therein that the appellants and two others namely Uttam Chand and Hanuman Chand at about 2 P.M that day were pelting stones at the informant 's house caus ing damage to it and that Durgabai, Tara and Sunita who at the relevant time were sitting at the chowk of the house were injured.
After recording F.I.R. No. 22 dated 21.4.
1980 and on completion of investigation police framed charges under section 147, 323, 325, 336 and 427 I.P.C. and the charge sheet was forwarded to the Judicial Magistrate No. 2 Bikaner under section 173 Cr.
After taking cognizance and after hearing the arguments, the Judicial Magistrate, Bikaner by his order dated 3.10.1980 in Criminal Case No. 165 of 1980 had been pleased to discharge the appellants Nos. 4 and 5, namely, Bijya Bai and Jiya Bai of all the charges levelled against them.
Appellants Nos. 1, 2 and 3, namely, Sohan Lal, Padam Chand and Vishnu were ordered to be charged only under section 427 I.P.C. on the basis of site inspection and injury report: On 25.2.82 the Assistant Public Prosecutor submitted an application to the Magistrate under section 216 Cr.
P.C. signed by Durga Bai stating: "The accused have been charged under section 427 I.P.C., whereas from the entire evidence and the medical evidence prima facie case under various sections i.e. 147, 325 and 336 I.P.C. is made out.
Hence it is prayed that accused be charged in accordance with the evidence and the charge be amended in the light of the evidence.
" After recording the plea of the accused persons, prose cution led evidence and examined P.W. 1 Shanti Lal, P.W. 2 Sampat Lal, P.W. 3 Chagan Lal on 12.5.82 and P.W. 4 Durga Bai on 8.7.82.
The learned Magistrate on 8.9.82 after referring to the aforesaid application submitted by A.P.P. dated 25.2.82 and heating the A.P.P. and the learned advocate for the accused and discussing the evidence and observing that if any ac cused was discharged of any charge under any section then there would be no bar for taking fresh cognizance and recon sideration against him according to section 2 16 Cr.
P.C. and that 813 the provision of section 319 Cr.
P.C. was also clear in that connection, recorded the following order: "Hence cognizance for offences under sections 147, 427, 336, 323,325 I.P.C. is taken against accused Sohan Lal, Padam Chand, Smt.
Vijya Bai, Jiya Bai, Vishnu, Hanuman Chand and Uttam Chand.
Orders for framing the charges against accused Sohan Lal, Padam Chand, Vishnu under the aforesaid sections are passed and accused Smt.
Jiya Bai, Vijya Bai, Uttam Chand and Hanuman Chand be summoned through bailable warrants in the sum of Rs.500 each.
File to come on 20.10.82 for framing the amended charge against the accused present.
Exemption from appearance of accused Vishnu Chand and Padam Chand is canceled until further order.
The advocate for the accused shall present the said accused in the Court in future.
" The above order was challenged in the aforesaid two criminal revision petitions in the High Court of Rajasthan and the same were dismissed by the order under appeal.
According to the learned Single Judge the question that arose for consideration in those revision petitions was whether a Magistrate was competent to take cognizance of the offence after recording some evidence against the accused persons who had been earlier discharged of those offences.
It was urged by the revision petitioners that having once discharged them it was not open to the Magistrate to proceed against them and the only remedy was to go in revision and the Magistrate could not review his own order.
The learned Judge dismissed the petitions taking the view that it was not a case of reviewing the order of discharge passed by the Magistrate but was a case of taking cognizance of the of fence on the basis of the evidence recorded by the Magis trate himself which was not in any way prohibited in law, and that under the provisions of section 3 19 Cr.
P.C. the Magis trate was fully competent to take cognizance of the offences on the basis of evidence recorded by him though for the same offences order of discharge was passed by him earlier.
Mr. B.D. Sharma, the learned counsel for the appellants, firstly, submits that the learned Magistrate while deciding the application dated 25.2.82 submitted by the A.P.P. under section 216 Cr.
P.C. committed error of jurisdiction in passing an order far beyond what was prayed in the application and could not have revised his own order of discharging the appellants.
Secondly, section 319 Cr.
P.C. was applicable only to a person not being the accused and the appellants having been 814 accused but discharged could not have been charged as was done in this case.
Counsel submits that the High Court having failed to notice this fact if this order is allowed to stand it will cause grave miscarriage of justice to the appellants.
The learned counsel for the State supports the impugned order submitting that the learned Magistrate found enough materials for taking cognizance and framing charges against the appellants after examining P. Ws. 1 to 4 and accordingly framed charges under sections 147, 323, 325 and 336 against them and summoned the appellants through bailable warrants and he had the jurisdiction to do so under section 3 19 Cr.
P.C. irrespective of the application under section 216 Cr.
P.C. filed by the A.P.P. We may now proceed to examine the contentions.
From the application submitted by the A.P.P. dated 25.5.82 there could be no doubt that what he prayed for was the charging the accused in addition to section 427 I.P.C. whereunder they were already charged, under sections 147, 323, 325 and 336 I.P.C. of which they were already discharged.
This application ex facie did not envisage the appellants Vijya Bai and Jiya Bai who were wholly discharged.under all the above sections.
Under section 219 Cr.
P.C. the court may alter charge.
It says: "2 16.
Court may alter charge.
(1) Any court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to t. he accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his de fence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the court, to prejudice the accused or the prosecutor as 815 aforesaid, the Court may either direct a new trial or ad journ the trial for such period as may be necessary.
(5) xxxxx Add to any charge means the addition of a new charge.
An alteration of a charge means changing or variation of an existing charge or making of a different charge.
Under this section addition to and alteration of a charge or charges implies one or more existing charge or charges.
When the appellants Vijya Bai and Jiya Bai were discharged of all the charges and no charge existed against them, naturally an application under section 216 Cr.
P.C. was not maintainable in their case.
In cases of appellants Sohan Lal, Padam Chand and Vishnu against whom the charge under section 427 I.P.C. was already in existence there of course could arise the ques tion of addition to or alteration of the charge.
The learned Magistrate therefore while disposing of the application under section 216 Cr.
P.C. only had no jurisdiction to frame charges against the appellants Vijya Bai and Jiya Bai.
In his order the learned Magistrate did not say that he has proceeding suo motu against Vijya Bai and Jiya Bai though he said that section 319 Cr.
P.C. was also clear in this connection.
As regards the other three appellants, namely, Sohan Lal, Padam Chand and Vishnu they were already accused in the case.
Section 2 16 Cr.
P.C. envisages the accused and the additions to and alterations of charge may be done at any time before Judgment is pronounced.
The learned Magistrate on the basis of the evidence on record was satisfied that charges ought also to be framed under the other sections with which they were charged in the charge sheet.
That was also the prayer in the A.P.P. 's application.
However the learned Magistrate invoked his jurisdiction under section 3 19 Cr.
P.C. which says: "3 19.
Power to proceed against other persons appearing to be guilty of offence (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may 816 be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub section (1) then (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard; (b) subject to the provisions of clause (a), the case may proceed at if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
" The crucial words in the section are, 'any person not being the accused. ' This section empowers the Court to proceed against persons not being the accused appearing to be guilty of offence.
Sub sections 1 and 2 of this section pro vide for a situation when a Court heating a case against certain accused person finds from the evidence that some person or persons, other than the accused before it is or are also connected in this very offence or any connected offence; and it empowers the court to proceed against such person or persons for the offence which he or they appears or appear to have committed and issue process for the pur pose.
It provides that the cognizance against newly added accused is deemed to have been taken in the same manner in which cognizance was first taken of the offence against the earlier accused.
It naturally deals with a matter arising from the course of the proceeding already initiated.
The scope of the section is wide enough to include cases insti tuted on private complaint.
There could be no doubt that the appellants 1, 2 and 3 were the accused in the case at the time of passing the impugned order by the Magistrate and as such section 319 Cr.
P.C. would not cover them.
Could appellants 4 and 5 be brought under that section.? Were they accused in the case? Precise ly when a person can be called the accused? Generally speaking, to accuse means to allege whether the person is really guilty of the crime or not.
Accusation according to 817 Black 's Law Dictionary means a formal charge against a person, to the effect that he is guilty of a punishable offence laid before a Court or Magistrate having jurisdic tion to inquire into the alleged crime.
In this sense accu sation may be said to be equivalent of information at common law which is mere allegation of prosecuting officer by whom it is preferred.
In the Code of Criminal Procedure 1973, hereinafter called the Code, the expression 'the accused ' has been used in a narrower sense.
Chapter XII of the Code deals with information to the police and their power to investigate.
Section 154 deals with information in cognizable cases and section 155 with information as to non cognizable cases and investigation of such cases.
Section 167, dealing with procedure when investigation cannot be completed in 24 hours, says: "(1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of 24 hours fixed by section 57, and there are grounds for believing that the accusation or information is well rounded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdic tion to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding 'fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnec essary, he may order the accused to be forwarded to a Magis trate having such jurisdiction." (Emphasis ours) Thus the words 'the accused ' have been used only in respect of a case where there are grounds for believing that the accusation or information is well founded. 'Information ' and 'accusation ' are synonymously used.
818 Chapter XV deals with complaints to Magistrate.
SectiOn 200 provides for examination of complainant.
Section 202 deals with postponement of issue of process and says in sub section (1) that any Magistrate, on receipt of a com plaint of an offence which he is authorised to take cogni zance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there sufficient ground for proceed ing.
Thus we find that the expression "the accused" has been used in relation to a complaint case under this section even before issue of process.
It also appears that in the Code the expression "the accused" is used after cognizance is taken by the Magistrate.
Chapter XVI of the Code deals with commencement of proceedings before Magistrates.
Section 204 dealing with issue of process uses the expression "the accused".
Under sub section (1) thereof if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding and the case appears to be (a) a summon scase, he shall issue his summons for the attendance of the accused, or (b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magis trate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
Under sub section (2), no summons or warrant shall be issued against the accused under sub section (1) until a list of the prosecution witnesses has been filed.
Thereafter the expression 'the accused ' has been used in subsequent sections.
Thus one is referred to as 'the accused ' even before issue of process.
Section 273 provides for evidence to be taken in presence of the accused in the course of trial or other proceedings.
The explanation to the section says that "accused" includes a person in relation to whom any proceed ing under Chapter VIII (Security for keeping the peace and Good Behavior) has been commenced under this Code.
In Chandra Deo Singh vs Prokash Chandra Bose & Anr., ; , during the pendency of the first complaint on which the Magistrate directed an inquiry, the nephew of the deceased filed a complaint alleging that the respondent No. 1 had committed the murder.
The Sub Divisional Magis trate directed the First Class Magistrate to inquire into that complaint and also to report.
During the 819 inquiry, apart from the witness produced by the complainant respondent No. 1 was allowed to be represented by a counsel and two persons who had been named in the First Information Report alongwith respondent No. 1 were examined with court witnesses.
The First Class Magistrate after conducting the inquiry under section made a report stating that a prima facie case had been made out against the persons mentioned in the first complaint.
He made anoth er report on the second complaint stating that no prima facie case has been made against respondent No. 1.
The Sub Divisional Magistrate directed the initiation of committal proceedings against the persons mentioned in the first complaint.
On a revision application filed by the complain ant of the second complaint the Sessions Judge directed the Sub Divisional Magistrate to conduct further inquiry against respondent No. 1 who took the matter in revision to the High Court.
The Revision Applications by respondent No. 1 and three others were allowed wherefrom there was an appeal to this Court by certificate.
The main contentions of the appellant before this Court were that the respondent No. 1 had no locus standi to appear and contest a criminal case before the issue of process.
This Court held: "It seems to us clear from the entire scheme of Chapter XVI of the Code of Criminal Procedure (1898) that an accused person does not come into the picture at all till process is issued.
This does not mean that he is precluded from being present when an enquiry is held by a Magistrate.
He may remain present either in person or through a counsel or agent with a view to be informed of what is going on.
But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor had the Magistrate any jurisdiction to permit him to do so." Joginder Singh & Anr.
vs State of Punjab and Anr., reported in ; is an authority for the propo sition that the expression "any person not being the ac cused" clearly covers any person who is not being tried already by the Court.
A criminal complaint was registered against 5 persons including the 2 appellants.
The police having found that the two appellants were innocent charge sheeted the remaining 3 persons and they were committed to trial.
At the trial evidence having shown the appellants ' involvement in the crime the prosecution moved an applica tion that they be tried along with the three accused and the Sessions Judge directed the appellants to stand trial to gether with other accused.
Their revision application in the 820 High Court was dismissed.
In their appeal in this Court it was inter alia submitted that Section 3 19 Cr.
P.C. was inapplicable to the facts of this case because the phrase "any person not being the accused" occurring in the section excluded from its operation an accused who had been released by the police.
This Court rejected the contention holding that the said expression clearly covered by person who has not been tried already by the Court and the very purpose of enacting such a provision like section 3 19 clearly showed that even a person who had been dropped by the police during investigation but against him evidence showing his involve ment in the offence came before the criminal court were included in the said expression.
In Municipal Corporation of Delhi vs Ram Kishan Rohtagi & Ors., [ ; , under the Food Adulteration Act, the respondent No. 1 was Manager of the company and the respondent No. 2 to 5 were the directors of the company including the company.
The High Court quashed the proceed ings against the directors as also against the manager.
This court set aside a part of the Judgment of the High Court which quashed the proceedings against the manager respondent No. 1.
It was held that where the allegations set out in the complaint did not constitute any offence and the High Court quashed the order passed by the Magistrate taking cognizance of the offence there would be no bar to the Court 's discre tion under section 3 19 Cr.
P.C. if it was made out on the additional evidence laid before it.
Section 3 19 gives ample powers to any Court to take cognizance against any person not being an accused before it and try him along with the other accused.
This Court clearly observed: "In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused.
But we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.
More than this we would not like to say anything further at this stage.
We leave the entire matter to the discretion of the Court concerned so that it may act according to law.
We would, however, make it plain that the mere fact that the proceedings have been 821 quashed against respondent Nos.
2 to 5 will not present the court from exercising its discretion if it is fully satis fied that a case for taking cognizance against them has been made out on the additional evidence led before it.
" It was pointed out that under the Cr.
P.C. 1973 the Court can take cognizance against persons who have not been made accused and try them in the same manner along with other accused.
In the old Code, Section 35 1 contained a lacuna in the mode of taking cognizance if a new person was to be added as an accused.
The Law Commission in its 41st Report (para 24.81) adverted to this aspect of the law and section 3 19 of the present Code gave full effect to the recommenda tion of the Law Commission by removing the lacuna which was found to exist in section 35 1 of the old Code.
In Dr. S.S. Khanna vs Chief Secretary, Patna & Ors., reported in ; this Court had to consider wheth er a person against whom a complaint was filed along with some other persons and who after an enquiry under section 202 of the Code was not proceeded against by the Court, could be summoned at a later stage under section 3 19 of the latter Code to stand trial for the same or a connected offence or of fences along with the other persons against whom process had been issued earlier by the Court.
It was held that having regard to the nature of the proceedings under section 202 of the Cr.
P.C. it may be difficult to hold that there is a legal bar based on the principle of issue estoppel to proceed under section 3 19 against a person complained against on the same material, if the Court has dismissed a complaint under section 203.
But the Court did not express any final opinion on the question.
In that case, however, the Magistrate decided to take action under section 3 19 of the Code on the basis of fresh evidence which was brought on record in the course of proceedings that took place after the enquiry contemplated under section 202 of the Code was over.
It was further held that even when an order of the Magistrate declining to issue process under section 202 was confirmed by a higher Court the jurisdiction of the Magistrate under section 3 19 remained unaf fected, if other conditions were satisfied and the autre low principle adumbrated in section 300 of the Code could not, howev er, apply to such a case.
In the instant case, Vijya Bai and Jiya Bai were dis charged by the Magistrate of all the charges and the three other appellants were discharged of the sections other than section 427 I.P.C. After the police submitted charge sheet against them the order of discharge, according to Mr. B.D. Sharma, could not be taken to be one under 822 section 203 but under section 245 which is included in Chapter XIX and deals with trial of warrant cases by the Magistrates.
This submission has not been refuted.
That section says: "245.
When accused shall be discharged. (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
" If that was so, the question is what would be the effect of the order of discharge? Should the protection resulting from such an order of discharge be allowed to be taken away by allowing the same Magistrate to take cognizance of the offence or offences against them at a later stage of the trial, without further enquiry where the order of discharge was not challenged or even if the order of discharge was taken in revision and the same was affirmed by the revision al court? Section 397 empowers the High Court or any Ses sions Judge to call for examining the records or any pro ceedings before any inferior criminal court within its jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed etc.
Section 398 empowers the High Court or the Sessions Judge to order inquiry.
It says: "On examining any record under section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordi nate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under section 203 or sub section (4) of section 204, or into the case of any person accused of an offence who has been discharged.
Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an oppor tunity of showing cause why such direction should not be made." 823 Thus this provision empowers, the Courts to direct further inquiry into any complaint which has been dismissed under section 203 or sub section (4) of section 204 or in the case of any person accused of the offence who has been discharged and no such order shall be made unless such person has had an opportunity of showing cause why such direction should not be made.
The question therefore is whether the necessity of making a further inquiry as envisaged in section 398 could be obviated or circumvented by taking resort to section 319.
As has already been held by this Court, there is need for caution in resorting to section 3 19.
Once a person was an accused in the case he would be out of reach of this section.
The word "discharge" in section 398 means discharge of an offence relating to the charge within the meaning of sections 227,239,245 and 249.
Refusing to proceed further after issue of process is dis charge.
The discharge has to be in substance and effect though there is no formal order.
The language of the section does not indicate that the word "discharge" should be given a restricted meaning in the sense of absolute discharge where the accused is set at liberty after examination of the whole case.
The cases of appellants 4 and 5 would be one of total discharge.
But it could not be said that they were not some of the accused in the case, or that cognizance was not taken of the offences against them.
A personmay be accused of several offences and he may be discharged of some of fences and proceeded against for trial in respect of other offences.
This was the position regarding appellants 1, 2 & 3, who were partially discharged.
The High Court did not subscribe to the view taken in State vs Gangaram Kalite reported in AIR 1965 Assam and Nagaland 9.
Therein a chargesheet having been filed against 9 accused persons in his Court the Sub Divisional Magistrate called for report from the police and on receipt of the final report ordered the discharge of the accused persons on 26.6.1961.
Subsequently on 22.8.1961, without any fresh chargesheet or a complaint, Sub Divisional Magistrate decid ed to proceed afresh against the accused persons and ordered summons to be issued to them, fixing a later date for evi dence.
On a reference by the Additional District Magistrate, calling into question the procedure followed by the Sub Divisional Magistrate a single bench of the High Court of Assam and Nagaland on the basis of Section 241 A of the old Code of the Criminal Procedure held that assuming that the discharge order had been validly passed, the Magistrate became functus officio so far as the case was concerned and unless there was a fresh complaint or a fresh chargesheet no action in the matter could have been taken by the Sub Divi sional Magistrate.
It was observed that as the order 824 passed was an order of discharge and not one of acquittal, a fresh complaint could under law have been entertained by the Magistrate and in the absence of any such complaint, any attempt to go back on the order of discharge passed by him and to revive the case, as if the case had not been dis charged, would amount in law to a review of the Judgment of the Magistrate which was not permissible having regard to section 369 of the Code of Criminal Procedure.
Section 369 provided that no Court when it had signed its Judgment, shall alter or review the same, except to correct clerical errors.
The High Court in the instant case followed the decision in Saraswatiben vs Thakurlal Hitnatlal & Anr., reported in AIR 1967 Gujarat 263, holding that if at one stage on the evidence before him the Magistrate found that there was no prima facie case against the accused, subsequently on en quiry as a result of further evidence if he felt that there was prima facie case against the accused whom he had dis charged under section 251 A (2) Cr.
P.C., it was open to him to frame a charge against the accused and that it was not necessary to take cognizance again and the Magistrate did not become functus officio.
The same view was taken in Amarjit Singh @ Amba vs The State of Punjab, reported in Punjab Law Reporter Vol. 85 (1983) p. 324.
The above views have to yield to what is laid down by this Court in the decisions above referred to.
The provi sions of section 319 had to be read in consonance with the provi sions of section 398 of the Code.
Once a person is found to have been the accused in the case he goes out of the reach of section 3 19.
Whether he can be dealt with under any other provi sions of the Code is a different question.
In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under section 398 of the Code may not be lost sight of.
This should be so because the complainant 's desire for vengeance has to be tempered with though it may be, as Sir James Stephen says; "The Criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite." (General view of the Criminal Law of England, p. 99).
The A.P.P. 's application under section 2 16, in so far as the appellants 1 to 3 were concerned could be dealt with under section 2 16.
Appellants 4 & 5 could be dealt with neither under section 2 16 nor under section 3 19.
In that view of the matter the impugned order of the Magistrate as well as that of the High Court in so far as the appellants 4 & 5, namely, Vijya Bai and Jiya Bai are concerned, have to be set aside which we hereby do.
The appeals are allowed to that extent.
G.N. Appeals allowed.
| One 'S ' lodged a First Information Report alleging that the appellants and two others were pelting stones at the house of informant, thereby causing damage to it and injur ing three women who were sitting at the chowk of the house.
After completing investigation the police framed charges under sections 147, 323, 325, 335 and 427 IPC and forwarded the charge sheet to the Judicial Magistrate under section 173 Cr.
P.C. Taking cognizance and after hearing the argu ments, the Judicial Magistrate discharged appellants 4 and 5 of all the charges and ordered that appellants 1, 2 and 3 be charged only under section 427 IPC.
Later, the Assistant Public Prosecutor submitted an application to the Magistrate under Section 2 16 Cr.
P.C. signed by one of the Prosecution Witnesses, for amending the charge claiming that a prima facie case under sections 147, 325 and 336 IPC was made out.
After hearing the parties, the Magistrate allowed the said application.
This order was challenged before the High Court by way of Revision Peti tions.
The Petitions were dismissed by the High Court, holding that it was not a case of reviewing the order of discharge passed by the Magistrate, but was a case of taking cognizance of the offence on the basis of evidence recorded by the Magistrate himself, which was not prohibited in law.
It was also held that under section 319 Cr.
P.C. the Magis trate was fully competent to take cognizance of the offences on the basis of evidence recorded by him though for the same offences order of discharge was passed by him earlier.
Aggrieved at the aforesaid order of the High Court, the appellants have preferred these appeals, by special leave.
On behalf of the appellants it was contended that the Magis trate 810 committed error of jurisdiction in passing the subsequent order and that he could not have revised his own order discharging the appellants.
It was also contended that section 319 Cr.
P.C. was applicable only to a person not being the accused, and so the accused could not have been discharged.
The Respondent State contended that the Magistrate found enough materials for taking cognizance and framing charges under sections 147, 323, 325 and 336 IPC and he had juris diction to do so under section 319 Cr.
P.C. irrespective of the application under section 216 Cr.
P.C. filed by the Assistant Public Prosecutor.
Allowing the appeals, HELD: 1.1.
Under Section 216 Cr. P.C., 'and to any charge ' means the addition of a new charge.
An alteration of a charge means changing or variation of an existing charge or making of a different charge.
Addition to and alteration of a charge or charges implies one or more existing charge or charges.
When the appellants 4 and 5 were discharged of all the charges and no charge existed against them, natural ly an application under section 216 Cr.
P.C. was not maintainable in their case.
The Magistrate therefore while disposing of the application under section 216 Cr.
P.C. only had no jurisdic tion to frame charges against the appellants 4 and 5.
In his order the Magistrate did not say that he was proceeding suo motu against them though he said that section 319 Cr.
P.C. was also clear in this connection.
[815B D] 1.2.
As regards appellants 1, 2 and 3, they were already accused in the case.
Section 216 Cr.
P.C. envisages the accused and the additions to and alterations of charge may be done at any time before record was satisfied that charges ought also to be framed under the other sections with which they were charged in the charge sheet.
That was also the prayer in the Assistant Public Prosecutor 's application.
However, the Magistrate invoked his jurisdiction under section 319 Cr.
P.C. [815E F] 2.
The provisions of section 319 had to be read in consonance with the provisions of section 398 of the Code.
Once a person is found to have been the accused in the case he goes out of the reach of section 319.
Whether he can be dealt with under any other provisions of the Code is a different question.
In the case of the accused who has been discharged under the rele vant provisions of the Code, the nature of finality to such order 811 and the resultant protection ' of the persons discharged subject to revision under s, 398 of the Code may not be lost sight of.
This should be so because the complainant 's desire for vengeance has to be tempered with.
[824E F] Chandra Deo Singh vs Prokash Chandra Bose & Anr., ; ; Joginder Singh & Anr.
vs State of Punjab and Anr.
, ; ; Municipal Corporation of Delhi vs Ram Kishan Rohtagi & Ors., ; ; Dr. S.S. Khanna vs Chief Secretary, Patna & Ors., ; ; relied on.
State vs Gangaram Kalite, AIR 1965 Assam and Nagaland 91 approved.
Saraswatiben vs Thakurlal Himmatlal & Anr., AIR 1967 Gujarat 263: Amarjit Singh @ Amba vs The State of Punjab, Punjab Law Reporter Vols.
85 (1983) p. 324, disapproved.
General view of the Criminal Law of England by James Stephen, p. 99 referred to. 3.
The Assistant Public Prosecutor 's application under section 216, in so far as the appellants 1 to 3 were concerned, could be dealt with under section 216.
Appellants 3 & 5 could be dealt with neither under section 216 nor under section 319.
The order of the Magistrate as well as that of the High Court in so far as the appellants 4 and 5 are concerned, are set aside.
[824G H]
|
Appeal No. 1795 of 1966.
Appeal from the judgment and decree dated March 1, 1962 of the Madras High Court in Appeals Nos. 66 and 166 of 1958.
S.T. Desai, B. Datta,, K. Jayaram, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellants.
A. K. Sen, T.V. Balakrishnan 'and Naunit Lal, for respon dents Nos. 1 and 2.
R. Gopalakrishnan, for respondents Nos. 5, 7 and 8.
The Judgment of the Court was delivered by Bhargava, J.
This appeal arises out of a suit for partition instituted by the two appellants claiming a share in the joint Hindu family property as successors in interest of one Kothandaraman alias Kumarasami Naidu who died in the year 1943.
When Kothandaraman died, he, his father Rangappa Naidu, his uncle Ramasami Naidu, and the latter 's son Kullan alias Kumaraswami formed a Joint Hindu family.
Kothandaram died leaving his widow Nagarathinammal who was plaintiff No. 2 and is appellant No. 2 in this appeal.
His father Rangappa Naidu was also alive, but he died in the year 1944.
On the death 'of Rangappa Naidu, Ramasami Naidu, his brother, 'became the 'karta ' of the joint family which included his son, Kullan alias Kumaraswami, 501 and plaintiff No. 2, the widow of Kothandaraman.
Ramaswami Naidu executed a will on 11th July, 1949 bequeathing portions.
of the joint family properties to various members of the family, because he was in actual possession of all the properties.
Subsequently, in the same year 1949, Ramasami Naidu died.
Some of the properties were transferred by persons who took ' possession of the properties in accordance with the will of Ramasami Naidu.
Then, according to plaintiff No. 2, she, on 26th January, 1955, adopted plaintiff No. 1, Tahsil Naidu, as a son and partition of the property was claimed on the basis that, after his adoption, Tahsil Naidu was entitled to a half share in the properties of the joint family.
It was further urged that the will made by Ramasami Naidu was void and ineffective, and that the various transfers of the properties were also not binding on him.
The suit was instituted by the two plaintiffs because defendant No. 1, Kullan alias Kumaraswami Naidu, who was under the guardianship of his mother Jayammal, defendant No. 2, refused to recognise the adoption, challenged its validity and did not accede to the request to give a share in the property to the plaintiffs.
The main question that arose in the suit for decision was whether the adoption of plaintiff No.2 by plaintiff No. 2 was valid.
It was the admitted case of the parties that Kothandaram had died without giving any authority to his wife Nagarathinammal to adopt a son.
The claim on behalf of the plaintiffs was that, even in the absence of authority from her husband, plaintiff No. 2 was entitled to adopt a son after obtaining the consent of the nearest sapindas of her husband The case put forward was that she gave a notice to Jayammal and Kullan minor to give their consent to the adoption of plaintiff No. 1 who was the son of Damodaran, brother of plaintiff No. 2, and who was further the son of the real sister of Kothandaraman.
However, without waiting for any consent being given by jayammal, plaintiff No. 2 proceeded with the adoption after obtaining consent of the next three nearest Sapindas, Rangappa Naidu, Devarajalu and Umavadan alias Rangan.
Though, at the first stage, there was some dispute about the pedigree, by the time the case came up before the High Court the pedigree, which was set up on behalf of the appellants in the plaint, was accepted as correct.
According to that pedigree, when Kothandaraman died, and even when the adoption took place, his grand mother Ammakutti Ammal was also alive.
She, in fact, died after the institution of the suit.
Apart from her, Kullan and Jayammal, the nearest Sapindas of Kothandaraman at the time of adoption were Rangappa Naidu, Devarajalu and Umavadan.
The plaintiffs therefore, claimed that the adoption was made with their consent as, under the Hindu Law applicable in Madras, it was not necessary to obtain the consent: 502 either of the minor Kullan, or of the two females Jayammal, widow of Ramasami Naidu, and Ammakutti Ammal, grandmother of Kothandaraman.
The suit was resisted on behalf of the defendants challenging the validity of the adoption on two grounds.
The first ground was that, in fact, the consent to the adoption was not obtained from Rangappa, Devarajalu and Umavadan as pleaded on behalf of the plaintiffs and, in any case, if the consent was obtained, it was not properly given by those Sapindas after exercising their independent judgment as required, so that.
the consent could not validate the adoption.
The second ground was that, admittedly, Ammakutti Ammal, the grandmother of Kothandaraman, was also a Sapinda and nearer in degree to the three persons consulted.
Since her consent.
was never obtained, the adoption must be held to have been resorted to without the consent of the nearest sapinda and was, consequently, invalid.
The trial Court held that the adoption was valid, and consequently, granted a preliminary decree for partition.
The High Court of Madras, in appeal, differed from the trial Court.
On the first question, the High Court did not express a definite opinion in its judgment and contended itself with stating that it is probable that the adoption was thought of by plaintiff No. 2 more with an idea of getting the properties than being actuated by a genuine religious motive and, further, that it was doubtful whether the plaintiffs had succeeded in proving that the adoption was made with the consent of the three sapindas, Rangappa Naidu, Devarajalu and Umavadan.
On the second point, however, the High Court accepted the plea put forward on behalf of the defendants that it was necessary for the adoption to be valid that the consent of Ammakutti Ammal, the grand mother of Kothandaraman, should have been obtained even though she was a female Sapinda.
The High Court repelled the contention of the plaintiffs appellants that it was not necessary to obtain the consent of female sapindas for a valid adoption and that Hindu law only requires consent of the nearest male sapindas.
On this view, the High Court allowed the appeal, set aside the decree passed by the trial Court and dismissed the suit of the plaintiffs.
Consequently, the plaintiffs have come up to this Court in this appeal by certificate under article 13 3 of the Constitution.
On the first point, Mr. S.T. Desai appearing on behalf of the appellants, drew our attention to the decision of this Court in V. T.S. Chandarasekhara Mudaliar and others vs Kulandaivelu Mudaliar and others(1) which appears to be the only case in which this Court had occasion to lay down the principles which (1) ; 503 applied to adoption in Madras.
The Court, ,in dealing with that case, reviewed the various decisions given by the Madras High Court and the Privy Council and indicated the principles that must be applied when, judging the effect of consent of sapindas on the validity of an adoption.
In that case, a conditional consent had been given; by some of the sapindas, whereas some others had refused to give consent to the adoption, and the controversy centered round, the question whether the consent given by some and refusal by ' others was proper.
The Court indicated that such a question depended for its solution on the answer to five interrelated questions which were formulated as follows : (1) what is the source and the content of the power of the widow to adopt a boy ? (2) What is the object of adoption ? (3) Why ' is the condition of consent of the sapindas for an adoption .required under the Hindu law for its validity (4)What is the scope of 'the power of the sapindas to give consent to an adoption by a widow and the manner of its exercise ? and (5) What are the relevant circumstances a sapinda has to bear in mind in exercising his power to give consent to an adoption ? The Court took into consideration the decisions till then rendered which had bearing on these questions and, consequently, we do not consider it at all necessary to again discuss all those cases.
On the first question, the Court held that a widow, either authorised by her husband to take a boy in adoption, or after obtaining the assent of the sapindas, has full discretion to make an adoption, or not to make it, and that discretion is absolute and uncontrolled.
She is not bound to make an adoption and she cannot be compelled to do so.
But, if .she chooses to take a boy in adoption, she acts as a delegate or representative of her husband and her discretion in making the adoption is strictly conditioned by the terms of the authority conferred on her by her husband; but, in the absence of any specific authority, her power to take a boy in adoption is coterminus with that of her husband, subject only to the assent of the sapindas.
Dealing with the next question, the Court held that it may safely be held on the basis of the authorities that the validity of an adoption has to be judged by spiritual rather than temporal considerations and that devolution of property is only of secondary importance.
It is ' the answer to the third and the fourth questions with which we are primarily concerned.
On the third question, the Court 504 held that the reason for the rule of obtaining consent of the sapindas is not the possible deprivation of the proprietary interests of the reversioners but the state of perpetual tutelage of women, and the consent of kinsmen was considered to be an assurance that it was a bona fide performance of a religious duty and a sufficient guarantee against any capricious action by the widow in taking a boy, in adoption.
Dealing with the fourth question, the Court quoted with approval the observations of Raiamannar, C.J., in Venkatarayudu vs Sashamma(1) to the following effect : "As Mayne (Hindu law, tenth Edition) remarks pages 221 and 222 it is very difficult to conceive of a case, where a refusal by a sapinda can be upheld as proper. 'The practical result of the authorities therefore appears to be that a sapinda 's refusal to an adoption can seldom be justified. ' It may be that in a case where the sapinda refused his consent to the adoption of a boy on the ground that the boy was disqualified, say, on the ground of leprosy or idiocy, the refusal would be proper.
In this case, we have no hesitation in holding that the refusal by the plaintiffs on the ground that the proposed boy was not a sapinda Or sagotra or a gnati was not proper." Ultimately, the Court summarised its decision as follows : "The power of a sapinda to give his consent to an adoption by a widow is a fiduciary power.
It is implicit in the said power that he must exercise it objectively and honestly and give his opinion on the advisability or otherwise of the proposed adoption in and with reference to the widow 's branch of the family.
As the object of adoption by a widow is two fold, name by, (1) to secure the performance of the funeral rites of the person to whom the adoption is made as well as to Offer pindas to that person and his ancestors and (2) to preserve the continuance of his lineage, he must address himself to ascertain whether the proposed adoption promotes the said two objects.
It is true that temporal consideration, though secondary in importance, cannot be eschewed completely but those considerations must necessarily be only those connected with that branch of the widow 's family.
The sapinda may consider whether the proposed adoption is in the interest of the well being of the widow or conducive to the better management of her husband 's estate.
But considerations ' such as the protection of the sapindas ' (1) 505 inheritance would be extraneouS, for they pertain to the self interest of the sapinda rather than the well being of the widow and her branch of the family.
The sapindas, as guardians and protectors of the widow, can object to the adoption, if the boy is legally disqualified to be adopted or if he is mentally defective or otherwise unsuitable for adoption.
It is not possible to lay down any inflexible rule or standard for the guidance of the sapinda.
The Court which is called upon to consider the propriety or otherwise of a sapinda 's refusal to consent to the adoption has to take into consideration all the aforesaid relevant facts and such others and to come to its decision on the facts of each case.
" It is these principles which we are called upon to apply in the present case to decide how far the requirements for a valid adoption have been satisfied when plaintiff No. 2 adopted plaintiff No. 1.
When this aspect of the case was being discussed in Court, learned counsel appearing for the respondents put forward the argument that, in the present case, the evidence shows that the motive of the widow, plaintiff No. 2, or, in any case, her dominant motive in making the adoption; was to ensure that a half share in the property of the family comes into the possession of herself and her adopted son, and that the adoption was not made with any spiritual considerations or for the performance of any religious duty.
Learned counsel, thus, wanted to challenge the motive of plaintiff No. 2 in adopting plaintiff No. 1.
On the other side, the argument was that, once the consent of the nearest sapindas is obtained by a widow before making an adoption, the question of motive of the widow making the adoption becomes irrelevant and should not be inquired into.
The principles laid down in the case cited above show that the consent of a kinsman was considered to be an assurance that the adoption was in pursuance of a bona fide performance of religious duty and would be a sufficient guarantee against any capricious action by the widow in taking the boy in adoption.
This principle laid by this Court, thus, does indicate that the motive of a widow need not be enquired into, because the very fact of the consent being given by the sapindas is a guarantee that the adoption is being made for proper ' reasons.
In the present case, however, we find that, even on facts, the submission made on behalf of the respondents cannot be accepted, because there is evidence to show that the adoption was made by plaintiff No. 2 with the object of proper performance of ceremonies for the benefit of her deceased husband and other ancestors, though plaintiff 506 No. 2 also had in mind the advantage she would receive because her own adopted son would obtain rights to the property and she may be better looked after.
The intention of the widow, in making the adoption, was clearly expressed by her in 'the notice Ext.
A 2 sent on 6th December, 1954 by her counsel to defendant.
2 Jayammal who was .the guardian of defendant No. 1, Kurta Naidu, the latter being the person who was then holding the family property.
It was stated in that notice "that my client is very anxious to adopt a son to her husband Kothandarama Naidu alias Kumarasami Naidu for securing a good son to her late husband performing his ceremonies offering oblations perpetuating the progeny (Line) and to save the soul of my client 's husband from what is known as 'Puth Narakam ' ".
Similar expression of her intention is contained in another letter Ext.
A 4 which was sent by the Advocate on her behalf to one of the Sapindas, Devarajulu Naidu, asking for his consent to the adoptions.
It has also come in evidence that letters similar to the one sent to Devarajulu Naidu were also sent to the other two nearest Sapindas Rangappa Naidu and Umavadan in order to obtain their consent.
In addition, even in Court, plaintiff No. 2 appeared as a witness and stated on oath that "the adoption was to my husband and for perpetuating and to do the ceremonies".
It was argued on behalf of the respondents that, even though these expressions of the reason for adoption by the widow exist in the documents and in oral evidence, the further facts elicited show that her dominant motive was in fact to obtain possession of property and that the consideration of spiritual benefit to her husband did not exist.
It is true that, in cross examination, some facts have been elicited which indicate that considerations relating to material benefit also existed when plaintiff No 2 decided to make the adoption.
She herself admitted that the subject of adoption was broached to her about a year before the adoption by one Ethirajulu Naidu who said that, if she adopted a boy, he would get the property and she could depend on it.
According to her, the same person advised her to take plaintiff No. 1 in adoption.
Even the consenting sapinda Rangappa, who appeared as a witness, admitted in cross examination that the second plaintiff had no one to feed her, and her relatives did not call her; and that was the reason why she made ' the adoption.
These answers elicited in cross examination do not, however, in our opinion, show that the question of spiritual benefit or performance of religious ceremonies was not one of the considerations in making the adoption.
In fact, on the evidence, it appears that Rangappa Naidu, when he gave his consent, had been told why plaintiff No. 2 was going to make the adoption in the written letter sent to him; and it seems that his consent was given in view of that consideration, though, in addition, as he has stated on oath, 507 he also took into account the fact of material benefit to plaintiff No. 2.
This takes us to the crucial point whether, in this case, the consent of the sapindas that was obtained by plaintiff No. 2 before adopting plaintiff No. 1 was a proper consent which would validate the adoption.
Of the three consenting sapindas, Rangappa Naidu was the only one who was examined in court and he clearly stated m his examination in chief that he gave his consent in writing vide letter Ext.
7 A. He added that printed invitations were issued in his name and he and his cousin Devarajulu were present at the adoption.
A deed of adoption was written and executed and he and Devarajulu both attested it.
He also definitely stated that he made no profit at all out of this adoption, nor was he given any promise that he would get any property by giving his consent to the adoption.
To challenge this evidence, learned counsel for the respondents drew our attention to some of the statements made in cross examination.
Rangappa Naidu, when questioned, seems to have admitted that he signed the letter of consent at the place of adoption, even though his consent letter Ext.
A 7 purports to have been sent much earlier than the date of adoption.
It seems to us that, being an old man of 80 years of age, he had some confusion in his mind about making the signatures on various documents.
In his examination in chief, he has clearly stated that he had signed the deed of adoption at the time of adoption and it means that, when cross examined, he became confused and gave his answer under the impression that deed of adoption was also the consent letter signed by him.
In our opinion, the statement made in cross examination that he signed the letter of consent at the place of adoption was really intended to refer to his signatures on the deed of adoption which signatures he must have made after expressing again his consent to the adoption.
That his mind was confused appears from the further circumstance that he stated in cross examination that the name of the boy to be adopted was not mentioned in the invitation issued in his name, though, in fact, the name is actually mentioned.
We are, therefore, unable to accept the submission made on behalf of the respondents that the consent of Rangappa Naidu has not been properly proved in this case.
Apart from the consent of Rangappa Naidu, the plaintiffs also relied on the fact that consent was also given by the only other two equally remote sapindas Devarajulu and Umavadan.
The High Court, in its judgment, appears to have held that the consent of these persons was not proved satisfactorily by the plaintiffs, though the trial Court had taken the contrary view.
It is true that, in this case, Devarajulu and Umavadan were not examined.
The consent letters signed were, however, put on the file.
Deva Sup.
CI/70 2 508 rajulu 's signature on the consent letter was proved by Damodaran Naidu who obtained the letter of consent and who is the natural father of plaintiff No. 1.
Damodaran Naidu clearly proved that this letter was signed in his presence by Devarajulu.
The High Court expressed the view that this consent letter cannot be taken to be proved on the ground that Devarajulu himself was not examined as a witness, and incorrectly ignored the fact that the document was proved by the evidence of Damodaran Naidu.
Reference, in this connection, was also made to the statement of plaintiff No. 2 herself that she had obtained the consent of Devarajulu about a month before she went to the Vakil for advice about adoption and that she did not take the consent from him in writing.
The fact that she did not herself obtain the written consent from Devarajulu does not.
, however, detract from the value to be attached to the written consent which was obtained by her brother Damodaran and not by herself.
No doubt, there are some petty discrepancies between the evidence of these witnesses, but we do not think that they are of such a nature as would justify our disbelieving them.
In our opinion, the consent of Devarajulu to the adoption was also properly established.
In the case of Umavadan, of course, there is a discrepancy that, according to plaintiff No. 2 herself, she obtained his consent when she met him 10 days after the adoption, though the consent letter by him purports to have been signed earlier.
This admission was made by plaintiff No. 2 in her cross examination, and, in view of this admission, we do not think we will be justified in differing from the decision of the High Court that Umavadan 's consent has not been properly established.
In this case, there was also some argument as to his capacity to give consent.
The case seems to have been put forward that he was deaf and dumb and, consequently, incapable of giving evidence, though plaintiff No. 2 herself in her cross examination made a qualification that Umavadan could hear, though he was dumb.
It also appears that he can write and make his signature.
It is possible that he may have given his consent in writing when asked orally or in writing, because he could both hear and read; but, as we have said earlier, in view of the admission of plaintiff No. 2 that she obtained his consent 10 days after the adoption, we must disregard the consent given by him.
Thus, the adoption is supported by the consent given by two out of three equally near sapindas.
The effect of this consent was challenged on two grounds.
One was that t, he consent should have been obtained from all the ' three and not merely two.
In our opinion, the consent of the majority would be sufficient to satisfy the requirement that a widow, in making the adoption should consult the nearest sapin 509 das.
It is not essential that the consent should have been obtained from all the three, particularly when Umavadan was at least partially incapacitated as being dumb.
The second ground, on which the value of the consent by these sapindas was challenged, was that no evidence has been produced to show that, when giving their consent, they had consciously applied their mind to the question whether the widow was making the adoption for the performance of a religious duty or for spiritual benefit to the husband of the adoptive mother and his ancestors.
As we have indicated earlier, out of the two consenting sapindas, only Rangappa Naidu has been examined and, in his evidence, he has not made any such specific statement.
That, in our opinion, is not very material, because, as the principles laid down in various cases show, the very fact that consent is given by a sapinda implies that the adoption is considered desirable and is being resorted to by the widow for spiritual and religious considerations and not out of caprice.
Every sapinda knows that, as soon as an adoption is made, spiritual benefit will accrue to the deceased husband and that the existence of the adopted son will perpetuate his line.
Such consciousness is implied in giving the consent.
It is only when the consent is being refused by a sapinda that it becomes relevant to see whether the refusal was justified on the ground that the adoption was not being made with such objects.
The mere omission of counsel in asking Rangappa Naidu whether he had considered the question of spiritual benefit at the time of giving consent cannot, therefore, imply that the consent was given for other considerations.
A consent would, no doubt, be of no value for validating an adoption if the person giving the consent has his own personal motives.
In the present case, Rangappa Naidu clearly stated that he was not to get any benefit at all out of the adoption of plaintiff No. 1 by plaintiff No. 2.
There is also, however, the further fact that, according to the evidence, letters were sent to both Rangappa Naidu and Devarajulu Naidu in which the reason for adoption was expressed by the counsel for plaintiff No. 2.
As we have noticed earlier, they gave their written consent in response to those letters, and it can be presumed that the consent was given in view of the object indicated in those letters asking for their consent.
There is the further circumstance that, according to the evidence, both Rangappa Naidu and Devarajulu were present at the adoption and signed the adoption deed.
They are both literate.
The adoption deed clearly mentions the purpose of adoption which is the proper purpose for a widow in making the adoption; and it would not be unjustified to infer that both these persons had consented to the adoption again at that time in view of the object men 510 tioned in the deed of adoption.
On facts also, therefore, it appears to be justified to hold that the consent was given by these two sapindas for proper reasons and the fact that they had given their consent would ensure the validity of the adoption.
On the second question, one aspect that has Considerable bearing is the reason which led the law givers in the Hindu law to insist on the right of a widow to adopt a son being contingent either on conferment of authority on her by her husband, or, in the absence of such authority, on the assent of the nearest sapindas.
This question was also considered to some extent by this Court in the case of V.T.S. Chandarasekhara Mudaliar(1) where the Court began by noticing that the basis for the doctrine of consent may be discovered in the well known text of Vasishta: "Let not a woman give or accept a son except with the assent of her Lord." The Court then also quoted two texts of Yagnavalkya in Chapter 1, verse 85 and in Chapter 2, verse 130 which are ordinarily relied upon to sustain the said doctrine: "Let her father protect a maiden; her husband a married woman; sons in old age; if none of these, other gratis (kinsmen).
She is not fit for independence." "He whom his father or mother gives in adoption is Dattaka (a son given).
" After noticing briefly the summary of the evolution of the law by subsequent commentators, the Court proceeded to hold that the said, doctrine is mainly rounded on the state of perpetual tutelage assigned to women by Hindu law expressed so tersely and clearly in the well known text of Yagnavalkya in Chapter 1, verse 85, quoted above.
The Court then took notice of the decision in The Collector of Madura vs Moots Ramalinga Sathupathy & Connected Cases(2) (popularly known as, and hereinafter referred to as, the 'Ramnad Case ') and referring to it as the leading decision approved of the observations of Sir James William Colvile who made a real contribution to the development of this aspect of Hindu law which were to the following effect: "But they (the opinions of Pandits) show a considerable concurrence of opinion, to the effect that, where the authority of her Husband is wanting, a Widow may (1) [1963,] 2 S.C.R. 440.
(2) 12 M.I.A. 397.
511 adopt a Son with the assent of his kindred in the Dravida Country.
" The Court also indicated that the reason for this rule was clearly stated in that judgment as follows : "The assent of kinsmen seems to be required by reason of the presumed incapacity of women for independence, rather than the necessity of procuring the consent of all those whose possible and reversionary interest in the estate would be defeated by the adoption.
" In Veera Basavaraju and Others vs Balasurya Prasada Rao & Another(1), their Lordships of the Privy Council reiterated the observations made in the case of Raghanadha vs Brojo Kishoro(2) to the following effect : "But it is impossible not to see that there are grave social objections to making the succession of property and it may be in the case of collateral succession, as in the present instance, the rights of parties in actual possession dependent on the caprice of a woman, subject to all the pernicious influences which interested advisers are too apt in India to exert over women possessed of, or capable of exercising dominion over, property." Thus, the entire case law on the subject clearly indicates that the requirement for consent of a sapinda for adoption by a widow who has not obtained the consent of her husband in his lifetime was laid down, because Hindu law considers a woman incapable of independent judgment and proceeds on the basis that a woman is likely to be easily misled by undesirable advisers.
This aspect, in our opinion, has considerable bearing on the question whether a widow making an adoption must or need not obtain the consent of another senior woman in the family who is herself a widow.
It seems to us that, if a woman is incapable of exercising independent judgment in the matter of deciding whether she should adopt a son to her deceased husband, she can hardly be a competent adviser to another widow on the same matter.
In the present case, for example, if the grand mother Ammakutti were to decide to adopt a son, she would have to obtain consent of Sapin das in the absence of authority from her deceased husband and that requirement would arise because of her incapacity to exercise independent judgment.
If she cannot exercise an independent judgment in the matter of making an adoption herself, it would follow that she would not be able to exercise an independent (1) [1918] L. R. 45 I. A. 265.
(2) [1876] L.R. 3 I.A. 154.
512 judgment to advise plaintiff No. 2, her grandmother widow.
The advice of a person incapable of independent judgment would hardly ensure that the adoption to be made by a widow is proper and justified.
On the principles thus recognised in Hindu law, it would be justified to hold that a Hindu widow, even if she happens to be the nearest sapinda to the widow seeking to make the adoption, would not be a competent adviser and, consequently, there can be no requirement that her consent must be obtained for validating the adoption.
The principles clearly point to the conclusion that the consent must be obtained from the nearest male sapinda.
Learned counsel appearing for the respondents, in support of the decision of the High Court, drew our attention to the decision of their Lordships of the Privy Council in Ramnad Case where it was held : "Upon the whole, then, their Lordships are of opinion that there is enough of positive authority to warrant the proposition that, according to the law prevalent in the Dravada Country, and particularly in that part of it wherein the Ramnad zamindary is situate, a Hindoo Widow, not having her husband 's permission, may, if duly authorised by his kindred, adopt a son to him." He emphasised the fact that, in laying down this principle, the word used was "kindred" without any qualification whether the kindred should be a male or female.
Reliance was also placed on the fact that, in that case, the Privy Council held the adoption made by the widow to be valid, inter alia, on the ground that the consent of a senior female kindred had been obtained.
In that case, the widow had adopted a son with the consent of distant agnate a samanodaka who was the natural male protector of the widow in the absence of nearer male relations, as well as with the consent of the mother in law and other persons who were proved beyond all question to have assented to the adoption.
This second aspect of the decision of the Privy Council in attaching value to the consent of the mother in law for purposes of holding the adoption to be valid was, however, based on the peculiar facts and circumstances of that case.
Their Lordships found that the mother in law was unquestionably the heir to the property next in succession to the widow who was making the adoption, and the mother in law had been specifically.
nominated by the deceased husband to look after his widow.
He had addressed.
a letter to the ColleCtor, of ,the District in which he specifically stated that he had made arrangement that 'his mother, Who was his guardian in every respect, and who had held chief right to the 513 zamindary, was to enjoy the zamindary and all other things; was to pay poishkist to the Cirkar, and was to maintain his royal wife, his daughter, and her younger sister, a small child; when the children grew up and attained proper age, she was to make an arrangement with regard to their right to the zamindary, and continue the same.
In that case, therefore, it is clear that the opinion of the mother in law was considered of some importance by the Privy Council because of this special authority granted to her by the husband of the widow in his own life time.
The case cannot be taken as deciding that, in every case, the consent of a mother in law would be competent to make an adoption valid, or that, in order to make a valid adoption, her consent must be obtained on the ground that she is the nearest kindred alive.
On this aspect of the Ramnad Case, in order to strengthen his argument, learned counsel referred to a decision of the Madras High Court in Rajah Damara Kumara Venkatappa Nayanim Bahadur Varu vs Darnara Renga Rao(1) in which it was held that an adoption by a junior widow without the consent of the senior widow was bad and could not be held to be valid.
It was argued by the counsel in that case that the senior widow was entitled to be consulted as one of the kindred, while, on the other side, it was argued that a widow is not a sapinda but only succeeds as one of the enumerated heirs.
Wallis, C.J., in giving his decision, said : "I do not think it necessary to go into this question, but having regard to the decision of their Lordships in Ramnad Case that the assent of the mother in law Mothuveroyee in that case was operative in support of the adoption, I should be disposed to hold that the senior widow was one of the kinsmen whom it was the duty of the junior widow to consult and that the adoption was bad for failing to consult her.
" We are unable to accept the view expressed by Wallis, C.J., that the principle laid down in Ramnad Case justified an inference that it was necessary to obtain the consent of the nearest sapinda if she happened to be a widow.
It is true that, in the Ramnad Case, the adoption made by the widow was held to be valid, after attaching some weight to the opinion of the mother in law, but that was primarily because she had been given a special position by the writing left by the widow 's husband when addressing his letter to the Collector.
Another.
point to be kept in view when considering this Madras decision is that it is a well recognised principle in Hindu law that, if there are two widows, the senior widow has the preferential right to make an adoption; and it may ' (1) I.L.R. 514 be a good consideration, when judging the validity of an adoption by a junior widow, to see whether she did so after obtaining the consent of the senior widow whose preferential right would thus be defeated.
A similar interpretation of the Ramnad Cose was accepted in another decision of the Madras High Court in Maharaja Kolhapur vs
section Sundaram Ayyar and 15 Others(1) where it was held that the consent of the Queen mother was sufficient in Hindu law to validate the adoption made by the widow Rani, her daughter in law.
In arriving at this decision, Kumaraswami Sastri, J., held : "It is clear from the decision of their Lordships of the Privy Council in The Collector of Modura vs Mootoo Ramalinga Sathupathy (Ramnad Case) that the consent of Avu Bai Saheba, the mother of Sivaii, would validate the adoption in the absence of any other Sapindas." That case, again, had a special feature of its own, viz., that the Court found that there were no sapindas, except Avu Bai Saheba in existence.
It was held that, if there was no male sapinda at all, it would be wrong to hold that the widow would not be capable of making an adoption at all and it was for this reason that it was held that the consent of the female sapinda, viz., the mother in law was sufficient to validate the adoption.
This interpretation of the decision of the Privy Council in the Ramnad Case cannot, however, be accepted as correct in view of the subsequent decisions by the Privy Council itself where the interpretation put was different.
Mr. Ameer Ali, speaking for the Judicial Committee, in the case of Veera Basavaraju(2), said : "The Ramnad Case established the proposition that, in the Dravada Country, under the Dravadian branch of the Mitakshara law there in force, in the absence of authority from her deceased husband a widow may adopt a son with the assent of his male agnates." In that case, thus, the Privy Council held that the reference to kindred or kinsmen, whose consent is to be obtained by a widow for a valid adoption, in Ramnad Case was intended to cover male agnates only.
In an other subsequent case of Ghanta China Ramasubbayya & Another vs Moparthi Chenchuramayya, (1) I.L.R. 48 Mad.
1,204.
(2) [1918] L.R. 45 I.A. 265.
515 Minor, and Others(1), the Privy Council referred to this decision of Mr. Ameer Ali, and, after quoting the extract reproduced by us above, held : "The words 'kindred and kinsmen ', words of general significance, used in the Ramnad case, are here interpreted to mean 'male agnates ' and this interpretation is amply borne out by the facts of that case as already stated.
Similar expressions appearing in the other cases should also be similarly interpreted.
" Thus, the interpretation placed on the decision in the Ramnad Case by Mr. Ameer Ali in Veera Basavaraju 's case(2) was further affirmed by the Privy Council in this latest case of Ghanta China Ramasubbayya(1).
In view of these decisions of the Privy Council, we do not think that we can accept the interpretation put on the decision in Ramnad Case in the judgments of the Madras High Court.
On the other hand, the correct interpretation of that case was further followed by the High Court of Andhra Pradesh in K. Varadamma vs Kanchi Sankara Reddi & Others(a).
It was urged by learned counsel that the two decisions of the Privy Council in the case of Veera Basavaraju(a) and Ghanta China RamasubbaYYa(1) were not concerned with the question whether it is necessary to obtain the consent of the nearest female sapinda or not.
In the former case, the adoption had been made with the assent of the remote sapinda without the consent of the nearest sapinda.
In the latter case, the question was whether the consent of the daughter 's son, who would, under Hindu law, be a preferential heir to the deceased husband, was necessary when consent was obtained from a sapinda who, in the order of succession, would come after the daughter 's son.
It was urged that the Privy Council in neither of these two cases was called upon to pronounce on the question whether, by using the expression "kindred or kinsmen" in Ramnad Case, it was intended to refer to male agnates only, or to all agnates whether male or female.
Even though this is correct, we consider that the subsequent interpretation put on the decision in Ramnad Case in these decisions by the Privy Council is entitled to great weight.
Further, the view expressed in these decisions bears out our opinion which we formed on the basis of the position given to a woman in Hindu law as a person incapable of exercising independent judgment.
Consequently, we must hold that the High Court was wrong in holding the adoption of plaintiff (1) L.R. 74.
I.A. 162.
(2) [1918] L.R. 45 I.A. 265 (3) A.I.R. 1957 A.P. 933.
516 No. 1 by plaintiff No,. 2 in the present case as invalid and the decision of the High Court must be set aside.
As a result, we set aside the decision given by the High Court.
The case will now go back to the High Court for deciding other issues which were in dispute before that Court and which the High Court left undecided because of its view that the suit of the plaintiffs had to be dismissed on the ground that the adoption of plaintiff No. 1 by plaintiff No. 2 was invalid.
The costs of this appeal shall be payable by the respondents to the appellants.
| A person accused of an offence under the Indian Penal Code and committed in a district which after the partition of India became part of Pakistan cannot be tried for that offence by a Criminal Court in India after his migration to India and acquiring thereafter the status of a citizen of India.
The fact that after the commission of an offence a person becomes domiciled in another country, or acquires citizenship of that State does not confer jurisdiction on the Court of that country retrospectively for trying offences committed and completed at a time when that person was neither the national of that country nor was he domiciled there.
According to section 4 'of the Indian Penal Code and section 188 of the Code of Criminal Procedure if at the time of the commission of the offence the person committing it is a citizen of India then even if the offence is committed outside, India he is subject to 698 the jurisdiction of the Courts in India, as qua citizens the jurisdiction of Courts is not lost by reason of the Venue of an offence.
If, of however, at the time of the commission of the offence the accused person is not a citizen of India these sections have no application at all.
The term "domicil" does not admit of an absolute definition.
The simplest.
definition of domicil is: That place is properly the domicil of a person in which his habitation is fixed without any present intention of removing therefrom.
The fact is that the term domicil can be illustrated but cannot be defined.
Craignish vs Craignish ([1892] 3 Ch.
180, 192) referred to.
|
Appeal NO. 1317 of 1975.
(From the Judgment and Order dated 8 10 1974 of the Bombay High Court in Appeal No. 73 of 1974) P.H. Parekh and Miss Maniu Jetley, for the Appellant section K. Dholakia and R.C. Bhatia, for the respondent.
F.S. Nariman and B.R. Aggarwal, for the intervener.
The Judgment of the Court was delivered by CHANDRACHUD, J.
A question of practical importance concerning the dying profession of Solicitors arises in this appeal by special leave.
The question is whether the bill of costs of a Solicitor or an Attorney who has rendered profes sional services to his client in the City Civil Court can be taxed by the Taxing Master, Original Side, Bombay High Court, and if so, whether it can be taxed on the Original Side scale.
The dual system which was prestigiously in vogue in Bombay since the inception of the Bombay High Court has been abolished with effect from January 1, 1977 and there fore the question is not of growing importance.
All the same, though the question will by and by cease to have the importance which it has to day, we are informed at the bar that quite a few cases are kept pending in Bombay to await the decision of this appeal.
Certain properties belonging to appellants were attached by the City Civil Court, Bombay, in execution of a decree passed by a Court in Bellary.
The appellants appeared in the execution proceedings through a firm of Solicitors, M/s Raghavayya Nagindas & Co., respondents herein, who by the vakalatnama executed in their favour by the appellants, agreed to act, appear and plead for them in the City Civil Court.
The respondents took out three Chamber Summonses on behalf of the appellants for raising the attachment, which was eventually raised in about 1960.
Thereafter, they submitted three bills to the appellants for their costs and remuneration.
Since the bills remained unpaid, the respond ents obtained on February 8, 1972 an order from the Prothon otary of the High Court directing the TaXing Master to tax the bills 354 The appellants appealed against the order of the Prothono tary by way of Chamber Summons which was dismissed by the Chamber Judge on October 26, 1972 with liberty to the Taxing Master to decide whether respondents were entitled to be remunerated on the Original Side scale of fees, as between an Attorney and.
client.
The Taxing Master rejected the appellants ' contention, taxed the respondent bills according to the scale of fees applicable on the Original Side of the High Court and directed the issuance of an allocatur.
Before the respondents could obtain a payment order on the basis of the allocatur, the appellants took out a Cham ber Summons.on May 7, 1973 challenging the order of the Taxing Master.
That Chamber Summons was dismissed by the Chamber Judge whose decision has been confirmed in appeal by a Division Bench.
Three contentions were raised by the appellants in the High Court: (1) A Solicitor 's bill for costs and remunera tion in respect of the work done by him in the City Civil Court cannot be taxed by the.
Taxing Master, Original Side, High Court; (2) The bill, in any event, cannot be taxed according to the scale of fees applicable on the Original Side as between an Attorney and client; and (3) The recovery of the amount taxed by the Taxing Master is barred by limi tation under article 113 of the .
The High Court rejected all these contentions by its judgment dated October 8, 1974.
Mr. Parekh, appearing for the appellants before us, did not press the third point regarding limitation and rightly so.
Article 113 of the , though residuary, applies to suits and cannot govern the special form of remedy available to the Attorneys for recovering their fees.
Proceedings in pursuance of that remedy are governed by rule 573(ii)(a) of the Original Side RUles and the proviso there to.
The proceedings for recovery of fees under those provi sions are not barred by time.
Counsel has, however, pressed the first two contentions with some zeal.
We will first take up for consideration the primary question whether the Taxing Master has jurisdiction at all to tax an Attorney 's bill of costs for professional services rendered by him to his client in connection with a litigation in a court other than the Bombay High Court, in this case the City Civil Court.
Rule 569 of "The Rules of the High Court of Bombay (Original Side), 1957" affords, in our opinion, a complete .answer to the appellants ' conten tion that the Taxing Master who is an officer of the Origi nal Side of the High Court has no jurisdiction tot tax the Attorneys ' bills in regard to work done by them in matters other than those on the Original Side.
Rule 539 occurs in Chapter XXIX of the Original Side Rules under the rubric "The Taxing Office".
The rule reads thus: "569.
The Taxing Master shall tax the bills of costs on every side of the Court (except the Appellate Side) and in the Insolvency Court.
All other bills of costs of Attorneys shall also be taxed by him when he is directed to do ' so by a Judge 's order.
" 355 The rule consists of two parts of which the first part confers jurisdiction on the Taxing Master to tax the bills of costs on every side of the High Court including bills relating to matters in the Insolvency Court but excluding those on the Appellate Side of the High Court.
If the rule were to stop with the first part, it would have been possi ble to say that the Taxing Master has no Jurisdiction to tax the bills in regard to matters outside the High Court.
But the second parts of the rule puts the matter beyond doubt by providing that all other bills of costs of Attorneys shall also be taxed by the Taxing Master it is argued on behalf of the appellants that "other bills of costs ' must be construed to mean "other bills of costs relating to matters on the Original Side of the High Court" and bills relating to non contentious matters.
We see no jurisdiction for cutting down the scope of the second part of the rule by putting a limited meaning on words of width used therein.
"All other bills of costs of Attorneys" to which the second part Of the rule refers must 'mean all bills of costs of Attorneys other than those which are referred to in the first part of the rule.
That we conceive to be the plain meaning of the particular provision.
Rule 573 which was amended by Slip No. 190 also shows that the Taxing Master has jurisdiction to tax the bills of Attorneys in regard to professional services rendered by them in matters outside the High Court.
Amended rule 573(i)(a) provides that subject to the proviso and subject to the discretion of the Chamber Judge to enlarge the time, in "every suit or proceeding in the High Court" an Attorney shall lodge his bill of costs for taxation within five years after the disposal of the suit or the proceeding, an.d if an appeal is filed in the .
High Court, w!thin five years from the disposal of the appeal.
Amended rule 573(ii)(a) pro vides that subject to the proviso and to the Chamber Judge 's discretion, "In the case of matters which are not the sub ject of any proceedings in the High Court, an attorney shall lodge his bill of cost 's for taxation within five years from the completion of the matter.
" This latter rule prescribes the time within which an Attorney must lodge his bill of costs in regard to matters which are not the subject of any proceedings in the High Court.
The necessity for making this provision arose evidently because rule 569 empowers the Taxing Master to tax the Attorneys ' bills of costs in all matters except those on the Appellate Side of the High Court.
The appellants ' contention, if accepted, will render rule 573(ii)(a) otiose because according to that contention, no matter which is not the subject of any proceeding on the Original Side of the High Court or in the Insolvency Court could be taken before the Taxing Master for taxation of the Attorney 's bills.
It was then useless.
to provide that bills in regard to matters which are not the subject of any proceeding in the High Court must be filed within a particu lar period.
Apart from what appears to us to be the only reasonable construction of rule 569, the Bombay High Court, over a long course of years, has consistently taken the view that the Taxing Master has jurisdiction to tax Attorneys ' bills of costs in relation to professional services rendered by them in all matters, contentious or non contentious, and whichev er be the Court in relation to which the services 356 are rendered, except the Appellate Side of the 'High Court ill regard to which an exception has been expressly carved out by the rule '.
In Nowroji Pudumji Sirdar vs Kange & Savani(1) the appellants were represented by the respondent firm .of
Solicitors in litigation in the District Court and the Subordinate Courts of Poona.
The appellants having declined to pay the respondents ' bills on the ground that, they were excessive, respondents obtained an order from the Prothonotary for having the bills taxed by the Taxing Mas ter.
In an appeal from the decision of the Chamber Judge who upheld the Prothonotary 's order, it was contended by the appellants that the Taxing Master had no jurisdiction to .tax the bills of the respondents, firstly because the bills pertained to work which was not connected with the Original Side of the High Court and secondly because the services were rendered to the appellants by a partner of the respondent firm in his capacity as a pleader.
These conten tions were rejected by a Division Bench consisting of Sir Norman Macleod, C.J., and H.C. Coyajee, 1. who could "see no reason" why a Solicitor practising in Bombay and performing professional Services for a client regarding business in the mofussil should not be entitled to get his bills taxed by the Taxing Master on the Original Side of the High Court.
In coming this conclusion, the High Court relied on rule 494 of the Original Side Rules, 1922 which was identical with rule 569 of the Rules of 1957.
The High Court observed in Nowroji 's case that it may, be that Attorney would fall within the provisions of the Bombay Pleaders Act, 17 Of 1920, with regard to any work done in mofussil Courts after the coming into force of that Act, but that it was unnecessary to consider that question because the work for which the respondents, had lodged their bills was done before that Act had come into force, Relying upon this observation, it was submitted by Mr. Parekh that the decision in Nowroji 's case is not good law after the coming into force of the Bombay Pleaders Act.
It is not possible to accept this submission because even after that Act came into force, the Bombay High Court took the same view as was taken in Nowroji 's case and for good reason which we will expiate while dealing with the appellants contention bearing on i the scale of fees according to which the bills can be taxed.
The relevant rule, couched in identical language age, with which the High Court was con cerned from time to time leaves no doubt that the Taxing Master has the jurisdiction to tax all bills of costs of Attorneys, except those in regard to the work done by them on the Appellate Side of the High Court.
In Chitnis & Kanga vs Wamanrao section Mantri(2) the appel lants, a firm of Solicitors, had obtained from the Prothono tary of the High Court an order under rule 534 of the Rules of 1936, directing the Taxing Master to tax their bill of costs relating to (1) a suit filed on the Original Side of the High Court, (2) a petition for probate in the District Court at Satara, (3) an appeal in the High Court on its (1) (2) 48 Born.
L.R.76.
357 Appellate Side and (4) certain miscellaneous work done in the mofussil.
The respondent, to whom the appellants had rendered these professional services, contended before the Taxing Master that the order of the Prothonotary was ultra vires insofar as it related to items (2), (3) and (4).
The Taxing Master rejected that contention whereupon the re spondent took out a Chamber Summons submitting that it was not competent to the Attorneys to take advantage of the procedure that applies to taxation of Solicitors ' costs on the Original Side of the High Court in respect of costs incurred in the mofussil and on the Appellate Side of the High Court.
The respondent further contended by the Chamber Summons that the matter was governed by the Bombay Pleaders Act, 17 of 1920, and therefore the Taxing Master had no jurisdiction to tax the appellants ' bill in regard to items 2, 3 and 4.
The Chamber Judge set aside the ex parte order of the Prothonotary without a speaking order, against which the appellants filed .an appeal which was heard by Sir John Beaumont, C.J., and Kama, J. The Division Bench held that the order of the Prothonotary in regard to item 3 which related to the work done by the appellants on the Appellate Side of the High Court was clearly wrong in view of the provision contained in rule 534 of the Rules of 1936.
As regards the remaining three items, namely the suit on the Original Side, the probate proceedings in the Satara Dis trict Court and the miscellaneous work done in the mofussil, the Court following the decision in Nowroji 's case held that the appellants were entitled to have their bill taxed in regard to these items by the Taxing Master of the Original Side, although it related to work done in the mofussil.
Adverting to the observation made in Nowroji 's case in regard to the effect of the Bombay Pleaders Act of 1920, the learned Judges held that the provisions of that Act had no effect on the question in issue.
The learned Chief Justice referred in his judgment to section 17 of the Act of 1920 which provided that a legal practitioner (which expression includ ed an Attorney) may enter into a special agreement as to the terms of his remuneration and to section 18 which dealt merely with the amount of pleader 's fees which could be recovered against the opposite party.
These provisions, according to the High Court, had nothing to do with the question whether an Attorney 's bill of costs in regard to the work done by him in the mofussil could be taxed by the Taxing Master.
in Nowroji (supra), the learned Judge held that by reason of rule 569, age & Refrigeration Limited,(1) Mody J., sitting singly, took the same view of the Taxing Master 's power to tax the Attorneys ' bills.
In that case the appellants had rendered professional services to the respondents in respect of a petition for winding up which was filed in the High Court of Rajasthan.
Respondents raised the same contenions which are raised by Mr. Parekh before us, namely, that the Prothonotary had no jurisdiction to pass the Order direct ing the Taxing Master to tax the bill and secondly, that the bill of costs could not be taxed on the Original Side scale.
Relying upon the decision in Nowroji (supra), the learned Judge,held that by reason of rule 569, the very rule with which we are concerned in the instant case, an (1) 358 Attorney of the High Court was entitled to have his bill of costs taxed by the Taxing Master in respect of professional work done by him even in a Court other than the Bombay High Court.
The learned Judge also negatived the second conten tion of the respondents before him, but we will turn to that part of the judgment later.
These decisions of the High Court contain a correct exposition of the relevant rule which was numbered as Rule No. 494 in the Rules of 1922, No. 534 in the Rules of 1936 and is now Rule No. 569 in the Rules of 1957.
The Rules of 1909 also contained a similar .rule bearing No. 491.
It is important to mention from the point of view of 'legislative ' history, that prior to the framing of the 1909 rules, the corresponding rule was Rule 544 of the 1907 Rules which.
in material respects, was worded differently.
It said: "Rules 544.
The Taxing Officer shall tax the bills of costs on every side of the Court (Except the Appellate Side) and in the Insolvency Court.
He .shall also tax all such attorney 's bills of costs as he may be directed to tax by a Judge 's order on consent of the parties, or on the application by any party chargeable with the bill.
" Under this rule, the Taxing Officer could tax the bills referred to in the second part of the rule by consent of parties only of if an application was made for taxation of the bill by a person chargeable with the bill.
Further, the second part of Rule 544 did not contain the expression "All other bills of costs" (emphasis supplied) which is to be found in the corresponding rule since the framing of the 1922 Rules.
The significant changes introduced in 1922 are directed at conferring on the Taxing Master the power to tax all bills of Attorneys, including those for work done in any other Court save the appellate side of the High Court.
It is argued on behalf of the appellants that assuming that the Taxing Master has jurisdiction to tax the bills in regard to the work done by the respondents in the City Civil Court, the bills cannot be taxed on the Original Side scale in view of the provisions contained ' in the Legal Practi tioners (Fees) Act, 21 of 1926.
We see no substance in this submission.
The statement of Objects and Reasons of the 1926 Act shows that the Act was passed in order to give effect to the recommendation of the Indian Bar Committee that in any case in which a legal practitioner has acted or agreed to act, he should be liable to be sued for negligence and be entitled to sue for his fees, Prior to the Passing of the Act of 1926, various High Courts in India had held almost consistently that Vakils could be.
sued for negli gence in the discharge of their professional duties and were entitled to sue for their fees but .Barristers could neither be sued for negligence nor could they sue for their fees.
The Indian Bar Committee recommended by paragraph 42 of its report that in practice the distinction relating to suing for negligence and being sued 359 for fees was not of great importance since suits by or against legal practitioners 'in respect .of fees and the conduct of cases were extremely rare; but it was necessary to provide that in any case in which a legal practitioner had 'acted ' or 'agreed to act ', he should be liable to be sued for negligence and be entitled to sue for his fees.
The long title of the Act of 1926 describes it as an Act "to define in certain cases the rights of legal practitioners to sue for their fees and their liabilities to be sued in respect of negligence in the discharge of their professional duties.
" The preamble of the Act is in the same terms.
Section 2(a) of the Act defines a 'legal practitioner ' to mean a legal practitioner as ' defined in section 3 of the according to which a 'legal practi tioner ' means "an Advocate, Vakil or Attorney of any High Court, a Pleader, Mukhtar or Revenue Agent".
Section 3 of the Act of 1926 provides that any legal practitioner who acts or agrees to act for any person may by private agree ment settle with such person the terms of his engagement and the fee to be paid for his professional services.
Section 5 of the Act provides that no legal practitioner who has acted or agreed to act shall, by reason only of being a legal practitioner, be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties.
Section 4 of the Act of 1926 which is the sheet anchor of Mr. Parekh 's argument reads thus: "4.
Right of legal practitioner to sue for fees.
Any such legal practitioner shall be entitled to institute and maintain legal proceedings for the recovery of any fee due to him under the agreement, or, if no such fee has been settled, a fee computed in accordance with the law for the time being in force in regard to the computation of the costs to be awarded to a party in respect of the fee of his legal practitioner." ' In the first place, as explained above, the Act of 1926 was passed for an entirely different purpose with which we are not concerned in the present case.
Secondly, and that is more important, section 4 on which the appellants rely deals, as shown by its marginal note, with a limited ques tion viz., the right of a legal practitioner to sue for his fees.
It may be that since an Attorney is included within the meaning of the expression 'legal practitioner ', he will be governed by the provisions Contained in section 4 of the Act of 1926 if he brings a suit for the recovery of his fees.
But we are not concerned in this case to determine_ the scope and extent of an Attorney 's right to sue for his fees.
It must further be borne in mind that section 4, which iS in two parts, provides in the first place that a legal practitioner 'shall be entitled ' to institute and maintain a legal proceeding for the recovery of any fee due to him under an agreement.
This part of the section confers an additional entitlement on legal practitioners and cannot justifiably be construed as detracting from any other right which they may possess in regard to the taxation and re covery of their fees.
Section 4 provides by its second part that if there is no agreement between the legal 'practition er and his client in regard to the fees payable to him, he shall be entitled to institute and 360 maintain legal proceedings for the recovery of a fee comput ed in the manner provided therein.
This also is in the nature of an entitlement, the right recognised thereby being .the right to bring a suit to recover the fees in the absence of an agreement.
Any legal practitioner who wants to enforce the right which is specially created and con ferred by the Act of 1926 will have to comply with the conditions on which that right is conferred.
When a statute creates a special right, it can only be enforced in the manner and subject to the conditions prescribed by the statute.
Therefore, the fees for the recovery of which legal proceedings are brought under section 4 cannot be any.
larger than the fees computed in accordance with the law for the time being in force in regard to the ' computation of the costs to be awarded to a party in respect of the fee of his legal practitioner.
But, as we have stated earlier, the provisions of the Act of 1926 are ,entirely beside the point.
They have no bearing on the question whether an Attorney can have his bill taxed by the Taxing Master in respect of the work done by him in courts other than the High Court of Bombay and if so, on what scale.
The Bombay High Court in the judgment under appeal thought that there was an apparent conflict between section 4 of the Act of 1926 and the Original Side Rules relating to the taxation of an Attorney 's bill of costs.
We would like to make it clear that bearing in mind the true object and purpose for which the Act of 1926 was passed and the drive of section 4 thereof, there is no conflict, apparent or real, between any of the provisions of the Act of 1926 and the rules of taxation contained in the Original Side Rules of 1957.
In that view, it is unnecessary to resort to the principle of harmonious construction which the High Court alternatively relied upon for holding that the Taxing Master has the jurisdiction to tax the respondents ' bill in the instant case and on the Original Side scale.
Mr. Parekh then relied upon the rules framed by the Bombay High Court under section 224(1)(d) of the Government of India ACt, 1935 which corresponds roughly to article 227(3) of the Constitution and contended that the respondents ' bills must be taxed in accordance with those rules and not accord ing to the scale prescribed by the Original Side Rules.
This contention too is unacceptable.
The rules on which counsel relies were framed by the High Court "for fixing and regulating by taxation or otherwise the fees payable as Costs by any party in respect of the fees of his adversary 's Attorney appearing, acting and pleading upon all proceedings in the Bombay City Civil Court." These rules, according to their very terms, have nothing to do with the taxation of any Attorney 's bill of costs as between himself and his own client.
The rules govern the fees payable by way of costs by any party in the City Civil Court, in respect of the fees of his adversary 's Attorney.
That is to say, if an order of costs is passed in favour of a party to a suit or proceeding in the City Civil Court, he is entitled to recov er from his adversary by way of professional charges in curred by him, the fees computed in accordance with the rules framed under section 224(1)(d) of the Government of India Act and not what he has in fact paid to his 361 Attorney.
Rule 9 on which 'counsel relies particularly, makes this position clear by providing: "9.
Where costs are awarded to a party in any proceeding ' the amount of the Attor ney 's fee to be taxed in the bill of costs is recoverable by such party if represented by an Attorney from the adversary and shall be computed in accordance with the rules above unless such fee has been settled under the provisions of section 3 of the Legal Practi tioner 's (Fees) Act, 1926, for a lesser amount in which case not more than such lesser amount shall be recoverable.
" The combined effect of this rule and section 4 of the Legal practitioners (Fees) Act, 1926 is that if an Attorney who has appeared or acted for his client in the City Civil Court sues his client for fees, he cannot recover in the suit anything more than is permissible under the rules framed by the High Court under section 224(1)(d) of the Government of India Act, 1933.
Neither those rules nor anything.
contained in the Act of 1926 is calculated to affect the Attorney 's right to have his bill taxed by the Taxing Master on the Original Side scale, for work done by the Attorney in the City Civil Court.
The Bombay City Civil Court Act, 69 of 1948, provides by section 18(1) that all suits and proceedings cognizable by the City Civil Court and ,pending in the High Court, in which issues have not been settled or evidence has not been re corded shall be transferred to the City Civil Court.
By section 18(2), costs incurred in the High Court till the date of the transfer of the suit are to be assessed by the City Civil Court in such manner as the State Government may after consultation with the High Court determine by rules.
Mr. Parekh.
drew our attention to rule 8 framed by the Government of Bombay under section 18(2) but we do not see its relevance on the issue under consideration in the instant case.
That rule shows that even as regards the fees of Attorneys, the Registrar of the City Civil Court is given the power to tax and allow all such costs and out of pocket expenses as shall have been properly incurred by an Attorney up to the date of the transfer of the suit.
The rule further provides that after the date of the transfer such fees shall be taxed and allowed as in the opinion of the Registrar are commensurate with the work done by the Advocate having regard to the scale of fees sanctioned for the Advocate in the City Civil Court by the High Court.
Rule 2, being a rule framed under section 18(2) of the Act of 1948, governs transferred, suits only and it expressly authorises the Registrar to tax the Attorney 's bill for the work done in such suits both before and after the transfer of the suit from the High Court to the City Civil Court.
There is no corresponding rule which can apply,to suits and proceedings instituted in the City Civil Court after the Bombay City Civil Court Act, 1948 came into force and in the absence of such rule, the rules framed under section 18(2) cannot 'support the appellants ' contention.
Mr. Parekh also drew our atten tion to the "Rules of the Bombay City Civil Court, 1948" framed by the Bombay High Court under section 224 of the Govern ment of India Act, 1935 but we see nothing 362 in those rules either which can assist his contention re garding the power of the Taxing Master to tax an Attorney 's bill as between himself and his client.
While we are on this aspect of the matter it would be useful to refer to the Supreme Court Rules, 1966 and the Bombay High Court Appellate Side Rules, 1960.
The Supreme Court ' Rules contain elaborate provisions in Order XLI and XLII thereof regarding costs of proceedings and taxation of costs.
Rule 13 of Order XLII provides that except as other wise provided in the rules or by any law for the time being in force, the fees set out in the Second and Fourth Sched ules to the Rules may be allowed to Advocates and officers of the Court respectively.
Rules 23 to 29 of Order XLII deal specifically with Advocate and Client taxation.
The Second Schedule contains detailed provisions under which fees are payable to Advocates.
for various types of profes sional services rendered by them.
Similarly, Chapter 14 of the Appellate Side Rules of the Bombay High Court contains various rules for computing the fees which an Advocate is entitled to charge his own client.
Similar provision is to be found in England in the Supreme Court Costs Rules, 1959 (see The Annual Practice 1965, p. 1998/300).
Mr. Natman who appears on behalf ' of the Incorporated Law Society, Bombay, drew our attention to rule 29 of the last mentioned rules under which a Solicitor 's bill can be taxed as between himself and his client.
These provisions are on a par with the rules of taxation of the Original Side of the Bombay High, Court.
The important point to be noted is that the Rules of the City Civil Court do not, except in regard to suits transferred from the High Court, contain any provi sion under which an Attorney can have, his bill taxed as between himself and his client.
Perhaps there is good reason for this because though under section 224(1)(d) of the Government of India Act, 1935 and article 227(3) of the Constitution, the High Court has got the power to settle tables of fees to be allowed to Attorneys practising in Subordinate Courts, that power has not been exercised by the High Court for the reason, probably, that the Rules of Taxation on the Original Side of the High Court adequately and effectively take care of that matter.
The High Court did exercise its powers under section 224(1)(d) in relation to the City Civil Court but did not in the rules framed in the exercise of that power provide for taxation of an Attorney 's bill of costs as between him and his client.
It is not too much to suppose that the High Court did not want to do once over again what it had elaborately done while framing the rules on the Original Side, which were in vogue for a large number of years and were working satisfac torily.
Mr. Parekh sought to derive some sustenance to his argument from a decision of the Calcutta High Court in Messrs Sander sons & Morgans vs Mohanlal Lalluchand Shah(1) but we find that the question which arose for decision therein was entirely different.
The appellants therein, a firm of Solicitors, submitted to the respondents a bill of costs for the work done by them for the respondents on the (1) A.I.R. 363 Original Side of the Calcutta High Court.
The respondents challenged the bill by a Chamber Summons, which the appel lants resisted on the ground that there was a private agree ment between the parties to pay a particular amount by way of fees and therefore the bill was not liable to be taxed under the Original Side Rules.
On a cosideration of the Original Side Rules of the Calcutta High Court, Particularly rules 4 and 74 of Chapter 36, the High Court came to the conclusion that the solicitors were bound to have their bills taxed according to the Original Side scale, agreement or no agreement.
We are concerned in the instant case with a different question under a different set of rules and as pointed out by the High Court, the Calcutta Rules are in material respect different from the Bombay Rules.
We must interpret the Bombay Rules on their own terms and decisions on other statutes cannot afford material assistance unless, of.
course ', .my principle of general application is laid down.
We have already mentioned that i.n Messrs Pereira Fa zalbhoy & Co. Mody J., held that an Attorney was entitled to have his bill taxed on the Original Side scale even in respect of the work done by him outside the High Court.
For the various reasons mentioned above we endorse that view.
Before concluding, we ought to refer to a rather anxious plea made by Mr. Parekh.
which involves ethical considera tions.
Counsel urged that it is unfair that for small work done in the City Civil Court Solicitors should be permitted to charge high fees prescribed under the Original Side Rules.
We find ourselves unable to share this concern.
If anything, Solicitors are subject to the watchful supervision of the High Court wherever they may render professional services.
The object of binding the Attorneys to the scale of fees prescribed in the Original Side Rules is not to confer on them any special benefit which is denied to other legal practitioners.
The object on the contrary is to ensure that Attorneys shall always be subject.
to the juris diction of the High.
Court no matter whether they have acted on the Original Side or in any Court subordinate to the High Court.
The only exception is made by rule 569 in regard to the work done on the Appellate Side of the High Court which, as indicated earlier, prescribes its own scale of fees 'as between an Advocate and his client.
In fact, we are unable to see why a power similar to the power of taxation of a. bill of costs between an Advocate and his.
client which is to be found in the Supreme Court Rules should not be conferred on appropriate officers of Courts subordinate to the High Court.
Such a power may enable the Presiding Judges to control the professional ethics of the Advocates appearing before them more effectively than is possible at present.
In this very case, a. bill of Rs. 6000 odd lodged by the appellants was reduced on taxation to a sum of about Rs. 850/ only.
If there were no machin ery for taxing the bill, the appellants might perhaps have got off with the demand.
We would only like to add that before allowing the costs claimed by an Attorney from his client, the Taxing Master ' must have regard to the fact that the Attorney has appeared in a Subordinate Court and to the scale of fees generally prevalent in that Court.
A judi cious exercise of 364 disecretion postulates elimination of unfair play, particu larly where one party to a transaction is in a position to dominate the will of the other.
The client must receive.the protection of the Court and its officers, whenever neces sary.
For these reasons we confirm the judgment of the High Court and dismiss the appeal.
There will however be no order as to costs.
| The appellants and respondents Nos. 3 to 37 herein, were allottees of houses in Chandigarh constructed by the State Government for low paid industrial workers under the Industrial Housing Scheme subsidised by the Central Govern ment.
The Labour Inspector, Union Territory, Chandigarh gave them notices in terms of the proviso to, rule 4(3) of the Punjab Industrial Housing Rules, 1956, as amended vide Notification dated November 7, 1972, to.
show cause why their allotments should not be cancelled.
The income of each of them exceeded Rs. 350/ per mensem, which disenti tled them to retain their allotments.
The appellants and the said respondents filed a joint petition in the High Court for a writ to quash the amendment to rule 4, and to restrain the Government from cancelling their allotments and evicting them.
The writ petition was dismissed.
The appel lants contended firstly, that rule 4(3) was ultra vires the Punjab Industrial Housing Act, 1956 as it took out industri al workers with income exceeding Rs. 350/ p.m. from the scope of section 2(e) of the Act which defines industrial workers; and secondly, that the authority competent to make rules u/s 24 of the Act cannot frame rules having retrospec tive effect, and as the amended rule 4(3) operates retro spectively it is invalid Dismissing the appeal by special leave, the Court, HELD: (1) The allotment of accommodation to an industrial worker is not unconditional but is subject to conditions which can be changed unilaterally by the Government from time to time by altering the rules in exercise of the powers conferred on it under section 24 of the Act.
Section 24 specifically empowers the State Government to make rules to provide inter alia for the manner of allotment of accom modation and conditions relating to its occupation.
The impugned amendment which squarely falls within the purview of the aforesaid provisions of section 24, was validly made, and was not ultra vires.
[331 G H, 331 (a) C] (2) Section 7 of the Act embodies a deeming provision and gives a mandate to treat a person as an unauthorised occupant not only if he ceases to be an industrial worker under the Act, but also if being an allottee, he ceases to fulfil any of the prescribed conditions then in force, including the one relating to the limit of his income, and thereby becomes amenable to action under section 9(2) of the Act.
[331(a) A B] (3) The proviso to rule 4(3) clearly shows that the allotment of an industrial worker whose income exceeds Rs. 350/ per mensem is to stand cancelled not from the date when his income started exceeding Rs. 350/ per mensem but on the expiry of one month 's notice in writing of the can cellation.
The rule is not intended to operate retrospec tively on industrial workers who had been allotted and were in occupation of industrial houses immediately before, 328 the amendment of the Punjab Industrial Housing (Chandigarh First Amendment) Rules, 1972.
[331(a) E F] The Court observed The scheme being meant for the benefit of the low paid industrial workers and the number of the houses constructed thereunder being very limited, the Government could legiti mately evolve the method which it did, to disentitle indus trial workers whose monthly income was relatively large, to retain the houses.
[331 (a) C D]
|
vil Appeal No. 3 169 of 1981.
From the Judgment and Order dated 7.5.1981 of the Alla habad High Court in Second Appeal No. 1018 of 1974.
Jagan Mohan Rao and R. Ramachandran (N.P.) for the Appellant.
Subodh Markandeya, Mrs. Chitra Markandeya, W.A. Nomani and G.S. Giri for the Respondent.
779 The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
This is a case where an order of dismissal passed in a departmental enquiry was challenged in civil court and ultimately has found its way to this Court after a long litigation for over 16 years.
The re spondent was a bus conductor in U.P. State Road Transport Corporation (Corporation ' for short).
A trap was laid against him and a disciplinary enquiry was initiated and dismissal order was passed on 23rd March, 1965.
He filed a civil suit questioning the same.
One of the main plea taken by the respondent was that certain important documents were not made available to him during the enquiry and this caused serious prejudice to him.
The trial court dismissed the suit and an appeal preferred by him was also dismissed by the appellate court.
Relentless as he was, he carried the matter to the High Court by way of second appeal and his plea was accepted by the High Court and the second appeal was al lowed.
Aggrieved by the said judgment, the Corporation has approached this Court.
On behalf of the Corporation it is contended that the High Court has grossly erred in interfering in a second appeal with the concurrent findings and that the plea of the respondent that relevant documents were not supplied to him during the enquiry has no substance.
One of the main issues framed before the trial court was whether all the way bills, carbon copies of the tickets issued on the said dates and carbon copy of checking report were not shown to the delinquent employee by the investigat ing officer and if so what would be its effect? The charge against the respondent was that he erased the waybills and resold some already sold tickets.
During the enquiry the delinquent employee was permitted to inspect the documents but he intended to inspect the carbon copies and made a request by way of a letter.
However, the carbon copies of the way bills dated 7th, 8th and 10th January, 1963 which are the relevant dates and carbon copies of the checking report were not shown to him.
The plea of the delinquent employee has been that from the carbon copies he would have shown that he could not have carried on such erasure or made false entries and non supply of them had caused great preju dice.
As already mentioned, the trial court as well as the first appellate court did not accept this plea and held that no prejudice was caused inasmuch as he was shown the origi nals and also on the ground that he did not later insisted on those carbon copies being shown to him.
The High Court, however, in an elaborate judgment referred to the various documents 780 and it ultimately reached the conclusion that the important documents have been purposely withheld which resulted in prejudice to the employee.
In this appeal, the learned counsel for the Corporation contended that where failure to produce the carbon copies of some of the documents did not cause any prejudice and that at any rate it is a question of fact, the High Court erred in interfering in the second appeal.
To satisfy ourselves we wanted to peruse the judg ments of the trial court as well as of the first appellate court but the Corporation has not placed a copy of the appellate court judgment before us.
We have perused the trial court judgment and we find at more than one place that the learned District Munsif has observed that the employee could have insisted on production of these documents.
The High Court no doubt has considered this aspect in detail and in doing so has referred to the contents of the various documents.
From this alone it cannot be said that the High Court has not kept in view the scope of second appeal.
Since the employee has been throughout pleading that he did not make the erasures or any other false entry, it naturally became necessary to see whether they were also found in carbon copies.
From this point of view the High Court con sidered the various figures and entries in the originals in which such erasures and entries are alleged to have been made by the employee and eventually observed that the entire enquiry was based on some of these documents and if a carbon copy of the way bills had been shown, the authority may well have been convinced that the charge levelled against him was not correct, and that, therefore the non supply of these documents has caused prejudice.
Having examined the findings arrived at by the High Court, we are unable to say that the High Court has committed any error which warrants interfer ence under Article 136 of the Constitution.
The High Court decreed the suit for pendente lite and future pay and allowances and this was passed on 7th May, 1981.
It can therefore be seen that for the last 25 years this litigation went on i.e. from the date of dismissal till today.
Admittedly the respondent has already reached the age of superannuation some years ago.
During these years the respondent must have sought some employment or the other and the learned counsel also could not seriously dispute the same.
Under these circumstances the question is whether again the parties should be driven to go through the indefi nite execution proceedings.
On the question of granting lump sum amount towards the backwages and allowances till the date of his retirement we have also heard both sides.
Under somewhat similar circumstances this Court in Sohan Singh vs Union of India and Another, granted lump 781 sum amount instead of driving the parties to go to the executing court for further relief.
That was a case where the service of an airman in the Air Force was not extended for a period of six years as per the regulation and the matter ultimately came up before this Court.
Taking into consideration the facts and circumstances this Court held that the employee should be compensated by payment of a lump sum amount in lieu of the benefits to which he would have been otherwise entitled if he had continued in service for the extended period of six years.
Without going into the merits of the actual claim this Court awarded a sum of Rs.35,000 by way of compensation.
In the instant case also we are of the view that ends of justice require that such a relief should be granted.
Taking into consideration all these aspects including that the respondent would have been entitled for some retirement benefit, we award Rs.35,000 and direct the U.P. State Road Transport Corporation, the appellant herein, to pay this amount to the respondent within two months from today.
Since the amount would be received in lump sum by the respondent, it may attract the levy of income tax.
But since the amount represents the salary and allowances over the last so many years the respondent may make an application under Section 89 of the Income Tax Act for spreading over this lump sum amount.
We may also point out that in similar circumstances, this Court, in Sundaram Motors Pvt. Ltd. vs Ameerjan and Another, where the compensation by way of lump sum amount was awarded, observed that the same should be spread over and gave a direction to the concerned Income Tax Officer to give immediate relief under Section 89 with out further enquiry.
Accordingly We direct the Corporation to pay the lump sum amount of Rs.35,000 without deducting income tax.
Since the respondent is entitled for relief under Section 89 of the Income Tax Act, he shall make an application to the concerned Income Tax Officer who shall give the necessary relief without any further enquiry.
The appeal is disposed of accordingly.
In the circumstances of the case there will be no order as to costs.
N.P.V. Appeal disposed of.
| Section 14(1) of the provides that where a duty of customs is chargeable on any goods by refer ence to their value, the value of such goods shall be deemed to be the price at which such or like goods are ordinarily sold or offered for sale.
for delivery at the time and place of importation.
in the course of international trade.
The appellant company, a small scale manufacturer of plain paper copiers.
had submitted.
alongwith their applica tion for approval of the phased manufacturing programme, the quotations received by them from their foreign collaborators based in Hongkong in respect of the various components and obtained a licenee in this regard for Rs.4,94,500.
Subse quently, they imported three consignments of components and consumables in SKD/CKD form from suppliers at Hongkong and another consignment from Singapore.
The total value declared under the four bills of entry was Rs.99,612.
The Collector of Customs found that the invoices submit ted by the company were undervalued and determined the price of goods at Rs.7,15,485 with reference to the quotations, for the purposes of section 14(1) of the Act.
He thus held that there was a misdeclaration of value to the tune of Rs.6,15,873, that the duty payable thereon would be Rs.10,96,228.20 and that the entire goods were liable to confiscation under section 111(m) of the Act.
He also held that the goods imported were fully finished copiers in SKD/CKI) form and as such there was a misdeclaration that the import ed goods were only parts of the copiers, that description of most of the items in the invoices had been deliberately manipulated to suit the description in the licence, that fully assembled copiers were not permissible to be imported and this was a clear violation of the Act and the terms of the licence.
In the alternative he held that even if all the parts contained in SKD/CKD packs were 29 viewed individually, none of the items was covered by the licence.
He further held that the value of the parts import ed for the purposes of section 14(1) of the Act would be Rs.5,63,332, whereas the importers were permitted to import goods worth Rs.4,94,500, that there was thus an excess of Rs.68,832 and as such the goods were liable to confiscation under section 111(d) of the Act.
Consequently, he directed con fiscation of the entire goods with an option to the company to pay Rs.3 lakhs in lieu thereof and also Rs.2 lakhs in personal penalties.
The Customs, Excise and Gold (Control) Appellate Tribunal dismissed their appeals.
In these appeals under section 130(e) of the Act, it was contended for the appellants that the quotations had indi cated prices at Hongkong and not the place of importation, that at the time of submitting the application for grant of licence the prices were quoted for fixing the upper limit of the value of the licence, that when the actual purchase transactions were entered into the company negotiated for the price and having regard to the quantum of purchase and the prospects of future sales the company was given 25 per cent discount by the suppliers, and that in the absence of any other material on record the invoice price alone could form the basis of valuation of the imported goods.
For the respondents, it was contended that the prices quoted by the collaborators were based on the prices given by the manufac turers.
and there was no question of supplying the compo nents on a lesser price than given by the manufacturers themselves, that the goods imported were not components of plain paper copiers as declared, that the cartons in fact comprised of all the parts required for full and complete assembly of 14 copiers, that the company in importing them in the guise of separate components and accessories had not only violated the terms and conditions of the licence but also committed a complete fraud, that in the circumstances the adjudicating authority was fully justified in placing reliance on the prices mentioned in the quotations.
Dismissing the appeals under section 130(e) of the Act, the Court, HELD: 1.1 According to section 14(1) of the for purposes of assessment the value of the imported goods is to be deemed to be the price at which such or like goods are ordinarily sold, or offered for sale, for delivery at the time and place of importation, in the course of interna tional trade, where the seller and the buyer have no inter est in the business of each other and the price is the sole consideration for the sale or offer for sale.
[36G H] 1.2 In the instant case the appellant company itself had produced 30 a copy of the quotations received by them from their collab orators at Hongkong in respect of the copiers and other items imported, alongwith their application for approval of their phased manufacturing programme.
They, therefore.
could not dispute the correctness of the prices mentioned in the said quotations.
Not only that, they have also failed to produce any other material on record to show that the value mentioned in the invoices was the correct market value of the goods imported at the relevant time.
The adjudicating authority in these circumstances was perfectly justified in taking the prices mentioned in the quotations as a basis for determining the correct value of the imported goods.
[37A C] 2.1 The goods covered by the three bills of entry dated 3rd February, 1987 had been shipped from Hongkong on the same day i.e. on 21st January, 1987.
The entire goods had arrived on the same day and by the same flight on 30th January, 1987.
These goods had been supplied by the same supplier.
They comprised of ten numbers copiers in SKD/CKD condition, accessories, spares, consumables and excess items.
The goods covered by the 4th bill of entry were four numbers copiers in SKD/CKD condition and consumables.
If assembled together these would constitute full and complete copiers.
The licenee produced was valid for certain compo nents and was not valid for fully assembled copiers.
The appellant company was thus doing indirectly what they were not permitted to do directly under the licence.
[37H; 38A B] Girdbari Lal Bansi Dhar vs Union of India, ; referred to.
Union of India vs Tarachand Gupta & Bros., ; distinguished.
2.2 The intention and purpose of the import policy was to give incentive and encouragement to the new entrepreneurs establishing small scale industries and in the first phase to import 62% of the components of the copiers and the balance of 38% was to be manufactured by them indigenously.
This percentage of 62% was to be reduced in the subsequent years.
The import policy was not meant for such entrepre neurs who instead of importing 62% of the components, im ported 100% of the components of a fully finished and com plete goods manufactured by a foreign country.
Fully fin ished plain paper copiers were the end product of the im porters and hence could not be imported by them.
The device a, looted by the company in the instant case was thus a complete fraud on the import policy itself.
[37D F] 31 2.3 The order confiscating the goods and imposing fine was, therefore, rightly made.
|
rit Petition No. 1220 of 1979.
(Under Article 32 of the Constitution) P. Govindan Nair and N. Sudhakaran for the Petitioner. M. M. Khader and V. J. Francis for the Respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
The petitioner, an aspirant for admission to the M.B.B.S. course in one or other of the medical college in Kerala, has failed to qualify for selection from the Kerala university pool, not having secured high enough marks, and has failed to fall within the Calicut University pool, not having been a student of that University.
What is urged, as a claim for inclusion, is that had she been treated as a Calicut University student her marks would have been sufficient to gain admission and since she belongs to the Malabar region, which 830 is broadly served by the Calicut University, she should be given the benefit of Calicut University students and consequential admission a mixture of district wise backwardness and university wise preference to reach the desired advantage.
We cannot agree.
Under the existing scheme, the classification for purpose of quota is university wise, not territory wise.
Belonging to backward Calicut District is not the same as being an alumnus of the Calicut University.
Maybe, the State could have classified candidates university wise, backward region wise or otherwise, separately or in any constitutionally permissible combination.
We are not here concerned with the prospects of the petitioner under any different admission scheme or reservation project.
Mystic maybes are beyond judicial conjecture.
Once we hold that the university wise allocation of seats is valid the misfortune of the petitioner is damnum sine injuria, if we may use that expression in this context.
Every adversity is not an injury.
Judicial remedy cannot heal every wound or cure every sore since the discipline of the law keeps courts within its bounds.
We do not preclude the State from taking any other pragmatic formula or evolving any selection calculus, constitutionally permissible, so as to promote equality against the backdrop of social justice.
Indeed, we have by our Judgment in Dr. Jagadish Saran & Ors.
vs Union of India & Ors.(1), explained the parameters, the criteria and the correct measures which must be initiated to marry equality to excellence, solemnised constitutionally.
Too long has the state been seeking ad hoc solutions and improvising remedies where comprehensive studies and enduring recipes are the desideratum.
To keep the education situation uncertain across the nation and the fate of students of higher education tense or in suspense with annual challenge in court or agitational exercises in the streets is dangerous procrastination fraught with negative results where a creative undertaking of responsibility to find an enduring answer to a chronic problem is the minimum that the country expects of the concerned State instrumentality.
We dismiss this petition subject to the observations we have made above, leaving it to the Kerala State and its Universities not to contribute to the litigative nursery of medical candidates but to face the task of shaping a firm policy governed by constitutional guidelines, not other pressures.
S.R. Petition dismissed.
| Dismissing the Writ Petition, the Court ^ HELD: The University wise allocation of seats is valid.
Under the existing scheme, the classification for purposes of quota is university wise, not territory wise.
Belonging to backward Calicut District is not the same as being an alumnus of the Calicut University.
May be, the State could have classified candidates University wise, backward region wise or otherwise, separately or in any constitutionally permissible combination.
Mystic maybes are beyond judicial conjecture.
The misfortune of the petitioner is damnum sine injuria.
Every adversity is not an injury.
Judicial remedy cannot heal every wound or cure every sore since the discipline of the law keeps courts within its bounds.
[830 A D] Dr. Jagdish Saran & Ors.
vs Union of India & Ors.
; relied on Observation: [Too long has the State been seeking ad hoc solutions and improvising remedies where comprehensive studies and enduring recipes are the desideratum.
To keep the education situation uncertain across the national and the fate of students of higher education tense or in suspense with annual challenges in court or agitational exercises in the streets is dangerous procrastination fraught with negative results where a creative undertaking of responsibility to find an enduring answer to a chronic problem is the minimum that the country expects of the concerned State instrumentality.] [830 E G]
|
riminal Ap.
peal No. 82 of 1952.
Appeal under article 132 (1) of the Constitution of India from the Judgment and Order dated June 10, 1952, of the High Court of Judicature for the State of Punjab at Simla (Bbandari and Khosla JJ.) in Criminal Writ No. 144 of 1951.
M. C. Setalvad (Attorney General for India) and C. K. Daphtary (Solicitor Genera I for India) (B. Gana pathy, with them) for the appellant.
J. B. Dadachanji (amicus curice) for respondent No. 1. 1952.
November 10.
The Judgment of the Court was delivered by DAS J.
This appeal arises out of a habeas corpus petition Bled by one Ajaib Singh in the High Court of Punjab for the production and release of one Musammat Sardaran alias Mukhtiar Kaur, a girl of about 12 years of age.
256 The material facts leading up to the filing of that petition may be shortly stated as follows.
On the report made by one Major Babu Singh, Officer Commanding No. 2 Field Company, section M. Faridkot, in his letter dated February 17, 1951, that the petitioner Ajaib Singh had three abducted persons in his possession, the recovery police of Ferozepore, on June 22, 1951, raided his house in village Shersingwalla and took the girl Musammat Sardaran into custody and delivered her to the custody of the Officer in charge of the Muslim Transit Camp at Ferozepore from whence she was later transferred to and lodged in the Recovered Muslim Women 's Camp in Jullundur City.
A Sub Inspector of Police named Nibar Dutt Sharma was deputed by the Superintendent of Police, Recovery, Jullundur to make certain enquiries as to the facts of the case.
The Sub Inspector as a result of his enquiry made a report on October 5, 1951 to the effect, inter, that the girl had been abducted by the petitioner during the riots of 1947.
On November 5, 1951, the petitioner filed the habeas corpus petition and obtained an interim order that the girl should not be removed from Jullundur until the disposal of the petition.
The case of the girl was then enquired into by two Deputy Superintendents of Police, one from India and one from Pakistan who, after taking into consideration the report of the Sub Inspector and the statements made before them by the girl, her mother who appeared before them while the enquiry was in progress, and Babu alias Ghulam Rasul the brother of Wazir deceased who was said to be the father of the girl and other materials, came to the conclusion, inter alia, that the girl was a Muslim abducted during the riots of 1947 and was, therefore, an abducted person as defined in section 2(a) (1) of the Abducted Persons (Recovery and Restoration) Act LXV of 1949.
By their report made on November 17, 1951, they recommended that she should be sent to Pakistan for restoration to her next of kin but in view of the interim order of the High Court appended a note to the effect that she 257 should not be sent to Pakistan till the final decision of the High Court.
The matter then came before a Tribunal said to have been constituted under section 6 of the Act.
That Tribunal consisted of two Superintendents of Police, one from India and the other from Pakistan.
The Tribunal on the same day, i.e., November 17, 1951, gave its decision agreeing with the findings and recommendation of the two Deputy Superintendents of Police and directed that the girl should be sent to Pakistan and restored to her next of kin there.
The habeas corpus petition came up for hearing before Bhandari and Khosla JJ.
on November 26, 1951, but in view of the several questions of farreaching importance raised in this and other similar applications, the learned Judges referred the following questions to a Full Bench : 1.
Is Central Act No. LXV of 1949 ultra vires the Constitution because its provisions with regard to the detention in refugee camps of persons living in India violate the rights conferred upon Indian citizens under article 19 of the Constitution ? 2.
Is this Act ultra vires the Constitution because in terms it violates the provisions of article 22 of the Constitution ? 3.
Is the Tribunal constituted under section 6 of the Act a Tribunal subject to the general supervision of the High Court by virtue of article 227 of the Constitution ? At the same time the learned Judges made it clear that the Full Bench would not be obliged to confine itself within the narrow limits of the phraseology of the said questions.
On the next day the learned Judges made an order that the girl be released on bail on furnishing security to the satisfaction of the Registrar in a sum of Rs. 5,000 with one surety.
It is not clear from the record whether the security was actually furnished.
The matter eventually came up before a Full Bench consisting of the same two learned Judges 258 and Harnam Singh J.
In course of arguments before the Full Bench the following further questions were added: 4.Does this Act conflict with the provision of article 14 on the ground that the State has denied to abducted persons equality before the law or the equal protection of the laws within the territory of India? 5.Does this Act conflict with the provisions of article 15 on the ground that the State has discriminated against abducted persons who happen to be citizens of India on the ground of religion alone ? 6.
Does this Act conflict with article 21 on the ground that abducted persons are deprived of their personal liberty in a manner which is contrary to principles of natural justice ? " There was also a contention that the Tribunal which decided this case was not properly constituted in that its members were not appointed or nominated by the Central Government and, therefore, the order passed by the Tribunal was without jurisdiction.
By their judgments delivered on June 10, 1952, Khosla and Harnam Singh JJ.
answered question 1 in the negative but Bhandari J. held that the Act was inconsistent with the provisions of article 19(1) (g) of the Constitution.
The learned Judges were unanimous in the view that the Act was inconsistent with the provisions of article 2.2 and was void to the extent of such inconsistency.
Question 3 was not fully argued but Bhandari and Khosla JJ.
expressed the view that the Tribunal was subject to the general supervision of the High Court.
The Full Bench unanimously answered questions 4, 5 and 6 in the negative.
Bhandari and Khosla JJ.
further held that the Tribunal was not properly constituted for reasons mentioned above, but in view of his finding that section 4(1) of the Act was in conflict with article 22(2) Harnam Singh J. did not consider it necessary to express any opinion on the validity of the constitution of the Tribunal.
259 The Full Bench with their aforesaid findings remitted the case back to the Division Bench which had referred the questions of law to the larger Beach.
The case was accordingly placed before the Division Bench which thereafter ordered that Musammat Sardaran alias Mukhtiar Kaur be set at liberty.
The girl has since been released.
The State of Punjab has now come up on appeal before us.
As the petitioner respondent Ajaib Singh represented to us that he could not afford to brief an advocate to argue his case, we requested Sri J. B. Dadachanji to take up the case as ambicus curiae which be readily agreed to do.
He has put forward the petitioners case with commendable ability and we place on record our appreciation of the valuable assistance rendered by him to the Court.
In his opening address the learned Solicitor General frankly admitted that he could not contend that the Tribunal was properly constituted under section 6 of the Act and conceded that in the premises the order of the ' High Court directing the girl to be released could not be questioned.
He, however, pressed us to pronounce upon the constitutional questions raised in this case and decided by the High Court so that the Union Government would be in a position to decide whether it would, with or without modification, extend the life of the Act which is due to expire at the end of the current month.
We accordingly heard arguments on the constitutional questions on the clear understanding that whatever view we might express oh those questions, so far as this particular case is concerned, the order of the High Court releasing the girl must stand.
After hearing arguments we intimated, in view of the urgency of the matter due to the impending expiry of the Act, that our decision was that the Act did not offend against the provisions of the Constitution and that we would give our reasons later on.
We now proceed to set forth our reasons for the decision already announced.
34 260 In order to appreciate the rival contentions canvassed before us it is necessary to bear in mind the circumstances which led to the promulgation of an Ordinance which was eventually replaced by Act LXV of 1949 which is impugned before us as unconstitutional.
It is now a matter of history that serious riots of virulent intensity broke out in India and Pakistan in the wake of the partition of August, 1947, resulting in a colossal mass exodus of Muslims from India to Pakistan and of Hindus and Sikhs from Pakistan to India.
There were heart rending tales of abduction of women and children on both sides of the border which the governments of the two Dominions could not possibly ignore or overlook.
As it was not possible to deal with and control the situation by the ordinary laws the two governments had to devise ways and means to check the evil.
Accordingly there was a conference of the representatives of the two Dominions at Lahore in December, 1947, and Special Recovery Police Escorts and Social Workers began functioning jointly in both the countries.
Eventually on November 11, 1948, an Inter Dominion Agreement between India and Pakistan was arrived at for the recovery of abducted persons on both sides of the border.
To implement that agreement was promulgated on January 31, 1949, an Ordinance called the Recovery of Abducted Persons Ordinance,. 1949.
This Ordinance was replaced by Act LXV of 1949 which came into force on December 28, 1949.
The Act was to remain in force up to October 31, 1951, but it was eventually extended by a year.
That the Act is a piece of beneficial legislation and has served a useful purpose cannot be denied, for up to February 29, 1952, 7,981 abducted persons were recovered in Pakistan and 16,168 in India this circumstance, however, can have no bearing on the constitutionality of the Act which will have to be judged on purely legal considerations.
The Act is a short one consisting of eleven sections.
It will be observed that the purpose of the Act is to implement the agreement between the two countries 261 as recited in the first preamble.
The second preamble will show that the respective governments of the States of Punjab, Uttar Pradesh, Patiala and East Punjab States Union, Rajasthan and Delhi gave their consent to the Act being passed by the Constituent Assembly a circumstance indicative of the fact that those governments also felt the necessity for this kind of legislation.
By section 1 (2) the Act extends to the several States mentioned above and is to re main in force up to October 31, 1952.
The expression "abducted person" is defined by section 2(1) (a) as meaning " a male child under the age of sixteen years or a female of whatever age who is, or immediately before the 1st day of March, 1947, was a Muslim and who, on or after that day and before the 1st day of January, 1949, has become separated from his or her family, and in the latter case includes a child born to any such female after the said date.
" Section 4 of the Act, which is important, provides that if any police officer, not below the rank of an Assistant Sub Inspector or any other police officer specially authorised by the State government in that behalf, has reason to believe that an abducted person resides or is to be found in any place, he may, after recording the reasons for his belief, without warrant, enter and take into custody any person found therein who, in his opinion, is an abducted person, and deliver or cause such persons to be delivered to the custody of the officer in charge of the nearest camp with the least possible delay.
Section 6 enacts that if any question arises whether a person detained in a camp is or is not an abducted person, or whether such person should be restored to his or her relatives or handed over to any other person or conveyed out of India or allowed to leave the camp, it shall be referred to, and decided by , 'a Tribunal constituted for the purpose by the Central Government.
The section makes the decision of the Tribunal final, subject, however, to the power of the Central Government to review or revise any such decision.
Section 7 provides for the implementation of the decision of the 262 Tribunal by declaring that any officer or authority to whom the custody of any abducted person 'has been delivered shall be entitled to receive and hold the person in custody and either restore such person to his or her relatives or convey such persons out of India.
Section 8 makes the detention of any abducted person in a camp in accordance with the provisions of the Act lawful and saves it from being called in question in any court.
Section 9 gives the usual statutory immunity from any suit or proceeding for anything done under the Act in good faith.
Section ' 10 empowers the Central Government to make rules to carry out the purposes of the Act.
The main contest before us has been on question 2 which was answered unanimously by the Full Bench against the State, namely, whether the Act violates the provisions of article 22.
If the recovery of a person as an abducted person and the delivery of such person to the nearest camp can be said to be arrest and detention within the meaning of article 22(1) and (2) then it is quite clear that the pro visions of sections 4 and 7 and article 22(1) and (2) cannot stand together at the same time, for, to use the language of Bhandari J., " it is impossible to obey the directions contained in sections 4 and 7 of the Act of 1949 without disobeying the directions contained in clauses (1) and (2) of article 22." The Constitution commands that every person arrested and detained in custody shall be produced before the nearest Magistrate within 24 hours excluding the time requisite for the journey from the place of arrest to the Court of the Magistrate but section 4 of the Act requires the police officer who takes the abducted person into custody to deliver such person to the custody of the officer in charge of the nearest camp for the reception and detention of abducted persons.
These provisions are certainly conflicting and inconsistent.
The absence from the Act of the salutary provisions to be found in article 22(1) and (2) as to the right of the arrested person to be informed of the grounds of such arrest and to consult and to be 263 defended by a legal practitioner of his choice is also significant.
The learned Solicitor General has not contended before us, as he did before the High Court, that the overriding provisions of article 22(1) and (2) should be read into the Act, for t e o vious reason that whatever may be the effect of the absence from the Act of provisions similar to those of article 22(1), the provisions of article 22(2) which is wholly inconsistent with section 4 cannot possibly, on account of such inconsistency, be read into the Act.
The sole point for our consideration then is whether the taking into custody of an abducted person by a police officer under section 4 of the Act and the delivery of such person by him into the custody of the officerin charge of the nearest camp can be regarded as arrest and detention within the meaning of article 22(1) and (2).
If they are not, then there can be no complaint that the Act infringes the fundamental right guaranteed by article 22(1) and (2).
Sri Dadachanji contends that the Constitution and particularly Part III the ereof should be construed liber ally so that the fundamental rights conferred by it may be of the widest amplitude.
He refers us to the various definitions of the word "arrest" given in several wellknown law dictionaries and urges, in the light of such definitions, that any physical restraint imposed upon a person must result in the loss of his personal liberty and must accordingly amount to his arrest.
It is wholly immaterial why or with what purpose such arrest is made.
The mere imposition of physical restraint, irrespective of its reason, is arrest and as such, attracts the application of the constitutional safeguards guaranteed by article 22 (1) and (2).
That the result of placing such a wide definition on the the term "arrest" occurring in article 22 (1) will render many enactments unconstitutional is obvious.
To take one example, the arrest of a defendant before judgment under the provisions of Order XXXVIII, rule 1, of the Code of Civil Procedure or the arrest of a judgment debtor in execution of a decree under section 55 of the Code will, on this 264 hypothesis, be unconstitutional inasmuch as the Code provides for the production of the arrested person, not before a Magistrate but before the civil court which made the order.
Sri Dadachanji contends that such consideration should not weigh with the court in construing the Constitution.
We are in agreement with learned counsel to this extent only that if the language of the article is plain and unambiguous and admits of only one meaning then the duty of the court is to adopt that meaning irrespective of the inconvenience that such a construction may produce.
if, however, two constructions are possible, then the court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well established provisions of existing law nugatory.
We have, therefore, to examine the article in question with care and ascertain the meaning and import of it primarily from its language.
Broadly speaking, arrests may be classified into two categories, namely, arrests under warrants issued by a court and arrests otherwise than under such warrants.
As to the first category of arrest, sections 76 to 86 collected under sub heading B Warrant of Arrest " in Chapter VI of the Code of Criminal Procedure deal with arrests in execution of warrants issued by a court under that Code.
Section 76 prescribes that such a warrant must be in writing signed by the presiding officer, or in the case of a Bench of Magistrates, by any member of such Bench and bear the Beal of the court.
Form No. II of Schedule V to the Code is a form of warrant for the arrest of an accused person.
The warrant quite clearly has to state that the person to be arrested stands charged with a certain offence.
, Form No. VII of that Schedule is used to bring up a witness.
The warrant itself recites that the court issuing it has good and sufficient reason to believe that the witness will not attend as a witness unless compelled to do so.
The point to be noted is that in either case the 265 warrantex facie sets out the reason for the arrest, namely, that the person to be arrested has committed or is suspected to have committed or is likely to commit some offence.
In short, the warrant contains a clear accusation against the person to be arrested.
Section 80 requires that the Police Officer or other person executing a warrant must notify the substance thereof to the person to be arrested, and, if so required, shall show him the warrant.
It is thus abundantly clear that the person to be arrested is informed of the grounds for his arrest before he is actually arrested.
Then comes section 81 which runs thus: " The Police Officer or other person executing a warrant of arrest shall (subject to the provisions of section 76 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person.
" Apart from the Code of Criminal Procedure, there are other statutes which provide for arrest in execution of a warrant of arrest issued by a court.
To take one example, Order XXXVIII, rule 1, of the Code of Civil Procedure authorises the court to issue a warrant for the arrest of a defendant before judgment in certain circumstances.
Form No. 1 in Appendix F sets out the terms of such a warrant.
It clearly recites that it has been proved to the satisfaction of the court that there is probable cause for belief that the defendant is about to do one or other of the things mentioned in rule 1.
The court may under section 55 read with Order XXI, rule 38, issue,a warrant for the arrest of the judgment debtor in execution of the decree.
Form No. 13 sets out the terms of such a warrant.
The warrant recites the decree and, the failure of the judgment debtor to pay the decretal amount to the decree holder and directs the bailiff of the court to arrest the defaulting judgment debtor, unless he pays up the decretal amount with costs and to bring him before the court with all convenient speed.
The point to be noted is that, as in the case of a warrant of arrest issued by a court under the Code of Criminal Procedure, a warrant of arrest 266 issued by a court under the Code of Civil Procedure quite plainly discloses the reason for the arrest in that it sets out an accusation of default, apprehended or actual, and that the person to be arrested is made acquainted with the reasons for his arrest before lie is actually arrested.
The several sections collected under sub heading B Arrest without warrant " in Chapter V of the Code of Criminal Procedure deal with arrests otherwise than under warrants issued by a court under that Code.
Section 54 sets out nine several circumstances in which a police officer may, without an order from a Magistrate and without a warrant, arrest a person.
Sections 55, 57, 151 and 401 (3) confer similar powers on police officers.
Column 3, Schedule II to the Code of Criminal Procedure also specifies; the cases where the police may arrest a person without warrant.
Section 56 empowers an officer in charge of a police station or any police officer making an investigation under Chapter XIV to require any officer subordinate to him to arrest without a warrant any person who may lawfully be arrested without a warrant.
In such a case, the officer deputing a subordinate officer to make the arrest has to deliver to the latter an order in writing specifying the person to be arrested and the offence or other cause for which the arrest is to be made and the subordinate officer is required, before making the arrest, to notify to the person to be arrested the substance of the order and, if so required by such person, to show him the order.
Section 59 authorises even a private person to arrest any person who in his view commits a non bailable and cognisable offence or any proclaimed offender and requires the person making the arrest to make over the arrested person, without unnecessary delay, to a police officer or to take such person in custody to the nearest police station.
A perusal of the sections referred to above will at once make it plain that the reason in each case of arrest without a warrant is that the person, arrested is accused of having committed or reasonably suspected to have committed or of 267 being about to commit or of being likely to commit some offence or misconduct.
It is also to be noted that there is no provision, except in section 56, for acquainting the person to be arrested without warrant with the grounds for his arrest.
Sections 60 and 61 prescribe the procedure to be followed after a person is arrested without warrant.
They run thus: " 60.
A police officer making an arrest without warrant shall without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station." "61.No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall, not, in the absence of a special order of a Magistrate under section 167, exceed twenty four hours, exclusive of the, time necessary for the journey from the place of arrest to the Magistrate 's Court.
" Apart from the Code of Criminal Procedure, there are other statutes which authorise the arrest of a person without a warrant issued by any Court.
Reference may, byway of example, be made to sections 173 and 174 of the Sea Customs Act (VIII of 1878) and section 64 of the Forest Act (XVI of 1927).
In both cases, the reason for the arrest is that the arrested person is reasonably suspected to have been guilty of an offence under the Act and there is provision in both cases for the immediate production of the arrested person before a Magistrate.
Two things are to be noted, namely, that, as in the cases of arrest without warrant under the Code of Criminal Procedure, an arrest without warrant under these Acts also proceeds upon an accusation that the person arrested is reasonably suspected of having committed an offence and there is no provision for communicating to the person arrested the grounds for his arrest.
35 268 Turning now to article 22(1) and (2), we have to ascertain whether its protection extends to both categories of arrests mentioned above, and, if not, then which one of them comes within its protection.
There can be no manner of doubt that arrests without warrants issued by a court call for greater protection than do arrests under such warrants.
The provision that the arrested person should within 24 hours be produced before the nearest Magistrate is particularly desirable in the case of arrest otherwise than under a warrant issued by the court, for it ensures the immediate application of a judicial mind to the legal authority of the person making the arrest and the regularity of the procedure adopted by him.
In the case of, arrest under a warrant issued by a court, the judicial mind had already been applied to the case when the warrant was issued and, therefore, there is less reason for making such production in that case a matter of a substantive fundamental right.
It is also perfectly plain that the language of article 22(2) has been practically copied from sections 60 and 61 of the Code of Criminal Procedure which admittedly prescribe the procedure to be followed after a person, has been arrested without warrant.
The requirement of 'article 22(1) that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest indicates that the clause really contemplates an arrest without a warrant of court, for, as already noted, a person arrested under a, court 's warrant is made acquainted with the grounds of his arrest before the arrest is actually effected.
There can be no doubt that the right to consult a legal practitioner of his choice is to enable the arrested person to be advised about the legality or sufficiency of the grounds for his arrest.
The right of the arrested person to be defended by a legal practitioner of his choice postulates that there is an accusation against him against which he has to be defended.
The language of article 22(1) and (2) indicates that the fundamental right conferred by it gives protection against such 269 arrests as are effected otherwise than under a warrant issued by a court on the allegation or accusation that the arrested person has, or is suspected to have, committed, or is about or likely to commit an act of a criminal or quasi criminal nature or some activity prejudicial to the public or the State interest.
In other words, there is indication in the language of article 22(1) and (2) that it was designed to give protection against the act of the executive or other non judicial authority.
The Blitz case (Petition No. 75 of 1952), on which Sri Dadachanji relies, proceeds on this very view, for there the arrest was made on a warrant issued, not by a court, but, by the Speaker of & State Legislature and the arrest was made on the distinct accusation of the arrested person being guilty of contempt of the Legislature.
It is not, however, our purpose, nor do we consider it desirable, to attempt a precise and meticulous enunciation of the scope and ambit of this fundamental right or to enumerate exhaustively the cases that come within its protection.
Whatever else may come within the purview of article 22(1) and (2), suffice it to say for the purposes of this case, that we are satisfied that the physical restraint put upon an abducted person in the process of recovering and taking that person into custody without any allegation or accusation of any actual or suspected or apprehended commission by that person of any offence of a criminal or quasi criminal nature or of any act prejudicial to the State or the public interest, and delivery of that person to the custody of the officer in charge of the nearest camp under section 4 of the impugned Act cannot be regarded as arrest and detention within the meaning of article 22(1) and (2).
In our view, the learned Judges of the High Court over simplified the matter while construing the article, possibly because the considerations hereinbefore adverted to were not pointedly brought to their attention.
Our attention has been drawn to sections loo (search for persons wrongfully confined) and 552 (power to compel restoration of abducted females) of 270 the Code of Criminal Procedure, and it has been urged that neither of those sections contemplates an accusation against the victim and yet such victim, after recovery, has to be brought before a Magistrate.
It is to be observed that neither of the two sections treats the victim as an arrested person for the victim is not produced before a Magistrate under sections 60 and 61 'which require the production of a person arrested without warrant, or under section 81 which directs the production of a person arrested under a warrant issued by a, court.
The recovered victim is produced by reason of special provisions of two sections,, namely, sections 100 and 552.
These two sections clearly indicate that the recovery and taking into custody of such a victim are, not regarded as arrest at all within the meaning of the Code of Criminal Procedure and, therefore, cannot also come within the protection of article.
22(1) and (2).
This circumstance also lends support"to the conclusion we have reached, namely, 'that the taking into custody of an abducted person under the impugned Act is not an arrest within the meaning of article 22(1) and (2).
Before the Constitution, came into force it was entirely for the Legislature to consider whether the recovered person should be produced before a Magistrate as is provided by sections 100 and 552 of the Criminal Procedure Code in the case of persons wrongfully confined or abducted.
By this Act, the Legislature provided that the recovered Muslim abducted person should be taken straight to the officer in charge of the camp, and the Court could not question the wisdom of the policy of the Legislature.
After the Constitution, article 22 being out of the way, the position in this behalf remains the same.
Sri Dadachanji also argued that the Act is inconsistent with article 14.
The meaning, scope and ambit of that article need not be explained again, for they have already been explained by this Court on more than one occasion.
[See Chiranjit Lal Chowdhury vs The Union of India (1), The State of Bombay vs F. N. (1) ; 271 Balsara (1), The State of West Bengal vs Anwar Ali Sarkar (2), and Kathi Raning Rawat vs The State of Saurashtra (3)].
There can be no doubt that Muslim abducted persons constitute a well defined class for the purpose of legislation.
The fact that the Act is extended only to the several States mentioned in section 1 (2) does not make any difference, for a classification may well be made on a geographical basis.
Indeed, the consent of the several States to the passing of this Act quite clearly indicates, in the opinion of the governments of those States who are the best judges of the welfare of their people, that the Muslim abducted persons to be found in those States form one class having similar interests to protect. ' Therefore the inclusion of all of them ' in the definition of abducted persons cannot be called discriminatory.
Finally, there is nothing discriminatory in sections 6 and 7.
Section 7 only implements the decision of the Tribunal arrived at under section 6.
There are several alternative things that the Tribunal has been authorised to do.
Each and everyone of the abducted persons is liable to be treated in one way or another as the Tribunal may determine.
It is like all offenders under a particular section being liable to a fine or imprisonment.
There is no discrimination if one is fined and the other is imprisoned, for all offenders alike are open to the risk of being treated in one way or another.
In our view, the High Court quite correctly decided this question against the petitioner.
The learned counsel for the respondent Ajaib Singh contended that the Act was inconsistent with the provisions of article 19(1)(d) and (e) and article 21.
This matter is concluded by the majority decision of this court in Gopalan 's case (4) and 'the High Court quite correctly negatived this contention.
Sri Dadachanji has not sought to support the views of Bhandari J. regarding the Act being inconsistent with article 19 (1)(g).
Nor has learned counsel (1) ; (3) ; (2) ; (4) ; 272 seriously pressed the objection of unconstitutionality based on article 15, which, in our view, was rightly rejected by the High Court.
Although we hold that the High Court erred on the construction they Put upon article 22 and the appellant has succeeded on that point before us, this appeal will, nevertheless, have to be dismissed on the ground that the Tribunal was not properly constituted and its order was without jurisdiction, as conceded by the learned Solicitor General.
We, therefore, dismiss this appeal on that ground.
We make no order as to costs.
| The appellant and the respondent entered into a written partnership with respect to the managing agency business of two mills, the terms of which were, inter alia, that the management shall be carried on in rotation once in four years, the appellant to manage for the first four years and thereafter the respondent to manage for the next four years and in the same way thereafter.
999 It further provided that the partners and their heirs and those getting their rights shall carry on the management in rotation.
Soon after disputes arose between the partners and the appellant gave notice to the respondent terminating the partnership treating it as a partnership at will, and the directors of the mills in their turn terminated the managing agency on the ground that the quarrels between the partners were detrimental to the good management of the mills.
Thereafter the respondent brought a suit against the appellant and the mills for dissolution of the partnership firm and damages alleging that dissolution of the partnership by the appellant by notice was fraudulent and connived at by the mills.
The trial court held that the partnership was at will and the termination of the managing agency was, legal and disallowed damages.
On appeal by the respondent the High Court held that the partnership was not a partnership at will and could not be dissolved by notice by the appellant.
The termination of the managing agency was also held to be illegal.
appeal by the appellant with a certificate of the High Court: Held, that considering the provision that the management would be carried on in rotation between the partners in four yearly periods and that the heirs of the partners would also carry on the business in rotation the intention was obviously to have a partnership of some duration, though the duration was not expressly fixed in the agreement.
The duration of a, partnership may be expressly provided for in the contract but even when there is no express provision, courts have held that the partner.
ship will not be at will if the duration can be implied.
Grawshay vs Manle, Swans 495; ; , followed.
The contract in this case disclosed a partnership the deter mination of which was implied, namely, the termination of the managing agency and, therefore, under section 7 of the Partnership Act it was not a partnership at will and was not legally terminable by the notice given by the appellant.
In view of the strained atmosphere between the partners there was sufficient reason for the mill to terminate the managing agency and the resolution of the board of directors terminating the managing agency agreement confirmed by the general meeting of the shareholders, did terminate the managing agency.
There was neither any fraud nor collusion by the mills with the appellant.
Morarji Gokuldas and Co. vs Sholapur Spinning and Weaving Co. Ltd. and Others, and Commissioners of Inland Revenue vs Sansom, , referred to.
The partnership in the present case must be deemed to have determined on the date of the passing of the resolution by the board of directors terminating the managing agency.
Sections 10 and 13(f) of the Partnership Act have no application to the facts of the case.
|
Appeal No. 177 of 1955.
Appeal from the judgment and decree dated September 28, 1953, of the former Nagpur High Court in First Appeal No. 115 of 1951, arising out of the judgment and decree dated July 25, 1951, of the Court of Additional District Judge, Bhandara, in Civil Suit No. 14 A of 1957.
C. B. Aggarwala and Radheylat Aggarwal, for the appellant.
section P. Sinha and section N. Mukherjee, for the respondent.
December 1.
The Judgment of the Court was delivered by 700 KAPUR, J.
This is an appeal against the judgment and decree of the High Court of Nagpur reversing the decree of the Additional District judge dismissing the plaintiff 's suit.
The appellant before us is the defendant Kishori Lal who claimed to be the adopted son, adopted by the husband of the plaintiff, Mst.
Chaltibai who is the respondent in this appeal.
The suit out of which this appeal arises was brought by Mst.
Chaltibai, the widow of Lakshminarayan, a Marwari Aggarwal of the District of Bhandara against Badrinarayan defendant No. 1 and his son Kishori Lal defendant No. 2 now appellant for a declaration that properties in sch.
B & C belonged to her as heir to her deceased husband Lakshminarayan and for possession of the property in schedule D.
The facts of the litigation relevant for the purpose of this judgment are these: Badrinarayan and Lakshminarayan were two brothers the former who was elder was carrying on business at Raipur and the latter who was younger carried on business in the ancestral village named Tirora where it is stated Badrinarayan also was doing some business.
Lakshminarayans first wife died in 1919 leaving a son and a daughter.
In 1922 Lakshminarayan married the respondent Mst.
Chaltibai.
His son died sometime after this marriage and therefore the only remaining child of Lakshminarayan was the daughter Mst.
Jamnabai who was married to one Chotteylal.
On January 6, 1936, Lakshminarayan died of a heart disease leaving his estate which is given in schs.
B, C and D and is valued at about Rs. 30,000.
Although the plaintiff Chaltibai, now respondent, had alleged that Lakshminarayan died suddenly and did not suffer from any heart disease previous to his death, the appellant pleaded that Lakshminarayan developed heart trouble in 1934.
He also pleaded that because of this heart trouble Lakshminarayan became despaired of begetting a son and therefore adopted in Jaisth (May June) 1935 the appellant Kishorilal then aged 13 years who was the youngest of the five sons of his brother Badrinarayan, the others being Mohanlal, Gowardhan, Nandlal and Narayan.
He further pleaded that after 701 his adoption he resided with Lakshminarayan as his adopted son and when Lakshminarayan died he performed his obsequies as such adopted son, was placed on the gaddi and the turban was tied on his head in accordance with the custom of the caste; that he was on the thirteenth day (tervi) taken by the respondent Chaltibai in her lap from Badrinarayan with the consent and in the presence of the relations of Lakshmi narayan on the thirteenth day of the death of Lakshminarayan ; that he entered into possession of the estate of the deceased Lakshminarayan and was recognised as his adopted son even by the respondent who continued to accept and treat him as such upto 1946; and in 1942 the respondent performed his (the appellant 's marriage).
After he attained majority he managed the estate himself and there was a partition in the family of Badrinarayan on October 30, 1943, in which the appellant, because of his having been given out in adoption in another family, received no share.
The respondent in the plaint denied both the adoption and the treatment or acceptance of the appellant as an adopted son.
She also stated that she was an illiterate purdanashin woman who was not conversant with the management of business and after the death of her husband she reposed full confidence in Badrinarayan who assured her that he would properly look after her affairs, business and property and consequently Badrinarayan took over the management of the estate and the account books and also looked after court work.
At his instance she (the respondent) signed certain papers without understanding them or without knowing their contents and sometimes she even signed blank papers.
The appellant and his father Badrinarayan then attempted to oust her from the business and the estate of her husband which led to disputes between the parties and proceedings under ss.107 & 145 of the Code of Criminal Procedure were started, a receiver was appointed and the Magistrate by an order dated May 19, 1947, directed the parties to have their rights decided by a civil court.
This order was unsuccessfully challenged by the appellant in revision.
In the criminal case the appellant, it is 702 alleged, asserted that he had been adopted by Lakshminarain six months prior to his death, a fact which the respondent Chaltibai denied in her plaint.
On these pleadings the court framed four issues and the two relevant issues for the purpose of this appeal are : (1)Did the deceased Lakshminarayan validly adopt the defendant No. 2 in the bright fortnight of Jyestha (June), 1935 A. D. ? (b) Was the adoption valid according to law ? (2) Had the plaintiff all along recognised the adoption as valid and legal and had she been treating defendant No. 2 as Lakshminarayan 's son all along ? (b) If so, result ? The trial court dismissed the suit.
It held the adoption proved but found against the appellant on the question of estoppel.
The High Court on appeal reversed the finding as to the factum of adoption but upheld the finding on the question of estoppel.
It was of the opinion that the respondent was not estopped on account of any misrepresentation made by her and that there was no such conduct on her part which deprived her of her right of bringing the present suit and that both parties knew that there was no adoption in fact.
The appeal was therefore allowed.
The defendant Kishorilal has brought this appeal to this Court under a certificate of the High Court and the judgment of the High Court is assailed on several grounds: Firstly, it was urged that the evidence produced in support of the adoption proved that the appellant was adopted by Lakshminarayan six months before his death.
Secondly, the doctrine of estoppel was relied upon, estoppel on the ground that the respondent Chaltibai had represented in previous legal proceedings and in various ways by execution of docu ments and by her actions that the appellant was the adopted son of Lakshminarayan.
She had put him in possession as owner of all the estate of Lakshminarayan, and had given up her own claim to heirship to his estate and as a result of this conduct and representations made by the respondent the appellant had 703 altered his possession (i) by being completely transplanted from his real father 's family into another family and (ii) by being deprived of his share of the properties in his natural family.
Thirdly, it was argued that because of her admission that the appellant was the adopted son of Lakshminarayan and his heir the burden was on her to show that he was not the adopted son.
And fourthly, it was submitted that having regard to the long course of conduct of the respondent Chaltibai in treating the appellant as the adopted son of Lakshminarayan the evidence produced should be appraised in such a manner as to hold it sufficient for proving the adoption.
There is no formal deed of adoption, the appellant therefore sought to prove it by the evidence of six witnesses who were.
his real brother Mohanlal, his natural father Badrinarayan and two relations Narsingdas and Shankarlal, a neighbour Chattarpatti who is some kind of a physician and Kishorilal himself appeared in support of his case.
A seventh witness Sobharam was produced to prove an admission by Lakshminarayan that he had adopted the appellant.
The story of the adoption as disclosed by the evidence for the appellant was that as Lakshminarayan had no son of his own he asked his brother Badrinarayan to give his youngest son in adoption to which he agreed and the adoption took place at the house of Lakshminarayan at Tirori in the month of Jyaistha 1935 about six months before the death of Lakshminarayan.
The formalities of adoption, according to this evidence, consisted of placing the appellant as a son not in lap of the adoptive mother but of Lakshminarayan who put a tilak on the appellant 's forehead and tied a turban on his head.
This was followed by distribution of pansupari to the persons assembled who were Narasingdas and Shankarlal who were from outside Tirora, Raman and Jivan Singh who were servants of Lakshminarayan, Chhatarpatti a neighbour and Bhaiyalal who has not been examined and there was also present Mohanlal a real brother of the appellant.
Some other persons were also present by the appellant but they are not witnesses in the case and Badrinarayan and Mohanlal did 704 not mention their presence.
No religious ceremony was performed and there was no priest though witness Narsingdas stated that a priest was present at the adoption ceremony and ganesh puja was performed.
The evidence also shows that no invitations were sent to the brotherhood, friends or relations and besides the persons mentioned above no one else was present and thus no publicity was given to the adoption.
None of the relations of the respondent were invited or were present although she had brothers and sisters and they were married.
Even the respondent Chaltibai was not present at the ceremony of adoption.
It is stated that she was in some inner room.
And after the formalities of adoption Lakshminarayan himself put the adopted son in the lap of the respondent Chaltibai.
The adoption was not followed by any feast nor was any photograph taken and no presents were given to the adopted son.
Lakshminarayan did not consult any priest as is usual for fixing an auspicious day for adoption.
Although the defendants were allowed to amend their written statement they gave no details of the adoption by Lakshminarayan beyond saying that it was in the month of Jyaistha 1935 but what date it was not mentioned.
The parties are Aggarwals and belong to a commercial community who maintain complete and detailed accounts.
Although Badrinarayan who was defendant No. 1 chose to put in accounts of January 20, 1936, in connection with what he expended on the tervi (thirteenth) day ceremony after the death of Lakshminarayan yet he filed no such accounts showing the date when he and his son the appellant came to Tirora from Raipur for the purposes of adoption or when they went back.
No contemporary document of any kind has been produced to show when the adoption took place or what was expended by Badrinarayan nor have the accounts of Lakshminarayan who ac cording to the appellant himself maintained account books been produced to show as to the expenses of whatever little ceremony was observed on the date of the adoption.
The account produced by Badrinarayan shows the amount expended on the occasion of 705 thirteenth day ceremony after the death of Lakshminarayan on betel leaves, milk, betelnuts and also what was paid at the house of Lakshminarayan including the amount paid for the turban for the reading of the garud puran or what was paid to Kesu (which we are told is a pet name of Kishorilal) for touching the feet of the elders.
The significance of this fact has not been explained by the appellant.
I As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave DO occasion for doubting its truth.
Failure to produce accounts, in circumstances such as have been proved in the present case, would be a very suspicious circumstance.
The importance of accounts was emphasised by the Privy Council in Sootrugun vs Sabitra (1) ; in Diwakar Rao vs Chandanlal Rao (2) ; in Kishorilal vs Chunilal (3); in Lal Kunwar vs Charanji Lal (4) and in Padamlal vs Fakira Debya (5).
The oral evidence of witnesses deposing to the factum of adoption is both insufficient and contradictory.
Beyond their being agreed on the question of taking the appellant in adoption by Lakshminarayan the witnesses are not in accord as to the details of the adoption or as to the ceremonies or as to the usual feast following it.
The giving of presents is the only detail on which they are agreed, they all deposed that no presents were given.
As to what happened in regard to the taking of the appellant in her lap by the respondent after the death of Lakshminarayan the witnesses are not in accord.
There is disagreement as to its date how it came about and why.
The adoption during the lifetime of Lakshminarayan is contradicted by a document dated January 24, 1938, a sale deed by the respondent Chaltibai in favour of the (1) (1834) 2 Knapp.
(2) Calcutta 201 (P.C.).
(3) (1908) 36 I.A. 9.
(4) (1909) 37 I.A. 1, 7.
(5)A.I.R. 193, (P.C.) 84.
89 706 Firm Ganeshram Fatteh Chand the family firm of witness Narsingdas.
Therein the adoption of the appellant is stated to have taken place after the death of Lakshminarayan and was by (Chaltibai respondent under the authority of her deceased husband and with the consent of the whole family.
This document was witnessed by the natural father Badrinarayan.
No satisfactory explanation of this wholly different adoption being mentioned in a deed executed only two years after the death of Lakshminarayan has been given by the appellant, except this that whether he was adopted by Lakshminarayan in his lifetime or after his death by the respondent Chaltibai, he would be the adopted son of Lakshminarayan and therefore this discrepant recital in the sale deed was of little consequence.
This argument ignores the case set up by the appellant in his written statement and the utter lack of evidence of the authority of the husband or of the assent of his kinsmen which was neither pleaded nor proved.
Another circumstance which casts a great deal of doubt on the adoption set up by the appellant is that after the adoption the appellant went back to Raipur where his natural father was residing.
Although Badrinarayan stated that after the adoption the appellant lived with his adoptive father, this is negatived by the evidence produced by the appellant himself which is to the effect that he went back to school at Raipur and returned to Tirora on the day Lakshminarayan died.
The High Court also found that he left for Raipur after the obsequies and returned three or four months later.
The school leaving certificate shows that he was a student in the school at Tirora from June 22, 1936 to June 30, 1937, and there he was entered as the son of Badrinarayan.
Taking all these facts into consideration the High Court, in our opinion, has cor rectly held that the factum of adoption by Lakshminarayan has not been established.
It was next argued on behalf of the appellant that even though the evidence produced in support of the adoption might be unsatisfactory and not sufficient to establish the factum of adoption the respondent in this 707 case was estopped from setting up the true facts of the case inasmuch as she represented in the former document and legal proceedings and in various other ways that the appellant was the adopted son of the deceased Lakshminarayan and thereby caused him to change his position by being transferred from the family of Badrinarayan to that of Lakshminarayan.
These documents will be discussed later.
In this case both the parties were aware of the truth of the facts and consequently the doctrine of estoppel was inapplicable.
It cannot be said that the respondent by her own words or conduct wailfully caused the appellant to believe the existence of a certain state of things i.e. adoption by Lakshminarayan and induced him to act on that belief so as to alter his position and therefore she could not be concluded from averring a different state of things as existing at the same time.
See Pickard vs Sear (1) and Square vs Square (2 ).
The Privy Council in Mohori Bibi vs Dhurmdas Ghogh (3 ) held that there can be no estoppel where the truth of the matter is known to both the parties.
Therefore when both the parties are equally conversant with the true facts the doctrine of estoppel is inapplicable.
The documents giving rise to the plea of estoppel were four and the appellant also relied on the acts of the respondent which will be referred to later.
The first document was an application dated March 21, 1936, for a succession certificate which was filed by the respondent as " guardian mother " of the appellant Kishorilal.
The necessity for this application arose because in order to get insurance money on a policy taken out by the deceased Lakshminarayan a succession certificate had to be obtained.
The High Court came to the conclusion that there was no evidence to show that the respondent Chaltibai 's signatures were obtained on the document after it was explained to her, the document was in English and she was not conversant with that language.
Two other drafts were made for the application for this succession certificate which (1) ; ; (2) (3) (1902) 30 I.A. 114.
708 are both on the record.
In these two drafts Badrinarayan is shown as " guardian uncle " of the appellant Kishorilal.
Although Badrinarayan was reluctant to do so he had to admit the existence of these two drafts but added that he had instructed Jivan Singh a servant of Lakshminarayan not to file the application till after he had consulted a Mr. P. section Deo, a pleader and after he had consulted him the application was filed but with Chaltibai as guardian.
This document in para.
3 sets out the names of the relations of the deceased.
They were the widow Chaltibai, the daughter Jamnabai, the brother Badrinarayan and the four sons of Badrinarayan.
In this column the appellant Kishorilal was not shown as a relative of the deceased.
In a later paragraph it was stated that the petitioner i. e. the appellant Kishorilal claimed the certificate as the adopted son of the deceased Lakshminarayan.
On the finding of the High Court that the document was not explained to the respondent Chaltibai it cannot be said that it established any admission, much less estoppel.
This document did not contain any admission which would necessarily show that Kishorilal appellant was adopted by Lakshminarayan during his lifetime.
The next document relied upon is a bahi entry in a Mathura Panda 's book dated July 21, 1944.
The story is that the respondent Chaltibai visited Mathura on her way back from Badrinarayan and the Panda of the family made an entry in his bahi after making enquiries from her showing the appellant Kishorilal as the adopted son.
The entry is signed by her.
This document is contradicted by another entry in the same Panda 's bahi which is stated to have been made at the instance of Mohanlal, the eldest brother of the appellant on March 2, 1947, about 2 1/2 years after the pre vious entry.
In the later entry the appellant Kishorilal was shown as the son of Badrinarayan and not the adopted son of Lakshminarayan.
Whether the document the previous Bahi entry was at the instance of the respondent Chaltibai or not is not material because it does not advance the case of the appellant.
This document also does not show that the appellant 709 was adopted by Lakshminarayan.
Then there is a document adhikar patra dated May 4, 1946, by which a dispute between the appellant and the respondent was referred to the arbitration of 7 persons.
It was signed by the appellant and the respondent and it was therein recited: " Relations between us mother and son have become strained in connection with some matters.
it is very necessary to remove the same".
In another portion of the document also words used are "between us the mother and the son".
This document also was not accepted by the High Court as containing an admission because even at the time of its execution the respondent Chaltibai was denying the adoption of Kishorilal which was proved by the testimony of two of the panches (arbitrators) themselves.
It cannot be said therefore that this document represented correct state of affairs but even if it did it cannot be treated as an admission by the respondent that the appellant was adopted by Lakshminarayan.
Lastly there is the deed of sale dated January 24, 1938, wherein the respondent had recited that the appellant Kishorilal was adopted by her husband ,in accordance with his wishes and consent of the entire family ".
This recital negatives the whole case of the appellant as set up in his written statement that he was adopted by Lakshminarayan during his lifetime.
In his written statement he bad only pleaded his having been placed in the lap of the respondent Chaltibai as confirmatory of his adoption by Lakshminarayan.
The documents mentioned above do not support the plea that the appellant had been led.
to alter his position through a belief in any misrepresentation made by the respondent Chaltibai as to his having been adopted by Lakshminarayan.
And he cannot be allowed to set up a case different to his case in the written statement nor can he be allowed to prove his title as an adopted son on such different case.
See Tayammaul vs Sashachalla Naiker (1), Gopeelal vs Mussamat Chandraolee Buhajee (2 ).
The correct rule of estoppel applicable in the case of adoption is that it (1) (1865) 10 M.I.A. 429.
(2) (1872) SUPP.
I.A. 131.
710 does not confer status.
It shuts out the mouth of certain persons if they try to deny the adoption, but where both parties are equally conversant with the true state of facts this doctrine has no application.
Two further facts which the appellant 's counsel relied upon to support his plea of estoppel were: (1) his being allowed to perform the obsequies of Lakshminarayan and (2) the performance of his marriage by the respondent Chaltibai as his adoptive mother.
If the adoption itself is disproved these two facts will not add to the efficacy of the plea of estoppel which otherwise is inapplicable: Dhanraj vs Sonabai (1).
The appellant relied on Rani Dharam Kunwar vs Balwant Singh (2) which was a case where the adoptive mother, the Rani had herself in a previous proceeding pleaded that she had authority to adopt and the Privy Council were of the opinion that the question could be decided on its own facts without recourse to the doctrine of estoppel, although they did not differ from the view of the courts below as to the applicability of the doctrine of estoppel.
That was not a case of the parties being equally conversant with the true facts and further there was a finding that the person claiming to be the adopted son was as a matter of fact adopted.
In our view there is no substance in the plea of estoppel raised by the appellant.
Whatever the acts of the respondent Chaltibai, what.
ever her admissions and whatever the course of conduct she pursued qua the appellant Kishorilal they could not amount to estoppel as both parties were equally conversant with the true facts.
In none of the four documents which are signed by her, is there any admission that Kishorilal was adopted by her husband during his lifetime.
On the other hand in the sale deed dated January 24, 1938, she recited an adoption by herself which is not the adoption that the appellant relied upon in support of his case.
The other documents i. e. the application for succession certificate and the arbitration agreement and the entry in the Panda 's bahi are all consistent with the recital in the sale deed and do not establish the case (1) (1925) 52 I.A. 231, 243.
(2) (1912) 39 I.A. 142, 148.
711 of the appellant as to the adoption by Lakshminarayan himself.
It was then argued for the appellant that the course of conduct of the respondent and her various acts of admission and the treatment of the appellant as an adopted son by the respondent and other members of the family gave rise to a strong inference that he (the appellant) was adopted as aleged by him and the evidence should have been so appraised as to support that inference.
Particular emphasis was placed by counsel for the appellant on the fact that soon after the death of Lakshminarayan it was given out that the appellant was his adopted son and this assertion was continuously made in many transactions and documents.
These documents, the course of conduct of Chaltibai respondent in treating the appellant as the adopted son of Lakshminarayan and the length of the appellant 's possession of Lakskminarayan 's estate, it was contended, showed that he was the adopted son of Lakshminarayan.
It was also submit ted that the admissions shifted the onus on to the respondent on the principle that what a party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted, the fact admitted must be taken to be established: Chandra Kunwar vs Narpat Singh (1).
The question of onus loses its efficacy because it was never objected to in the courts below and evidence having been led by the parties, at this stage the court has to adjudicate on the material before it.
And admissions are not conclusive, and unless they constitute estoppel, the maker is at liberty to prove that they were mistaken or were untrue: Trinidad Asphalt Company vs Coryat (2).
Admissions are mere pieces of evidence and if the truth of the matter is known to both parties the principle stated in Chandra Kunwar 's case (1) would be inapplicable.
And in this case there is no admission by the respondent of the appellant 's adoption by her husband in his lifetime.
Such admissions that there are cannot help the case of the appellant or support a different appraisal of the evidence of the factum of (1) (1906) 34 1.
A. 27.
(2) 712 adoption or establish an adoption which is otherwise disproved.
In order to properly appreciate the effect of these admissions it is necessary to consider the circumstances under which these various documents were executed and the acts done or the admissions made.
At the death of Lakshminarayan the respondent was 24 or 25 years old surrounded by the family of Badrinarayan whose interest it was to foist an adoption on her.
Her own relations do not seem to have taken much interest in her or her affairs.
She was thus a widow, lonely and dependent upon her husband 's relations.
The trial Court described her as a pardanashin woman.
Although Badrinarayan himself denied that he was managing the estate of Lakshminarayan, Narsingdas one of the appellant 's witnesses stated that Badrinarayan was doing so and Badrinarayan admitted that he looked after the court cases though at the request of the respondent.
It is with this back.
ground that the evidence has to be considered and weighed.
Any admission made by a widow situated as the respondent was would necessarily carry very little weight: Padamlal vs Fakira Debya (1).
Besides the four documents above mentioned the appellant Kishorilal relied on the following facts as instances of admissions and conduct of the respondent Chaltibai.
The first is the performance of obsequies by the appellant and the subsequent taking of the appellant in her lap by the respondent.
The mere fact of performance of these funeral rites does not necessarily support an adoption.
The performance of these rites frequently varies according to the circumstances of each case and the view and usage of different families.
The evidence led by the appellant him self shows that in the absence of the son, junior relations like a younger brother or a younger nephew performs the obsequial ceremonies.
As was pointed out by the Privy Council in Tayamal 's case (2) the performance of funeral rites will not sustain an adoption unless it clearly appears that the adoption itself was performed under circumstances as would render it (1) A.I.R. 1931 (P.C.) 84.
(2) (1865) 10 M.I.A. 429.
713 perfectly valid.
But then it was submitted that the taking by the respondent of the appellant in her lap coupled with the performance of obsequies was a clear proof of her acceptance of the appellant 's adoption by her deceased husband.
This again is slender basis for any such inference as Badrinarayan himself stated that it was not customary amongst them for the widow to take the adopted son in her lap and in this particular case it was only done as she desired it.
As proof of adoption by Lakshminarayan this piece of evidence has no value because that is not the case of the appellant; and as showing confirmatory process it is valueless in the absence of evidence sufficient to establish the adoption by Lakshminarayan which in this case is lacking.
The appellant 's residing with Lakshminarayan after his adoption and after the death of Lakshminarayan with the respondent was next relied upon by counsel for the appellant As we have already said the appellant had not proved that he was residing with Lakshminarayan after his adoption; on the contrary the evidence shows that he left Tirora soon after his alleged adoption and did not return till after the death of Lakshminarayan.
And then again he returned to Raipur and returned to Tirora after about four or five months.
The mere fact that he continued to reside with the respondent since would not in this case prove adoption, because in the school register he was shown as the son of Badrinarayan and continued to be so shown upto June 30, 1937, and mere residence of a young nephew with a widowed and young aunt is no proof of adoption by her husband in the absence of satisfactory evidence of the factum of adoption.
The appellant, it was next contended, was in possession of the properties of Lakshminarayan after the latter 's death and his name was brought on the record in all civil and revenue proceedings.
As we have said above, Badrinarayan took over the management of the estate of Lakshminarayan and was looking after the conduct of the court cases.
If in those circumstances the mutations were made in the name of the 90 714 appellant or suits were brought in his, name or even if he took out licences in his name would be matters of small consequence.
It is not shown that at the time of the mutations the respondent was present or was represented or the suits were brought with her knowledge and it appears that all this was done because the management of the estate as well as the conduct of the cases in courts was in the hands of Badrinarayan.
Then the fact that after he attained majority, the appellant was managing the estate and was recognised by everybody as its owner also is of little consequence because as far as the respondent was concerned somebody had to manage the property, whether it was Badrinarayan or the appellant Kishorilal to her it made no difference.
It may also be mentioned here that in the mutation order passed by the Tehsildar on April 8, 1936, which related to 3As.
share of Mouza Jabartola the mutation entry was made in favour of the respondent and not in the name of the appellant and in the jamabandi papers relating to different holdings in some places the appellant is shown under the guardianship of his mother Chaltibai and in other places under the guardianship of Badrinarayan as his uncle.
A great deal of stress was laid by the appellant on the fact that his marriage was performed by the respondent Chaltibai and she purported to do so as his adoptive mother.
The performance of the marriage itself does not prove adoption, which is otherwise disproved, and as a circumstance supporting the inference of adoption set up by the appellant it is wholly neutral.
At the most the circumstances relied upon by the appellant may be acts of acquiescence attributed to the respondent but they would be important only if they were brought to bear upon the question which depended upon preponderance of evidence.
If the facts are once ascertained, presumption arising from conduct cannot establish a right which the facts themselves disprove: See Tayamal 's case (1) at p. 433.
Presumptions cannot sustain an adoption even though (1)(1865) 10 M.I.A. 429.
715 it might have been acquiesced in by all concerned when as in the present case, the evidence shows that the adoption did not take place.
Another fact on which the appellant relied was that on October 30, 1933, Badrinarayan, his wife and his sons partitioned their family property.
That is not an act of the respondent and cannot affect her rights if they are otherwise enforceable.
On the whole we are of the opinion that the judgment of the High Court is sound and that this appeal should be dismissed with costs.
Appeal dismissed.
| The respondent filed a suit for declaration and possession of certain properties left by her deceased husband L.
The appellant contested the suit on the grounds that L had adopted him as his son six months before his death In addition to the oral evidence of adoption the appellant alleged that he performed the obsequies of L as such adopted son, that on the thirteenth day after the death of L he was taken by the respondent in her lap, that he entered into possession of the estate of L, that the 699 respondent performed his marriage and that he was recognised as the adopted son of L even by the respondent.
The appellant further pleaded that the respondent was estopped from challenging his adoption by her representations in previous legal proceedings and in documents and on account of the fact that the appellant had by this adoption lost his share of the properties in his natural family.
The respondent denied both the adoption and the treatment of acceptance of the appellant as the adopted son of L.
The trial Court dismissed the suit holding the adoption proved.
On appeal the High Court held the adoption was not proved and decreed the suit.
Both Courts held that the respondent was not estopped from challenging the adoption.
Held, that the High Court.
had correctly held that the adoption of the appellant by L had not been established.
As an adoption results in changing the course of succession, the evidence to support it should be such that it should be free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth.
Held further, that the.
respondent was not estopped from disputing the adoption.
The correct rule of estopped applicable in the case of adoption is that it does not confer status; it only shuts the mouths of certain persons if they try to deny the adoption.
But where both parties are conversant with the true state of facts the doctrine of estopped has no application.
Admissions made by a party are not conclusive, and unless they constitute estopped, the maker is at liberty to prove that they were mistaken or were untrue.
Presumptions arising from the conduct of a party cannot sustain an adoption even though it might have been acquiesced in by all concerned when the evidence shows that the adoption did not take place.
Mohori Bibi vs Dhurmdas Ghosh, (1902) 30 I.A. 114, relied upon.
|
Appeal Nos. 199 and 200 of 1966.
Appeals by special leave from the judgment and order dated May 20, 1964 of the Assam and Nagaland High Court in Sales Tax Reference No. 1 of 1963.
Naunit Lal, for the appellant (in both the appeals).
B. P. Maheshwari, for the respondent (in both, the appeals).
The Judgment of the Court was delivered by Ramaswami, J.
These appeals are brought, by special, leave, from the judgment of the High Court of Assam and Nagaland dated May 20, 1964 in Sales Tax Reference No. 1 of 1963.
The respondent is a registered dealer under the Assam Sales Tax Act (Act 17 of 1947).
For the two periods ending September 30, 1959 and September 30, 1960, the Sales Tax Officer assessed the 962 respondent to sales tax holding that hydrogenated oil was exempt from sales tax but the value of the containers should be assessed at Re. 1/ for each container of hydrogenated oil and at 2 annas for salt bag and a small mustard oil tin which are other exempted goods for the period ending September 30, 1959.
For the other period ending September 30, 1960, the value of the containers of the exempted goods was estimated at Rs. 21, 5001.
The respondent preferred appeals to the Assistant Commissioner of Taxes, but the appeals were dismissed.
The respondent preferred second appeals before the Assam Board of Revenue which by its order dated June 17, 1963 also dismissed the appeals.
The respondent thereafter filed an application under section 32 of the Assam Sales Tax Act, 1947 for reference of the following two questions of law to the High Court "(1) Whether delivery.
of goods made to the Assam Rifles and NEFA, at Rowriah Air Port for consumption outside the State of Assam, constitutes a sale liable to Sales Tax under the Act ? (2) Whether the value of the containers of hydrogenated oil is assessable to Sales Tax under the Act though the oil itself is not taxable under it ?" By its judgment dated May 20, 1964 the High Court answered the first question against the assessee.
With regard to the second question, the High Court held that the value of the containers was not assessable to sales tax "unless separate price has been charged for the containers".
The High Court took the view that there was no evidence to show that actually separate price was, paid for the containers and hence there was no sale and there could not be any tax on the containers.
The High Court accordingly answered the second question in favour of the assessee.
The question presented for determination in these appeals is whether the value of containers of hydrogenated oil is assessable to sales tax under the Assam Sales Tax Act, 1947.
On behalf of the appellant Mr. Naunit Lal contended that the High Court has erred in holding that unless a separate price has been charged for the containers the value of the containers is not assessable to sales tax.
It was submitted that the parties may have intended in the circumstances to sell the hydrogenated oil apart from the containers; and the mere fact that the price of the containers was not separately fixed would make no difference to the assessment of sales tax.
In our opinion, the argument put forward on behalf of the appellant is well founded and must be accepted as correct.
It is well established that in order to con stitute a sale it is necessary that there should be an agreement between the parties for the purpose of transferring title to goods, the 963 agreement must be supported by money consideration, and that as a result of the transaction the property should actually pass in the goods.
Unless all the ingredients are present in the transaction there could be no sale of goods and sales tax cannot be imposed [State of Madras vs Gannon Dunkerley and Co. [(Madras)](1).
But the contract of sale may be express or implied.
In Hyderabad Deccan Cigarette Factory vs The State of Andhra Pradesh(2).
It was held by this Court that in a case of this description what the Sales tax authorities had to do was to ask and answer the question whether the parties, having regard to the circumstances of the case, intended to sell or buy the packing materials or whether the subjectmatter of the contracts of sale was only an exempted article, and packing materials did not form part of the bargain at all, but were used by the sellers as a convenient and cheap vehicle of transport.
At page 628 of the Report Subba Rao, J., speaking for the Court,, observed as follows: "In the instant case, it is not disputed that there were no express contracts of sale of the packing materials between the assessee and its customers.
On the facts, could such contracts be inferred ? The authority concerned should ask and answer the question whether the parties in the instant case, having regard to the circumstances of the case, inten ded to sell or buy the packing materials, or whether the subject matter of the contracts of sale was only the ciga rettes and that the packing materials did not form part of the bargain at all, but were used by the seller as a con venient and cheap vehicle of transport.
He may also have to consider the question whether, when a trader in cigarettes sold cigarettes priced at a particular figure for a speci fied number and handed them over to a customer in a cheap card board container of insignificant value, he intended to sell the cardboard container and the customer intended to buy the same ? It is not possible to state as a proposition of law that whenever particular goods were sold in a container the parties did not intend to sell and buy the container also.
Many cases may be visualized where the container is comparatively of high value and sometimes even higher than that contained in it.
Scent or whisky may be sold in costly containers.
Even cigarettes ' may be sold in silver or gold caskets.
It may be that in such cases the agreement to pay an extra price for the container may be more readily implied.
" The question as to whether there is an agreement to sell packing material is a pure question of fact depending, upon the circumstances found in each case.
But the High Court answered the (1) ; (2) 17 section T. C. 624.
964 question of law referred to it by the Board of Revenue without addressing itself to the question whether there was an express or implied agreement for the sale of the containers of hydrogenated oil in the present case.
We accordingly set aside the judgment of the High Court and direct that the answer to the second question should be that the value of containers of hydrogenated oil is assessable to salestax under the Act if there is an express OK, implied agreement for the sale of such containers.
These appeals are, accordingly, allowed At the time of grant of special leave this Court made a condition that the appellant will pay the cost of the respondent in any event.
Mr. Naunit Lal on behalf, of the appellant gave an under taking that if these appeals are allowed no further steps will be taken to tax the respondent for the containers for the periods covered in the present case.
G.C. Appeals allowed.
| The land owned by the respondents were requisitioned by the first appellant under the Bombay Land Requisition Act for a public purpose viz., for establishing a new village site to resettle victims of flood.
The respondents filed a writ petition in the High Court challenging the validity of the order on the ground that since Act was a temporary Act extended until then upto 1963, the power to requisiton thereunder would inhere to the Government only during the time that it subsisted; so an order passed for a permanent purpose could not be in the contemplation of the Act.
The High Court accepted the objection and, quashed the order.
In a appeal to this Court: Held: The power to requisition under the Act could be exercised whether the public purpose was temporary or not and the excercise of that power for the purpose for the purpose of rehabilitation of flood suffers was neither in abuse of nor unjustified under the Act.
The words for any public purpose in section 5(1) are wide enough to include any purpose of whatsoever nature do not contain any restriction regarding the nature of that purpose.
It places no limitation on the words competent authority as to what kind of "for any public purpose in section 5( 1) are wide enough to include any purpose of whatsover nature and do not contain any restriction regarding the nature of that purpose.
It places nolimitation on the competent authority,as to what kind of Public purpose it should be for the valid exercise of its power nor does it confine the exercise of that power to a purpose which is a temporary one.
[404E F; 405AB] There is no antitheses between the power to requisition and the power of compulsory acquisition under the Land Acquisition Act.
Neither of the two Acts contains any provision under which it can be said that if one is acted upon, the other cannot.
[405D E]
|
Civil Appeal No. 1613 (NT) of 1974 From the Judgment and Order dated 26th April, 1973 of the Allahabad High Court in Misc.
Case No. 202 of 1971.
B.B. Ahuja and Miss A. Subhashini for the Appellant.
P.K. Mukharjee and A.K. Sengupta for the Respondent.
The Judgment of the Court was delivered by 216 PATHAK J.
This appeal by special leave is directed against the judgment of the High Court of Allahabad pronouncing on the meaning of the expression 'reserves ' in the Second Schedule to the .
For the assessment years 1961 62 and 1962 63 the assessee had debited an amount of Rs.5,40,000 and an amount of Rs.2,76,000 to its profit and loss accounts of the relevant previous years respectively.
The amounts were debited on the ground that they represented the assessee 's liability of the relevant years for the additional cane price payable to cane growers in terms of a price linking formula to be fixed by the Competent Authority under the Sugarcane Price Control Order 1955.
Accordingly an item of Rs.8,16,000 being the sum of the two amounts, was shown in the Balance Sheet of the assessee as on September 30, 1962.
The item was shown under the head "Current liabilities and provisions".
In assessment proceedings under the for the assessment year 1963 64, the Income tax Officer did not include the amount of Rs.8,16,000 in the capital computation of the assessee.
Dismissing the assessee 's appeal, the Appellate Assistant Commissioner affirmed the view taken by the Income tax Officer.
The Appellate Assistant Commissioner held that the amount did not qualify as a 'reserve ' inasmuch as the assessee had itself shown it as a 'provision ' in its Balance Sheet.
On second appeal, the Appellate Tribunal noted that the liability had not been allowed as a deduction on revenue account by the Income tax authorities and that the decision was accepted by the assessee.
It also observed that in the subsequent accounting year ending September 1963, the assessee had credited its profits by the said amount by reversing the entries, and further that the assessee had not made any such provision in the subsequent years.
It was also not disputed that no such payment was ever actually made by the assessee.
In the circumstances, the Appellate Tribunal held that the liability for which the 'provision ' was made was at the best unreal and imagined or the mere possibility of a liability.
The Appellate Tribunal was unimpressed by the description of the item as a 'provision ' by the assessee in its Balance Sheet.
The Appellate Tribunal held that the amount represented a 'reserve ' and should have been included in the capital computation of the assessee.
At the instance of the Revenue the Appellate Tribunal referred the case to the High Court of Allahabad for its opinion on the following question: 217 "Whether on the facts and in the circumstances of the case the provision for additional cane price amounting to Rs.8,16,000 was rightly treated as a 'reserve ' forming part of the assessee 's capital for the purposes of assessment to Super Profits Tax for the year under consideration?" The High Court answered the question in the affirmative by its judgment dated April 26, 1973.
We are of opinion that the High Court is right.
Section 4 of the levies super profits tax on every company in respect of so much of its chargeable profits of the previous year as exceed the standard deduction.
The expression 'standard deduction ' is defined by sub section
(9) of section 2 of the Act to mean an amount equal to six per cent of the capital of the company as computed in accordance with the provisions of the Second Schedule, or an amount of fifty thousand rupees, whichever is greater.
The Rules provide for computing the capital of a company for the purposes of super profits tax.
A perusal of rule 1 of the Second Schedule will show that for the purposes of that rule the capital of a company includes the reserve created under some of the provisions of the Indian Income tax Act and "its other reserves in so far as the amounts credited to such other reserves have not been allowed in conputing its profits" for the purposes of the Income tax Act.
The concept embodied in the word "reserves" used in that rule has been examined by this Court in the context of the and the analogous enactment, the Companies (Profits) Super Tax Act, 1964.
In a recent decision, Vazir Sultan Tobacco Co. Ltd. vs Commissioner of Income tax, A.P.,[1981] , this Court had occasion to examine the significance and scope of the concept.
In doing so it referred to the earlier pronouncement of the Court in Metal Box Co. of India Ltd. vs Their Workmen, "The distinction between a provision and a reserve is in commercial accountancy fairly well known.
Provisions made against anticipated losses and contingencies are charges against profits and, therefore, to be taken into account against gross receipts in the Profit and Loss Account and the Balance Sheet.
On the other hand, reserves are appropriations of profits, the assets by which they are represented being retained to form part of the capital employed in the business.
Provisions are usually shown in the Balance Sheet by way of deductions from the 218 assets in respect of which they are made, whereas general reserves and reserve funds are shown as part of the proprietor 's interest.
(See Spicer and Pegler 's Book Keeping and Accounts, 15th Edn., p. 42)".
Regard was had by the court to the relevant provisions of the including the form set out in , Schedule VI thereof where both expressions "Reserves and Surpluses" and "Current Liabilities and Provisions" have been used.
It is not necessary, we think, to embark upon a detailed discussion of the distinction between a 'provision ' and a 'reserve '.
It is sufficient for us to point out that in determining whether an item is a 'provision ' or a 'reserve ' the true nature and character of the sum so retained or appropriated must be determined and its mere description by the assessee in its Balance Sheet is not conclusive of its true nature.
It is now settled that a 'provision ' is a charge against the profits, being made against anticipated losses and contingencies.
A 'reserve ', on the contrary, is an appropriation of profits, the assets by which it is represented being retained to form part of the capital employed in the business.
Unlike a 'provision ' which is a present charge against the profits, the assessee continues to enjoy a proprietor 's interest in the 'reserve '.
In the present case, when the evidence clearly discloses that there was no liability at all on the assessee requiring it to set apart a sum as a charge against its profits and there was never any intention to make payments to the cane growers nor was payment ever made but, on the contrary, the assessee reversed the entries in a subsequent year in its books, it is apparent that the amount can not be described as a 'provision '.
It can only be described as a 'reserve '.
It was part of the capital which fell for computation under rule 1 of the Second Schedule.
The appeal fails and is dismissed with costs.
M.L.A. Appeal dismissed.
| The respondents in Civil Appeal No. 639 of 1985 claimed possession of the property sold by one Nathu on November 22, 1972 by way of pre emption on the ground that they had superior rights being father 's brother 's sons of Nathu covered under Section 15(1)(a) THIRDLY of the Punjab Pre emption Act, 1913.
The claim was decreed and the alienees ' appellants appeal to the District Judge as also the High Court did not succeed.
Hence this appeal by Special Leave.
In Civil Appeal No. 911 of 1971 respondent No. 1 was the owner of some agricultural property in which appellants plaintiffs claimed to be the cultivating tenants.
Respondent No. 1 sold the aforesaid property on July 22, 1959.
The appellants tenants filed a suit on July 21, 1960 for a decree for possession by pre emption.
The Trial Court, the first appellate court as also the High Court took the view that on the date when the sale took place, the appellants had no right of pre emption and, as such, the claims was not maintainable.
Allowing the appeals, ^ HELD: (In C.A. No. 639 of 1983) 1.
The decree passed by the trial court as upheld in the first and second appeals must be reversed in view of the decision of the Supreme Court in Atam Prakash vs State of Haryana, ; holding clauses First, Secondly and Thirdly in section 15(1)(a) as ultra vires the Constitution.
Therefore, section 15(1)(a) THIRDLY is and was not available to the respondents plaintiffs to base their claim of pre emption upon.
[380D] 379 (In C.A. No. 911 of 1971) 2.
All the three Courts have gone wrong in dismissing the claim of the appellants plaintiffs.
They are found entitled to pre empt the alienees under section (15)(1)(a) FOURTHLY of the Act as amended by Act of 1960.
[381E; 382D E] 3.1 It is a well settled principle of law that when the legislature makes provision for a deeming situation to give effect to the mandate of the legislature, all things necessary to effect retrospective intention must be deemed to have existed.
[382C D] 3.2 With effect from February 4, 1960 section 15 of the Punjab Pre emption Act 1913 was amended by Act 10 of 1960.
The inevitable consequence of the retrospective operation of section 31 is to make the substantive provisions of section 15 also retrospective.
It follows that by the fiction introduced by retrospective operation, the rigths which the appellants claimed under the amended provisions of section 15 must be deemed to have vested in them at the relevant time.
Therefore, the appellants must be presumed to have had a right to pre empt on the date of sale.
[380F G; 381G; 382B C] Amir Singh & Anr.
vs Ram Singh & Ors., , referred to.
|
Appeal No. 65 of 1952.
Appeal from an award dated 17th November, 1951, made by the Labour Appellate Tribunal of India, Calcutta, in Appeal No.
280 of 1951.
K. P. Khaitan (Harnam Das, with him) for the appellant.
H. B. Asthana for the respondents.
Gopalji Mehrotra for the Intervener.
December 2.
The Judgment of the Court was delivered by BHAGWATI J.
This is an appeal by special leave against the decision of the Labour Appellate Tribunal, Calcutta, upholding the award made by the State Industrial Tribunal, Uttar Pradesh, with certain modifications.
An industrial dispute arose between the appellant, the Vishwamitra Press Karyalaya, Kanpur, and the respondents, the workers of the Vishwamitra Press as represented by the Kanpur Samachar Patra Karamchari Union, Kanpur, in regard to the alleged victimisation of certain workmen under the guise of 'retrenchment.
That industrial dispute was referred to the Industrial Tribunal, by a notification dated the 24th April, 1951.
The time for making the award expired on the 9th June, 1951, and on the 9th June.
1951, a further notification was issued extending the time for making the award up to the 30th June, 1951.
The 30th June, 1951, was a public holiday and the 1st July was a Sunday.
The Industrial Tribunal made its award on the 2nd July, 1951, and pronounced it in open court on that day.
It was however thought by the Uttar Pradesh Government that the award was beyond time and invalid and on the 18th July, 1951, a notification was issued extending the period up to the 3rd July, 1951.
This award was challenged by the appellant before the Labour Appellate Tribunal.
The Labour Appellate.
Tribunal negatived the Contentions of the appellant.
The appellat applied 274 for special leave which was granted by this Court on the 21st December, 1951, limited to the following grounds: " (1) The Government had no power to extend the time of the making of award after the expiry of the time originally fixed, and the award made by the Adjudicator after such time is illegal, ultra vires, inoperative and void.
(2)In any case the State Government I had extended the time for making the award till 30th June, 1951, and the Adjudicator 's award made after that date is void.
(3)That the extension of time by the Government on.
21st July, 1951, after even the time extended previously had expired, was ultra vires, and it could not make a void award a valid award.
" The industrial dispute which arose between the appellant and the respondents was referred by the Uttar Pradesh Government to the Industrial Tribunal in exercise of the powers conferred by sections 3 and 4 of the Uttar Pradesh .
The Uttar Pradesh Government had in exercise of the powers conferred by section 3 (d) of the Act promulgated an order inter alia providing for the adjudication of the industrial disputes referred by it to the Industrial Tribunals.
Paragraph 16 of that order ran as under : " The Tribunal or the Adjudicator shall hear the dispute and pronounce its decision within 40 days (excluding holidays observed by courts subordinate to the High Court) from the date of reference made to it by the State Government, and shall thereafter as soon as possible supply a copy of the same to the parties to the dispute, and to such other persons or bodies as the State Government may in writing direct.
Provided that the State Government may extend the said period from time to time." Paragraph 9 which prescribed the powers and functions of Tribunals inter alia provided: 275 "(9).
The decision shall be in writing, and shall be pronounced in open court and dated and signed by the member or members of the Tribunal, as the case may be, at the time of pronouncing it.
" It was not disputed before us that the original period calculated in accordance with paragraph 16 above expired on the 9th June, 1951, and the Uttar Pradesh Government validly extended the period up to the 30th June, 1951.
It was however contended that the Industrial Tribunal should have made its award on the 30th June, 1951, and not on the 2nd July, 1951, as it purported to do.
It was urged that the provision as to excluding holidays observed by courts subordinate to the High Court which obtained in paragraph 16 above did not apply when the period was extended up to a particular date.
It would apply only if the period was extended by a particular number of days when for the purpose of the computation of those days the holidays would have to be excluded in the manner therein mentioned.
The Uttar Pradesh Government having extended the period up to the, 30th June, 1951, it was submitted that the award, should have been made by the 30th June, 1951, and, not later and having been made on the 2nd July, 1951, was therefore beyond time and invalid.
This argument might well have prevailed but for the provisions of section 10 of the U. P. General Clauses Act, 1904.
That section provides: " Where, by any United Provinces Act, any act or proceeding is directed or allowed to be done or taken in any court or office on a certain day or within a prescribed period, then, if the court or office is closed; on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the court or office is open.
" The Industrial Court was closed on the 30th June, 1951, which was declared a public holiday.
The 1st July, 1951, was a Sunday and it was competent to the 'Industrial Court to pronounce its decision on the next 276 afterwards on which the Industrial Court was n, i.e., the 2nd July, 1951.
Prima facie therefore award which was pronounced on the 2nd July, 1, was well within time.
The only thing which Shri Khaitan counsel for the appellant urged before us therefore was that the Industrial Court was not a court within the meaning of section 10 of the U. P. General Clauses Act, "The court" according to his submission could only be construed mean a court in the hierarchy of the civil courts the State and an Industrial Court did not fall hin that category.
We are unable to accept this intention of Shri Khaitan.
The Uttar Pradesh industrial Disputes Act, 1947, was an Uttar Pradesh t.
The General Order dated the 15th March, 1951, which provided inter alia for the reference of the industrial dispute for adjudication and the manner in which it was to be adjudicated, was promulgated by e U. P. Government in exercise of the powers conferred upon it by section 3 (d) of the Act.
Paragraph (9) of the General Order provided for the decision ing pronounced by the Industrial Tribunal in open urt and we fail to understand how it could ever be ged that the Industrial Tribunal was not a court ithin the meaning of section 10 of the U. P. General lauses Act.
If the Industrial Tribunal was thus a ourt within the meaning of section 10 of the U. P. General Clauses Act the court was closed on the 30th ane, 1951, as also on the 1st July, 1951, and the decion could be pronounced by the Industrial Court on i.e next day afterwards on which it was open, i.e., on ne 2nd July, 1951.
In our opinion therefore the ecision which was pronounced on the 2na July, 951, 'was well within time and was valid and binding ' in the parties.
The above decision is determinative of this appeal, and the appeal will therefore stand dismissed with costs.
Appeal dismissed.
Agent for the respondents and the intervener: C. P. Lal.
| The time prescribed for making an award under the U. P. , expired on the 9th June, 1951.
The Government extended the period up to 30th June, 1951.
The 30th June was a public holiday and 1st July was a Sunday and the Industrial Tribunal pronounced its award on the 2nd July: Held, that an Industrial Tribunal to which a dispute is referred under the U. P. , is a " Court " within the meaning of section 10 of the U.P. General Clauses Act, 1904, and, as the 30th June and 1st July were holidays, the award pronounced on the 2nd July was not invalid on the ground that it was not pronounced within the period fixed. 273
|
Appeal No. 871 of 1971.
Appeal by certificate from the judgment and decree dated December 21, 1970 of the High Court of Madras in O.S. Appeal No. 108 of 1966.
section V. Gupte, P. Kothandaraman and G. N. Rao, for the appellant.
section T. Desai, A. subhashini and 4.
V. Ranagam, for the respondent.
M. Natesan, N. C. Raghvachari and K. Javaram, for the intervener.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by certificate from a judgment of the Madras High Court arising out of a suit for partition instituted on the original side of that court.
Raja V. Rajeswara Rao the respondent herein and Raja V. Maheswara Rao (deceased) who were brothers owned the cinema known as Odeon at Woods Road, Madras in equal shares.
This property was leased out by them to Isherdas Sahni & Bros.
In 1965 Raja Maheswara Rao filed a suit in which it was stated that apart from other properties owned by the two brothers Odeon Cinema which consisted of land, buildings, theatre, furniture, talkie equipment etc.
was owned by them in equal shares.
The lease in favour of Isherdas Sahni & Bros. was to expire on April 30, 1967.
As we are concerned only with the cinema property in the present case it is unnecessary to refer to the pleadings relating to other properties belonging to the two brothers.
In para 11 of the plaint it was pleaded that having regard to the nature of the property it was not possible or feasible or convenient to divide it into two halves by metes and bounds.
It was prayed that the court in exercise of its inherent jurisdiction should direct the property to be sold by public auction and pay the plaintiff his I share in the net proceeds, the sale being subject to the lease in favour of Isherdas Sahni & Bros. In the written statement filed by Raja Rajeswara Rao it was denied that the Odeon Cinema property was not capable of division into two halves by metes and bound& and it was averred that such a division was not only possible but.
it 907 would be also just and proper.
The right of the plaintiff in the suit to invoke the inherent powers of the court for a decree for sale was denied.
Paras 6 and 7 are reproduced below : "6.
The defendant submits that the suit property is very easily capable of division by metes and bounds into two shares.
The defendant wants to retain his share of the suit property and he does not want to sell or Part with the property.
The plaintiff is not entitled to a decree for sale of the suit property.
In the event of this Honourable Court holding that the suit property is incapable of division into two shares, the defendant submits that he is ready and willing to buy the plaintiff 's share in the suit property and prays that this Honourable Court may be pleased to order a valuation of the plaintiff 's share to be made in such manner as this Honourable Court may think fit and proper and offer to sell the said share to the defendant at the price so ascertained with suitable directions in that behalf.
The defendant is willing to buy the plaintiff 's share, '.
Para 12 was to the effect that in the event of the court ordering sale of the suit property a decree might be passed in favour of the defendant for the purchase of the plaintiffs share at a valuation determined by the court.
On July 26, 1965 the Court appointed a Commissioner for the purpose of determining various matters which would enable the court to decide whether the property was capable of division by metes and bounds.
It appears that before the Commissioner the defendant consistently pressed for a scheme being suggested by which division of the property in dispute could be effected.
The report of the Commissioner dated August 27, 1965 indicates that he had considerable difficulty in suggesting a division.
This is what he said : " My submission would therefore be that though the property could be divided in the manner desired by thedefendant the space which is shown as GI. . its situation is such that business of the type contemplated by the defendant could not be started therein without detriment to the functioning of the theatre '.
It is clear from the order of the learned Single Judge that the prima facie impression which he had formed after inspection of the property was that it was not capable of division by metes and bounds.
He had given no final, decision on the matter when an oral application was made by the plaintiff for withdrawing the suit with liberty to institute a fresh suit.
An objection was raised before the trial judge that because the defendant bad invoked the 908 provisions of section 3 of the Partition Act the plaintiff could not be permitted to withdraw the suit.
The trial judge, however, took the view that so long as a preliminary decree had not been passed in the partition suit it was open to the plaintiff to withdraw the same.
Considering the question whether liberty should be granted to bring a fresh suit under Order 23, Rule 1, the trial judge treated it to be axiomatic that in a suit for partition or redemption when a plaintiff withdraws his suit he will be entitled to file a fresh suit as the cause of action is ' a recurring one.
This is what the trial judge said : "Even if the plaintiff is not granted permission, under Order 23, rule 1, Civil Procedure Code, he will nevertheless have a right to file a suit for partition at any time he pleases.
In view of this obvious right of the plaintiff, it has to be held that the plaintiff is entitled, particularly, in terms of Order 23, Rule 1, to bring a fresh suit.
" The suit was dismissed as withdrawn.
On October 14, 1966, Raja Maheswara Rao sold his half share in Odeon to N. C. Subramaniam and his sons who in their turn sold that share to Isherdas Sahni & Bros. (P) Ltd. on January 19, 1970.
Raja Rajeswara Rao who was defendant in the original suit filed an appeal to the Division Bench of the High Court.
During the pendency of the appeal the plaintiff died leaving a will and by an order passed by the court on October 13, 1967 the executor appointed by the plaintiff under the will was impleaded as second respondent in the appeal.
The Division Bench of the High Court considered that the following question arose for determination : (1) Whether the court has an inherent power of sale of the property which is not capable of division apart from the provisions of the Partition Act and whether the plaintiff invoked only such an inherent power and not the power under section 2 of the aforesaid Act.
(2) Whether the plaintiff having invoked the jurisdiction of the court under section 2 of the Partition Act is entitled to withdraw the suit under Order 23, Rule 1 of the, Civil Procedure Code at the same time reserving his right to file a fresh suit on the same cause of action.
(3) At what stage should the request under section 2 be made and (4) Has the defendant who has invoked the jurisdiction of this Court under section 3 of the Partition Act an indefeasible right to compel the plaintiff to sell the, plain 909 tiff 's half share to him at a valuation and prevent the plaintiff from withdrawing the suit ? On the first question the High Court expressed the view that the Partition Act conferred on the court in a suit for partition a power of sale in certain specified circumstances.
No general power of sale could be spelt out from the provisions of that Act.
It was hold that section 2 of the Partition Act had been invoked by the, plaintiff and the plaintiff could not withdraw a suit in the circumstances of the present case.
It was further held that the request of the defendant under section 3(1) of the Partition Act must be inquired into by the trial judge.
Accordingly the appeal was allowed and the trial judge was directed to restore the suit to his file and frame the necessary additional issue and proceed to dispose of the request made by the defendant under section 3(1) of the Act in accordance with law.
The present appeal has been brought against that judgment.
During the pendency of the appeal in this Court Ramamurthi Iyer the executor appointed by the will of late Raja Maheswara Rao, who had filed the appeal here, died on December 24, 1971.
J. Padmini wife of M. Jayaraj filed C. M. P. 2227/72 for being brought on record as the second appellant on the ground that she was the only person competent to represent the estate of the deceased Raja Maheswara Rao.
Another petition C. M. P. 1781/72 was filed in this Court by Isherdas Sahni & Bros. (P) Ltd. on the ground that the said company was the assignee of late Raja Maheswara Rao and was still his legal representative and should be impleaded in his place.
On July 18, 1972 this Court allowed Smt.
Padmini to be impleaded as appellant but declined the prayer for substitution as appellant of Isherdas Sahni & Bros. (P) Ltd. The company was, however, allowed to intervene in the appeal.
Learned counsel for the parties agreed before us that the only question which survives and which requires our decision is whether in the circumstances of the present case the trial court could allow withdrawal of the suit.
This involves the determination of the correct position under Order 23, Rule 1 of the C.P.C., in respect of a suit for partition of joint property in which the provisions of the Partition Act have been invoked or are sought to be applied.
Order 23, Rule 1, of the C. P. C., to the extent it is material, is as follows "O.23, R. 1.
At any time after the institution of the suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
Where the Court is satisfied (a) that a suit must fail by reason of some formal defect, or 910 (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim.
it may, on such terms as it thinks fit, grant the plaintiff Permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim.
R. 3. . . .".
In Bijayananda Patnaik vs Satrughna Sahu & Others(1) in which an election appeal was sought to be withdrawn it was observed that where an application for withdrawal of a suit is made under O.23, R. 1 (1), the court has to allow that application and the suit stands withdrawn.
It is only under sub rule (2) where a suit is not being withdrawn absolutely but is being withdrawn on condition that the plaintiff may be permitted to institute a fresh suit for the same subject matter that the permission of the court for such withdrawal is necessary.
In Hulas Rai Baij Nath vs Firm K. B. Dass & Co.(2) a suit for rendition of accounts had been filed.
The defence was that the accounts had been settled before any preliminary decree for rendition of accounts was passed.
The plaintiff applied for withdrawal of the suit.
This Court held that there was no ground on which the court could refuse to allow withdrawal of the suit because no vested right in favour of the defendant had come into existence at the point of time when withdrawal was sought.
Certain situations were envisaged where ,different considerations might arise e.g., where a set off might have been claimed under O.8 of the C.P.C. or a counter claim might have been filed.
Even if the defendant in a suit for rendition of accounts could claim a decree for the amount due to him after rendition of accounts no such right could possibly he held to exist before the court passed a preliminary decree for rendition of accounts.
It was particularly noted that in the case of a suit between principal and agent it was the principal alone who normally had the right to claim rendition of accounts from the agent.
Counsel for both sides have sought to derive support from the above decisions of this Court.
On behalf of the appellant it has been contended that under O.23, R. 1 there is an unqualified right to withdraw the suit if the plaintiff does not wish to proceed with it.
It is conceded that if any vested right comes into, existence before the prayer for withdrawal is made the court is not bound to allow withdrawal; but it is suggested that this can happen only in very limited circumstances i.e., where a Preliminary decree had been passed or in those cases whether a set off has been claimed or a counter claim has been made.
According to the appellant no preliminary decree bad been passed in the present suit and (1) ; (2) ; 911 thus no vested right had come into existence in favour of the defendant.
There was no question of any counter claim or set off and therefore the trial court was fully justified in allowing withdrawal of the suit.
If the matter were to be viewed only in the above light the appellant 's contention would have 'a good 'deal of force.
But the nature and incidents of a Partition suit and the consequences which ensue once the provisions of the Partition Act are invoked or sought to be applied must be considered before the contentions of the appellant 's counsel can be accepted.
The Partition Act was enacted to amend the law relating to partition.
Sections 2 and 3 are as follows : section 2.
"Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstance, a division of the, property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.
section 3 (1) If, in any case in which the Court is requested under the last foregoing section to direct a sale, any other shareholder applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the Court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price so ascertained,and may give all necessary and proper directions in that behalf.
(2) If two or more shareholders, severally apply for leave to buy as provided in sub section (1) the Court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the Court.
(3) If no such shareholder is willing to buy such share or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incident to the application or applications.
" 912 The scheme of sections 2 and 3 apparently is that if the nature of the property is such or the number of shareholders is so many or if there is any other special circumstance and a division of the property cannot reasonably or conveniently be made, the court can in its discretion on the request of any of the shareholders interested individually or collectively to the extent of one moiety or upwards direct a sale of the property and distribute the proceeds among the shareholders.
Now when a court has been requested under section 2 to direct a sale 'any other shareholder can apply for leave to by at a valuation the share or shares of the party or parties asking for sale.
In such a situation it has been made obligatory that the court shall order a valuation of the share or shares and offer to sell the same to the shareholder who has applied for leave to buy the share at a price ascertained by the court.
other words if a plaintiff in a suit for partition has invoked the power of the court to order sale instead of division in a partiton suit under section 2 and the other shareholder undertakes to buy at a valuation the share of the party asking for sale the court has no option or choice or discretion left to it any it is bound to order a valuation of the shares in question and offer to sell the same to the shareholder undertaking or applying to buy it at a valuation.
The purpose underlying the section undoubtedly appears to be to prevent the property falling into the hands of third parties if that can be done in a reasonable manner.
It would appear from the objects and reasons for the enactment of the Partition Act that as the law stood the court was bound to give a share to each of the parties and could not direct a sale or division of the proceeds.
There could be, instances where "there were insuperable practical difficulties in the way of making an equal division and the court was either powerless to give effect to.
its decree or was driven to all kinds of shifts and expedient in order to do so.
The court was, therefore, given a discretionary authority to direct a salt where.
a partition could not reasonably be made and the sale would, in the opinion of the court, be more beneficial to the parties.
But having regard to the strong attachment of the people in this country to their landed possessions the consent of the parties interested at least to the extent of a moiety in the property was made a condition precedent to the exercise by the court of the new power.
At the same time in order to prevent any oppressive exercise of this privilege those shareholders who did not desire a sale were given a right to buy the others out at a valuation to be determined by the court.
A question immediately arises whether after a shareholder has applied for leave to buy at a valuation under section 3 the other shareholder who has requested the court to exercise its power under section 2 of ordering sale can withdraw the suit under Order 23, Rule 1 of the Civil Procedure Code.
The answer to this question will 913 depend on the nature of the right or privilege which vests in the co sharer to seek to derive benefit of the provisions of section 3.
In some of the decided cases a choice or option given to the shareholder under section 3 has been treated as a right or a privilege.
See Jhamandas Lilaram vs Mulchand Pahlumal(1) and Nitish Chandra Ghosh vs Promode Kunwr Ghosh.
(2) It was argued on behalf of the appellant that even if a right or privilege is conferred by section 3 on a shareholder once the other shareholder has invoked the procedure prescribed by section 2 of the, Partition Act it is not a vested right which can come into existence only if a preliminary decree has been passed by the court or if a mutual, compromise has been effected between the parties.
Our attention has been invited to the decisions of this court mentioned before in which the passing of a preliminary decree or a compromise being effected were treated as creating a vested right which prevented the plaintiff in a suit for partition from withdrawing it if the other share holders were not agreeable.
According to the learned counsel for the appellant the only decision in.
which the point under consideration has been directly considered is that of Viswanatha Sastri J., in Hasan Badsha vs Sultan Raziah Begum.
(3) There both parties had conceded that the property was incapable of being divided by metes and bounds and that it should be sold under the provisions of the Partition Act.
The defendant applied to Purchase the property under section 3.
A Commissioner was also appointed to report whether the property was capable of division and lie reported that it could not be divided by metes and bounds.
The plaintiff sought to withdraw the suit.
It was held that he was entitled to do so because the court had not made a valuation and an order that the half share of the plaintiff should be conveyed to the defendant on the valuation determined by the court.
It might be that an advantage had accrued to the defendant as regards the admissions made in the plaint about the impracticability of dividing the property.
That did not clothe the defendant with any enforceable right and did not prevent the plaintiff from exercising the right of a suitor to withdraw the suit.
This authority has also been strongly relied upon for the similarity of facts in the present case.
Here also, it is pointed out ', the court had not come to the conclusion that the Property was incapable of division by metes and bounds nor had any valuation been made or order passed for its sale under section 3 of the Partition Act.
On the other hand reliance has been placed by the learned counsel for the respondent on the night which inheres, in other shareholder to claim partition once an action for partition has been instituted '.
Even if the plaintiff does not wish to prosecute that suit or wishes to withdraw it the defendant or defendants can ask for being transposed to the array of plaintiff to have his or their (1) 24 Indian Cases Vol.
1 Cal.
243 at p. 247.
(3) A.I.R. 1949 Mad.
9 L172 Sup.
CI/73.
914 share partitioned.
The, following observations of Crump J., in Tukaram Mahadu Tandel vs Ramchandra Mahadu Tandel (1) have been cited in support of the above submission : "But there are other and wider considerations which lead me to hold that plaintiff could not have withdrawn so as to defeat the defendants ' claim.
It is relevant to point out that in a partition suit a defendant seeking a share is in the position of a plaintiff and one plaintiff cannot withdraw without the permission of another (Order XXIII, Rule 1(4) )".
It has further been emphasised that in a partition suit the plaintiff is not wholly dominus litis and even on the assumption that section 3 confers a privilege or an option on the shareholder who is a defendant in a suit for partition the plaintiff is debarred from defeating the exercise of that privilege or option by resorting to the device of withdrawing a suit under Order 23 Rule 1.
It seems to us that the true position under sections 2 and 3 of the Partition Act so far as O. 23, r. 1 C.P.C., is concerned must be determined in the light of the rule enunciated by Crump I., in the above case as that rule has seldom been doubted and there is a large body of judicial opinion to support it.
(See the cases at page 224, Law of Co Sharers by D. N. Guha).
The various stages in the proceedings would be as follows under sections 2 and 3 of the Partition Act 1.
In a suit for partition if, it appears to the Court that for the reasons stated in section 2 a division of the property cannot reasonably and conveniently be made and that a sale of property would be more beneficial it can direct sale.
This can be done, however, only on the request of the shareholders interested individually or collectively to the extent of one moiety or upwards.
When a request is made under section 2 to the court to direct a sale any other shareholder can apply under section 3 for leave to buy at a valuation the share of the other party asking for a sale.
The court has to order valuation of the share of the party asking for sale.
After the valuation has been made the court has to offer to sell the share of the party asking for sale to the shareholder applying for leave to buy under section 3. 5.
If two or more shareholders severally apply for leave to buy the court is bound to order a sale of the share or shares so the shareholder who offers to pay the highest price above the valuation made by the court.
(1) I.L.R. 915 6.
If no shareholder is willing to buy such share or shares at the price so ascertained the application under section 3 shalt be dismissed, the applicant being liable to pay all the costs.
A question which presents a certain amount of difficulty is at what stage the other shareholder acquires a privilege or a right.
under section 3 when proceedings are pending in a partition suit and a request has been made by a co owner owning a moiety of share that a sale be held.
One of the essential conditions for the applicability of section 2 of the Partition Act is that it should appear to the court that a division of the property cannot reasonably or conveniently be made.
To attract the applicability of section 3 all that the law requires is that the other shareholder should apply for leave to buy at a valuation.
Once that is done the other matters mentioned in section 3 ( 1 ) must follow and the court is left with no choice or option.
In other words when the other shareholder applies for leave to buy at a valuation the share of the party asking for a sale the court is bound to order valuation of his share and offer to sell the same to such shareholder at a price so ascertained.
Coming back to the question of withdrawal of a suit in which the provisions of sections 2 and 3 of the Partition Act have been invoked we find it is difficult to accede to the contention of the appellant that the suit can be withdrawn by the plaintiff after he has himself requested for a sale under section 2 of the Partition Act and the defendant has applied to the court for leave to buy at a valuation the share of the plaintiff under section 'J.
In England the position about withdrawal has been stated thus, in the Supreme Court Practice 1970 at page 334 : "Before Judgment.
Leave may be refused to a plaintiff to discontinue the action if the plaintiff is not wholly dominus litis or if the defendant has by the proceedings obtained an advantage of which it does not seem just to deprive him".
As soon as a shareholder applies for leave to buy at a valuation the share of the party asking for a sale under section 3 of the Partition Act he obtains an advantage in that the court is bound thereafter to order a valuation and after getting the same done to offer to sell the same to such shareholder at the valuation so made.
This advantage, which may or may not fulfil the juridical meaning of a right, is nevertheless a privilege or a benefit which the law confers on the shareholder.
If the plaintiff is allowed to withdraw the suit after the defendant has gained or acquired the advantage or the privilege of buying the share of the plaintiff in accordance with the provisions of section 3(1) it would only enable the plaintiff to defeat the purpose of section 3 (1) and also to deprive the defendant of the above option or privilege which he has obtained by the plaintiff initially requesting the court to sell the property under 916 S.2 instead of partitioning it.
Apart from these consideration it would also enable the plaintiff in a partition suit to withdrawal that suit and defeat the defendants claim which, according to Crump cannot be done even in a suit where the provisions of the Partition Act have not been invoked.
In the argument of the learned counsel for the appellant em phasis has been laid on the fact that in the present case the court did not give any finding that the property was not capable of division by metes and bounds.
It is thus pointed out that the essential condition for the application of section 2 of the Partition Act had not been satisfied and section 3 cannot be availed of by the respondent unless it had first been found that the property could be put to sale in the light of the provisions of section 2.
This submission has hardly any substance inasmuch as the trial court had prima facie come to the conclusion that a division by ' metes and bounds was not possible.
That was sufficient so far as the proceedings in the present case were concerned.
The language of section 3 of the Partition Act does not appear to make it obligatory on the court to give a positive finding that the property is incapable of division by metes and bounds.
It should only "appear" that it is not so capable of division.
It has further been contended that the respondent had maintained throughout that the property was capable of division.
He could not, therefore, take advantage of the provisions of the Partition Act.
Further he never made any proper application invoking the provisions of section 3 of the Partition Act and all that he said in his written statement, was that in case the court held that the said property was incapable of division into two shares he Was ready and willing to buy the plaintiff 's share in the suit at a valuation to be made in such a manner as the court might think proper.
In our opinion, this was sufficient compliance with the requirement of section 3 of the Partition Act.
Section 3(1) does not contemplate a formal application being filed in every case.
The words employed therein simply ' mean that the other shareholder has to inform the court or notify to it that he is prepared to buy at a valuation the share of the party asking for sale.
In the written statement even if it was maintained that the property was not capable of division by metes and bounds the alternative prayer was necessarily made in para 7 which would satisfy the requirements of section 3 of the Partition Act.
Our attention has been invited by the learned counsel for the appellant to certain English decisions and in particular to the case of Peter Pitt & Others vs Thomas Webb Jones(1) and the statement in Halsbury 's Laws of England vol.
24, Second Edition (Hailsham Edn.) paras 745 to 747.
It has been pointed out that in the English Partition Act 1868 (31, 32 Victoriae, Cap.
40) sections 3 and 5 are similar in terms to sections 2 and 3 of the Indian (1) 5 A.C. 651.
917 Partition Act.
The statement in Halsbury 's Laws of England and the law laid down in the decided cases, it is urged, do not support the view which has been pressed on behalf of the respondent.
The view expressed was that the court had a discretionary jurisdiction if any interested party requested for sale to order sale notwithstanding the dissent or the disability of any other party, if it appeared to the court that it would be more beneficial for the parties interested.
The provisions of the English Partition Act do not appear to be in parimutuel with those of the Indian Partition Act and we do not consider that any assistance can be derived from the English law on the points which are being determined by us.
In the result the appeal fails and it is dismissed.
But in view of the entire circumstances we leave the parties to bear their own costs in this Court.
G.C, Appeal dismissed.
| In a suit for partition of property between two joint owners the plaintiff made an application to the Court under section 2 of the Partition Act that as one of the properties namely, a cinema house with its appurtenances, was incapable of division by metes and bounds, the same be sold and the proceeds divided between the parties.
The defendant contended that it was possible to ' divide the property by metes and bounds but offered, if the Court took the contrary view, to purchase it at a valuation made by the Court, under the provisions of section 3 of the Act.
The Court appointed a Commissioner whose report showed that he had considerable difficulty in suggesting a division.
The Single Judge had given no final decision on the matter when an oral application was made by the plaintiff for withdrawing the suit with liberty to institute a fresh suit.
The Judge held that the suit could be withdrawn because no preliminary decree had been passed and that a fresh suit could be brought under the provisions of Order 23 Rule 1 of the Code of Civil Procedure.
The suit was dismissed as withdrawn.
In appeal the Division Bench held that the defendant had a vested right to purchase the property and reversed the judgment of the trial Court.
In this Court it was urged on behalf of the plaintiff 's legal representatives that under Order 23 Rule 1 there was an unqualified right to withdraw a suit except that in certain limited circumstances where the defendant had acquired a vested interest, the Court was not bound to allow withdrawal.
Dismissing the appeal, HELD : The true position under sections 2 and 3 of the Partition Act so far as O. 23, r.
I C.P.C. is concerned must be determined in the light of the rule enunciated by Crump, J., in Tukarama 's case as that rule has seldom been doubted and there is a large body of judicial opinion to support it.
It was observed by Crump J. that on wider considerations it must be held that Plaintiff could not withdraw so as to defeat the defendant 's claim.
He further pointed out that in a partition suit a defendant seeking a share is in the position of a plaintiff and one plaintiff cannot withdraw without the permission.
of another.
[914B, D] Under sections 2 and 3 of the Partition Act, the various stages in the Proceedings would be as follows : 1.
In a suit, for partition if, it appears to the Court that for the reasons stated in section 2 a division of the property cannot reasonably and conveniently be made and that a sale of property would be more beneficial it can direct sale.
Ibis can be done, however, only on the request of the shareholders interested individually or collectively to the extent of one moiety or upwards.
(2) When a request is made under section 2 to the court to direct a sale any other shareholder can apply under section 3 for leave to buy at a valuation the share of the other party asking for a sale.
(3) The court has to order valuation of the share of the party 905 asking for sale.
(4) After the valuation has been made the court has to, offer to sell the share of the party asking for sale to the shareholders applying for leave to buy under section 3.
(5) If two or more shareholders, severally apply for leave to buy the court is bound to order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the court.
(6) If no shareholder is willing to buy such share or shares at the price so ascertained the application Linder section 3 shall be dismissed, the applicant being liable to pay all the costs.
[914E 915A] As soon as a shareholder applies for leave to, buy at a valuation, the share of the party asking for a sale under section 3 of the Partition Act he obtains an advantage in that the court is bound thereafter to order a valuation and after getting the same done to offer to sell the same to such shareholder at the valuation so made.
This advantage, which may or may not fulfil the juridical meaning of a right, is nevertheless a privilege or a benefit which the law confers on the shareholder.
If the plaintiff is allowed to withdraw the suit after the defendant has gained or acquired the advantage or the privilege of buying the share of the plaintiff in accordance with the provisions of s.3(1) it would only enable the plaintiff to defeat the purpose of section 3(1) and also to deprive the defendant of the above option or privilege which he has obtained by the plaintiff initially requesting the court to sell the property under s.2 instead of partitioning it.
Apart from these considerations it would also enable the plaintiff in a partition suit to withdraw that suit and defeat the defendant 's claim which, according to Crump, J. Tukaram 's case cannot be done even in a suit where the provisions of the Partition Act have not been invoked.
, [915G 916A] The trial court bad prima facie come to the conclusion that a division by metes and bounds was not possible.
That was sufficient so far as the proceedings in the present case were concerned.
The language of s.3 of the Partition Act does not appear to make it obligatory on the court to give a positive finding that the property is incapable of division by metes and bounds.
It should only 'appear ' that it is not so capable of division.
[916C] Section 3(1) does not contemplate a formal application being filed, in every case.
The words employed therein simply mean that the other shareholder has to inform the court or notify to it that he is prepared to buy at a valuation the share of the party asking for sale.
In the written statement of the defendant in the present case it was said that even if the court held that the property was incapable of division into two shares the defendant was ready and willing to buy the plaintiff 's share in the suit at a valuation to be made in such a manner as the court might think proper.
That was sufficient compliance with the, requirements of section 3 of the Partition Act.
[916F G] Tukaram Mahadu Tandel vs Ramchandra Nahadu Tandel, I.L.R. , applied.
Bijayananda Patnaik vs Satrughna Sahu & Others [1964] S.C.R. 538, Hulau Rai Baij Nath vs Firm K. B. Dass & Co. ; , Jhamandas Lilaram vs Mulchand Pahulma 244 Indian Cases 273.
Jharan Chandra Ghosh vs, Promoda kumar Ghosh, I.L.R. [1953] Vol.
at page 247, Hasan Badsha vs Sultan Raziah Begum.
A.I.R. 1949 Mad. 772, and Peter Pill & Others vs Thomas Webb Jones, 5 A.C. 651, referred to.
906 Observed that the provisions of the English Partition Act did not appear to be in pari materia with those of the Indian Partition Act and no assistance could be derived from the English law on the points to be determined in the present case.
[917B]
|
Appeals Nos. 1957 and 1958 of 1966.
Appeal by special leave ,from the judgment and order dated September 6, 1965 of the Allahabad High Court, Lucknow Bench in First Civil Appeals Nos. 62 and 71 of 1957.
H.R. Gakhale, M.M. Kshatriya and G.S. Chatterjee, for the.
appellant (in both the appeals).
M.C. Chagla, A.K. Verma, B. Datta and 1.
B. Dadachanli, for the respondents (in both the appeals).
The Judgment of the Court was delivered by Shah, J.
Ranjit Singh was a director of Ranjit Singh & Sons.
Ltd. which acted as a Managing Agent of Shri Vikram Cotton Mills Ltd. Shri Vikram Cotton Mills Ltd. hereinafter called the Company, opened a cash credit account with the Punjab National Bank, and to secure repayment of the balance due at the foot of the account on June 27, 1953 four documents were executed three by the Managing Agents on behalf of the Company and one by Ranjit Singh.
The three: documents executed by the Managing Agents were (i) promissory note for Rs. 13,00,000/ payable with interest at the rate of 21/2% over the Reserve Bank of India rate with a minimum rate of 6% per annum until payment; (ii) a deed of hypothecation of goods described in the Schedule annexed to the document; (iii) a letter to the Bank agreeing that during the continuance of the agreement evidenced by the letter of hypothecation, the Company will remain solely responsible for all loss, damage or deterioration of the securities delivered to the Bank caused by theft, fire, rain, robbery.
464 dacoity or by any other cause whatsoever.
Ranjit Singh executed a deed called an "agreement of guarantee" agreeing to pay on demand all monies which may be due as "ultimate balance" from the Company to the Bank.
In December 1953 the Company closed its business.
The stocks pledged were disposed of by the Bank and the amount realised was credited in the account of the Company.
The Bank claimed that an amount of Rs. 2,56,877/12/6 remained due at the foot of the account.
Some creditors of the Company had in the meantime filed petition in the High Court of Allahabad for an order winding up the Company.
On February 22, 1956, a scheme of composition was settled among the creditors that the total liability of the Company was Rs. 34,45,197 11 2 and the total assets of the Company were Rs. 5,00,000, that the Company was desirous of confirming "a lease agreement" and that in order to safeguard the rights and interests of the Company and its unsecured creditors the Company had entered into an agreement with the lessee.
The scheme was sanctioned by order of the High Court of Allahabad dated May 21, 1956 under section 391 of the Indian after rejecting the opposition of the Bank, The Bank then filed a suit in the Court of the Civil Judge.
Malihabad, Lucknow, against the Company and Ranjit Singh for a declaration that on the date of the suit a sum of Rs. 2,56,877 12 6 was due against the Company and for a decree for payment of that amount against Ranjit Singh with costs and interest pendente lite.
In a joint written statement it was contended, inter alia, that Ranjit Singh was "only a guarantor and not a co debtor" and that he could be made liable only in case of default by the Company, and since the Company had made no default the suit against Ranjit Singh was not maintainable.
Certain preliminary issues were raised by the Trial Judge at the hearing of the suit out of which the following are relevant: "(1) Whether the plaintiff (Bank) is not entitled to file this suit as against the defendant No. 1 (the Company) without obtaining the leave of the Company Judge as alleged ? If so, its effect '? (2) Whether the Court has no jurisdiction to decide on the merits of the plaintiff 's claim in view of the facts as alleged in para 12(A) of the written statement ? If so, its effect ? (3) Whether the suit against defendant No. 2 (Ranjit Singh is not maintainable as pleaded under Paras 7, 13 and 14 of the written statement ?" 465 The Trial Court held that the suit was not maintainable against the Company without obtaining leave of the Company Judge, and also that the Court had No. jurisdiction to adjudicate upon the merits of the Bank 's claim, for under the scheme the Board of Trustees were to scrutinise the claim and their decision was final.
In dealing with the claim against Ranjit Singh the Court head that he had not made any default in payment of the dues and under the terms of guarantee the suit was premature against him as well.
The Court accordingly dismissed ' the suit.
Two appeals were preferred to the High Court of Allahabad against the judgments in the suit.
The High Court held that a scheme of composition between the Company and its creditors confirmed by the Court had statutory operation and was binding on all creditors regardless of the fact whether any of them agreed or not; that according to the scheme the Bank became an unsecured creditor for the amount remaining due after sale of the pledged goods, that under cl. 12 of the Scheme the amount payable to the unsecured creditors shall be the principal amount due to them determined by the Board of Trustees, that it was for the, Board of Trustees to determine the amount that remained payable to the Bank, that though under cI. 16 of the scheme a creditor may file suits and take appropriate steps, for the limited purpose of establishing their claims the suit had to be filed with the leave of the; Court, and that the suit of the Company without obtaining leave of the Court was not maintainable.
The High Court further held that Ranjit Singh had executed an indemnity bond, and that even assuming that Ranjit Singh was a surety it was expressly provided by the terms of the: bond executed by him that the guarantee was only for ensuring payment of the "ultimate balance" remaining due to the Bank on such cashcredit account upto the specified limit, and therefore Ranjit Singh was only to pay "the ultimate balance" which might be found due against the Company after "taking into account all dividends, compositions and payments etc as payments in gross towards the debt", that the Bank 's dues could be recovered from Ranjit Singh upon default in payment by the Company of the ultimate balance after scrutiny by the Board of Trustees, and that the "proper stage for commencing a suit against Ranjit Singh was after the ultimate liability of the Company was determined by the Board of Trustees and the Company committed default in payment".
The High Court accordingly confirmed the decree of the Trial Court even in favour of Ranjit Singh With special leave granted by this Court, these two appeals have been preferred by the Bank.
The Bank claimed a mere declaration against the Company and not a decree for payment of the amount due Section 391 of the , insofar as it is material provides: "(1 ) Where a compromise or arrangement is proposed 466 (a) between a company and its creditors or an class of them; or (b) between a company and its members or any class of them; the Court may, on the application of the Company or of any creditor or member of the Company, or, in the case of a company which is being wound up, of the liquidator, order a meeting of the creditors or class of creditors, or of the members or class of members, as the case may be, to be called, held and conducted in such manner as the Court directs.
(2) If a majority in number representing threefourths in value of the creditors, or class of creditors, or members, or class of members, as the case may be, present and voting either in person or, where proxies are allowed by proxy, at the meeting, agree to any compromise or arrangement, the compromise or 'arrangement shall, if sanctioned by the Court, be binding on all the creditors, all the creditors of the class, as the case may be, and also on the, company, or, in the case of a company which is being wound up, on the liquidator and contributories of the company: Section 392(1) provides: "Where a High Court makes an order under section 391 sanctioning a compromise or an arrangement in respect of a company, it (a) shall have power to supervise the carrying out of the compromise or arrangement; and (b ) may, at the time of making such order or at any time thereafter, give such directions in regard to any matter or make such modifications in the compromise or arrangement as it may consider necessary for the proper working of the compromise or arrangement.
" In the present case a meeting of creditors of the Company was held in which a majority in number representing three fourths in value of the creditors agreed to the scheme of composition and the court rejected objection raised by the Bank and sanctioned the scheme The scheme was binding upon the Bank and the rights and obligations of the Bank had to be worked out under the scheme.
467 In reaching its conclusion that the bond executed by Ranjit Singh in favour of the Bank was of the nature of a contract of ' indemnity and not a contract of guarantee, the High Court was impressed by the circumstance that the Company was not a party to the bond, and that the bond was only a bilateral agreement between the Bank and Ranjit Singh Section 124 of the Indian Contract Act defines a "contract of indemnity" A contract by which one party promises to save the other from loss caused to him by the conduct of the promiser himself, or by the conduct of any other person, is called a "contract of indemnity".
Section 126 defines a "contract of guarantee".
It states: "A 'contract of guarantee ' is a contract to perform the promise, or discharge the liability, of a third person in case of his default.
The person who gives the guarantee is called the 'surety ': the person in respect of whose default the guarantee is given is called the 'principal debtor ', and the person to whom the guarantee is given is called the 'creditor '.
A guarantee may be either oral or written".
A promise to be primarily and independently liable for another person 's conduct may amount to a contract of indemnity A contract of guarantee requires concurrence of three persons the principal debtor, the surety and the creditor the surety undertaking an obligation at the request express or implied of the principal debtor.
The obligation of the surety depends sub ' stantially on the principal debtor 's default; under a contract of indemnity liability arises from loss caused to the promisee by the conduct of the promisor himself or by the conduct of another person In the present case the Company did not execute the bond But the bond executed by Ranjit Singh was one of four documents executed on June 27, 1953 It was part of the scheme to ensure payment of the amount due at the foot of the cash credit account in favour of the Bank The Company executed by its managing agents (i) a promissory note; (ii) a deed of hypothecation; and (iii) a letter assuring the Bank that the Company shall remain solely responsible for all loss, damage or deterioration to the stocks hypothecated with the Bank.
The Bank also insisted upon a promise by some other person to pay the debt, and as a part of the same arrangement Ranjit Singh executed the bond on which the suit is field.
The bond was expressly called an "agreement of guarantee": it was also recited therein that Ranjit Singh guaranteed to the Bank, payment on demand of all monies which may at any time be due to the Bank from the Company on the general balance of that account with the Bank, 468 that the guarantee was to be a continuing guarantee for the ultimate balance which shall remain due to the Bank on such cashcredit account.
In the written statement it was admitted that Raniit Singh was a guarantor.
The bond, it is true, did not expressly recite that the Company was the principal debtor; it is also true and the Company did not execute the bond.
But a contract of guarantee may be wholly written, may be wholly oral, or may be partly written and partly oral.
The documents which secured repayment of the Bank 's claim at the foot of the cashcredit account were executed simultaneously: the bond executed by Ranjit Singh was one of them and the conduct of Ranjit Singh and the Company indicates that Ranjit Singh agreed to guarantee payment of the debt due by the Company.
We hold, therefore, that the Bank, the Company and Ranjit Singh were parties to the agreement under which for the dues of the Company, Ranjit Singh became a surety.
The extent of the liability of Ranjit Singh under the terms of the bond must, therefore, be determined.
Section 128 of the Indian Contract Act provides that the liability of the surety is coextensive with that of the principal debtor, unless it is otherwise provided by the contract.
It is necessary, therefore, to consider whether in the terms of the bond there is anything which shows that the liability of the surety is not co extensive with that of the principal debtor.
Certain clauses of the bond are relevant: "( 1 ) In consideration of your Bank at my request allowing an accommodation by way of cash credit and D/D limits to M/s. S.V. Cotton Mills Ltd , at Lucknow Branch, I, in my personal capacity hereby guarantee to you the payment on demand of all monies which may at any time be due to you from M/s. S.V. Cotton Mills Ltd., on the general balance of that account with your Bank.
(2) I declare that this guarantee shall be continuing guarantee and shall not be considered as cancelled or in any way affected by the fact that at any time the said cash credit and D/D account may show no liability against the borrower, or may even show a credit in favour of the borrower, but shall continue in operation in respect of subsequent transactions". "(4) I further declare that all dividends, compositions, payments received by you from the said borrower or any other person or persons liable or his or their representatives shall be taken and applied as payment in gross without any right 469 on the part of myself or my representative to stand in your place in respect of or to claim the benefit of any such dividends, compositions or payments, until full amount of all your claims against the said borrower or his/their representatives which are covered by this, guarantee shall have been paid and that this guarantee shall apply to and secure ultimate balance which shall remain due to you on such cash credit account upto the extent of Rs. 13,00,000. "(8) I also agree that the Bank shall be entitled to recover its entire dues under the said cash credit account from my person or property upon default in payment by the said borrower".
By clause 4 it is expressly stipulated that the bond secured "the ultimate balance" remaining due to the Bank.
Therefore, unless and until the ultimate balance is determined no liability on Ranjit Singh to pay the amount arises, and it is common ground that the ultimate balance due is not determined.
The suit was for a decree for Rs. 2,56,877/12/6, but the claim against Ranjit Singh could be decreed only for the amount remaining due as the ultimate balance under cls.
4 and 5 of the bond.
We are, however, unable to agree with the High Court that the suit filed was premature.
The Bank was under the terms of the bond executed by Ranjit Singh entitled to, claim at any time the money due from the Company as well as Ranjit Singh under the promissory note and the bond.
The suit could not, therefore, be said to be premature.
The High Court instead of dismissing the suit should have stayed it till "the ultimate balance" due to the Bank from the Company was determined.
We deem it necessary to observe that a binding obligation created under a composition under section 391 of the Companies.
Act, 1956, between the; Company and its creditors does not affect the liability of the surety unless the contract of suretyship otherwise provides.
As observed in Halsbury 'section Laws of England, Vol. 6, 3rd Edn., article 1555 at p. 771: "A scheme need not expressly reserve the rights of any creditors against sureties for debts; of the company, as such rights are unaffected by a scheme".
It was held in Re. Garner 's Motors Ltd.(1) that the scheme when sanctioned by the Court has a statutory operation and the scheme does not release other persons not parties.
to the scheme from their obligations. ' (1) up.
CI/70 18 470 The High Court, in our judgment, should have stayed the suit and after "the ultimate balance" due by the Company was determined the Court should have proceeded to decree the claim according to the provisions of cl. 4 of the bond.
We accordingly modify the decree passed by the Trial Court and declare that the rights of the Bank against the Company are governed by the scheme: sanctioned by the High Court of Aliahabad in Company Case No. 16 of 1956 by their judgment dated May 21, 1956.
Liability of Ranjit Singh being only for payment the ultimate balance ' which remains due on the cash credit account with the Bank in favour of the Company.
The Court will, when such ultimate balance is determined, proceed to pass a decree in favour of the Bank.
Ranjit Singh has filed an affidavit in this Court that in accordance with the scheme the total amount due to the Bank was determined at Rs. 41,536/7/3 as the ultimate balance and a cheque for Rs. 35,721 was sent to the Bank on October 6, 1956 being 25% plus the other pro rate payments allowed 'by the Trustees to creditors, but the Bank did not cash the cheque.
Thereafter by letter dated 'October 28, 1966, the Bank requested that a fresh cheque be issued to them.
Accordingly a fresh cheque for Rs. 38,047 46 was issued to the Bank on November 5, 1966, comprising Rs. 35,721 on the basis of the old cheque plus Rs. 2,326 46 sanctioned for pro rate payment to the Bank by the Trustees on November 3, 1966 at the rate of 50% of the then balance due.
Thereafter another cheque for Rs. 1,744.50 being 50% of the amount then due to the Bank was also forwarded to the Bank on January 29, 1968, in pursuance of another pro rate payment resolution passed by the Trustees and the balance now due to the Bank out of the original amount is Rs. 1,744.09 only.
We are unable to investigate the correctness of these averments.
The decree passed by the High Court is set aside and the suit be remanded to the Trial Court to be disposed of in the light of the observations made in this judgment.
There will be no order as to costs in the High Court and in this Court.
Costs in the Trial Court will be costs in the suit.
R.K.P.S. Suit remanded.
| The first respondent company opened a cash credit account with the appellant bank and on June 7, 1953 to secure repayment of the balance due at the foot of the account the first respondent company executed three documents through its managing agents i.e. a promissory note, a deed of hypothecation and a letter assuring the appellant bank that the company would remain solely responsible for all loss, damage or deterioration of the stocks hypothecated with the bank.
On the same day R a Director of the managing agents executed a bond called "agreement of guarantee ' agreeing to pay on demand all monies which may be due as the "ultimate balance" from the company to the bank.
In December, 1953 the company closed its business.
The stocks pledged were disposed of by the bank and the amount realised was credited in the company 's account.
A balance of approximately Rs. 2.56 lakhs remained due at the foot of the account.
Some creditors of the company in the meantime filed a petition for winding up the company.
On February 22, 1956 a scheme of composition was settled among the creditors and was later sanctioned by the High Court On May 21, 1956 under section 391 of the after rejecting the opposition of the appellant bank.
The bank then filed a suit against the company and R for a declaration that on the date of the suit a sum of over Rs. 2.56 lakhs was due against the company and for a decree for payment of the amount against R.
The trial court dismissed the suit and on appeals filed by both the parties the High Court held that the scheme having been confirmed by the court, had statutory operation and was binding on all creditors including the bank; the bank had become an unsecured creditor for the amount remaining due after sale of the pledged goods and it was for the board of trustees under the Scheme to determine the amount for payment to the bank.
The court also held that the suit against the company without obtaining leave of the court was not maintainable.
It further held that R had executed an indemnity bond and that even assuming he was a surety under the terms of the bond he was only responsible for ensuring payment of the "ultimate balance" which still had to be determined.
The High Court accordingly confirmed the decree of the trial court and held that the suit against R was premature.
On appeal to this Court, HELD: (i) The suit must be remanded to the trial court to determine "the ultimate balance" and for disposal according to law.
463 The appellant bank was entitled to claim at any time the money due from the company as well as from R. under the promissory note and the bond.
The suit could not therefore be said to be premature.
The High Court instead of dismissing the suit should have stayed it till "the ultimate balance" due to the bank from the company was determined.
[471 E F] (ii) The binding obligation created under a composition under section 391 of the , 'between the company and its creditors does not affect the liability of the surety unless the contract of suretyship otherwise provides.
[471 F G] Halsbury 's Laws of England, Vol.
63 rd.
Edn., article 1555 at p. 771; Re.
Garner 's Motors Lid,. ; referred to.
(iii) The bond executed by R was one of the four documents executed on the same day and was part of the scheme to ensure payment of the amount found due to the Bank.
Although the bond was not also executed by the company, the 'fact that it was executed simultaneously with the other documents and the conduct of R as well as the company indicated that R agreed to guarantee payment of the debt due by the company.
It must be held, therefore that the Bank, the company and R were parties to the agreement under which for the dues of the company, R became a surety.
[470 A C]
|
minal Appeal No. 77 of 1958.
Appeal by special leave from the judgment and order dated February 26, 1958, of the Punjab High Court in Criminal Appeal No. 860 of 1957, arising out 155 1220 of the judgment and order dated December 23, 1957, of the Additional Sessions Judge at Ambala in Sessions No. 20 of 1957 and Trial No. 32 of 1957.
Harnam Singh and Sadhu Singh, for the appellant.
Har Parshad and T. M. Sen, for the respondent.
September 2.
The Judgment of the Court was delivered by IMAM J.
The appellant and one Prem were tried for the murder of Nirmala Devi, wife of Banwari Lal, a Practising lawyer at Rupar.
The appellant was sentenced to death while Prem was sentenced to imprisonment for life.
The appellant and Prem appealed against their conviction and sentence to the High Court of Punjab.
Their appeals were dismissed and their conviction and sentence were affirmed by the High Court.
The appellant obtained from this Court special leave to appeal and in the present appeal the only question for consideration is whether the appellant was rightly convicted and sentenced for the murder of Nirmala Devi.
The case of Prem is not before us.
At Rupar, Banwari Lal practised as a lawyer.
His wife, the deceased Nirmala Devi lived with him there with their child, eight months old.
With them also lived Banwari Lal 's sister Vina, a girl of about 16 to 17 years of age.
Banwari Lal had employed Prem as a servant about four months before the murder of Nirmala Devi on February 12, 1957.
This Prem was a youngster of about fourteen years of age at that time.
According to the prosecution, lie was an associate of the appellant who was posted at Rupar in the capacity of a foot constable in the police force.
The appellant and Prem became friendly and it is said that the appellant had an eye on the ornaments of the deceased Nirmala Devi, which she was in the habit of wearing when she went out.
The deceased was a young person in her twenties and of good character.
She used to be left alone in the house with her child, when Banwari Lal went to court and Vina went to school.
Prem, however, used to remain at the house.
It is the case of the prosecution that the appellant in 1221 conspiracy with Prem took advantage of the deceased being alone in the house, when the appellant went upstairs and killed Nirmala Devi and stole her ornaments, while Prem remained down stairs with her child.
Vina had returned from school round about, 12 30 in the afternoon as it was the recess time.
At that time Nirmala Devi was in the drawing room feeding her child.
Prem was also at the house at that time.
Vina again returned to the house at about 3 45 p.m.
She enquired from Prem as to where Nirmala Devi was and was told by him that he did not know as he himself had been absent from the house.
Vina, thereafter, went upstairs to the kitchen to take her food.
Banwari Lal had returned from court at about 3 15 p.m., earlier than usual, as he had to attend an election meeting at the Municipal Office.
He was accompanied by a pleader Sudarshan Kumar Jain who was going to Chandigarh.
He had intended to give him a cup of tea, but finding the door leading through the staircase to the residential portion looked and thinking that his wife was not at home, lie and his friend left for the Municipal Hall.
Banwari Lal returned to his house at about 4 45 p.m.
He enquired from Prem as to where his wife was and was informed by him that she had gone out.
He went upstairs and saw his sister Vina eating her food.
On opening the drawing room, however, Banwari Lal was stunned to find his wife lying dead on the floor in a pool of blood.
lie noticed several injuries on her and that some of her jewellery was missing.
He proceeded to the police station almost opposite to his house and lodged a First Information Report about the murder at 5 p.m.
There can be no manner of doubt that an audacious and a brutal murder of a young and a defenceless person had taken place with the intention of robbing her of her ornaments.
The fact of murder has been apply proved and has not been seriously questioned.
The only matter for consideration is Whether the evidence established that the deceased Nirmala Devi was murdered by the appellant with the assistance of Prem.
The evidence upon which the prosecution relied for 1222 conviction is the confession of Prem, the statement of the appellant which led to the recovery of the ornaments belonging to Nirmala Devi from the possession of one Raj Rani a mistress of the appellant, the recovery of a blood stained dagger from his belongings at the police station and his conduct after the murder.
So far as the confession of Prem was concerned, it was retracted by him in the Court of Session.
Prem 's statement under section 342 to the Committing Magistrate, however, which had been brought on to the record under section 287 of the Code of Criminal Procedure, clearly stated that the confession was a voluntary one.
Indeed, his statement to the Committing Magistrate showed that the crime was committed by the appellant and that Prem had assisted him in the commission of that crime.
Although in the Court of Session Prem had retracted his confession, his memorandum of appeal in the High Court would indirectly suggest that the con fession made by him was voluntary and true.
Before we consider whether the confession was a voluntary and a true one, it is necessary to deal with the submission on behalf of the appellant that the confession, having been retracted by Prem, is irrelevant so far as the appellant is concerned as the retracted confession of an accused cannot be used against his co accused.
Although on behalf of the appellant it had not been argued that the retracted confession of Prem was inadmissible, we regard the submission that it was irrelevant and cannot be used against the appellant as tantamount to saying the same thing.
Section 30 of the Indian Evidence Act states: " When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.
" It will be clear from the terms of this section that where more persons than one are being tried jointly for the same offence, a confession made by any one of them affecting himself and any one of his co accused 1223 can be taken into consideration by the court not only against the maker of the confession but also against his co accused.
The Evidence Act nowhere provides that if the confession is retracted, it cannot be taken into consideration against the co accused or the confessing accused.
Accordingly, the provisions of the Evidence Act do not prevent the Court from taking into consideration a retracted confession against the confessing accused and his co accused.
Not a single decision of any of the courts in India was placed before us to show that a retracted confession was not admissible in evidence or that it was irrelevant as against a co accused.
An examination of the reported decisions of the various High Courts in India indicates that the preponderance of opinion is in favour of the view that although it may be taken into consideration against a co accused by virtue of the provisions of section 30 of the Indian Evidence Act, its value was extremely weak and there could be no conviction with out the fullest and strongest corroboration on material particulars.
The corroboration in the full sense implies corroboration not only as to the factum of the crime but also as to the connection of the (co accused with that crime.
In our opinion, there appears to be considerable justification for this view.
The amount of credibility to be attached to a retracted confession, however, would depend upon the circumstances of each particular case.
Although a retracted confession is admissible against a co accused by virtue of section 30 of the Indian Evidence Act, as a matter of prudence and practice a court would not ordinarily act upon it to convict a co accused without corroboration.
On this basis it is now to be seen whether the confession was voluntary and true.
It will then be necessary to consider whether the confession has received full and strong corroboration in material particulars both as to the crime and the appellant 's connection with that crime.
It was strongly urged that the police had adopted a device to get the accused Prem into their custody again on a charge of theft as lie had already been placed in the judicial lock up after his arrest in 1224 connection with the murder of the deceased Nirmala Devi.
He was arrested on June 25, 1957, in connection with a burglary which had taken place on December 5, 1956, and he had been since then in police custody in connection with the investigation of that case until July 10, 1957, the last day of remand to police custody.
On July 10, 1957, Prem made a confession before a Magistrate concerning the murder of Nirmala Devi.
Prem was discharged in the burglary case on July 20, 1957.
Having adopted this device of getting Prem into police custody the police were in a position to exercise great influence upon Prem, a, young ' lad of about 14 years of age.
When lie made his confession on July 10, 1957, he must have been still labouring under the influence of the police and sufficient time was not given by the Magistrate to remove that influence.
The Magistrate ought not to have recorded his confession on July 10, 1957.
He ought to have remanded Prem to jail custody for a few days in order that the police influence may be removed from his mind.
We have examined the record and find no justification for the suggestion made that the police adopted a device to got the accused Prem in to their custody again by arresting him in the burglary case of December 5, 1956.
It is true that the accused Prem was discharged from the burglary case on July 20, 1957, but there is nothing on the present record to suggest that his arrest in the burglary case of December 5, 1956, was without justification and that it was done purely for the purpose of getting him back into police custody.
It is true that Prem had been in police custody from June 25, 1957 to July 10, 1957, and the Magistrate might as well have refrained from recording his confession on July 10, 1957.
It is clear, however, from the record of the Magistrate that at 1 p.m. the accused Prem was produced before him by the police for the recording of his confession.
The Magistrate told him that lie was not a police officer but a Magistrate and that he was at liberty to think over the matter whether he would volunteer to make a confession and gave him time, until 2 p.m. for this purpose.
He further explained to Prem that he should 1225 consider himself quite free and not make a statement under the influence or temptation of anybody.
At 2 p.m. the Magistrate took various precautions.
All the doors and the windows of his room were closed.
Everyone, except Prem, was turned out.
The police were asked to stand in the verandah from where they could not see Prem.
Prem was again told that he must regard himself as quite free and should not be under the influence of the police or anybody else.
The Magistrate then put a series of questions which have been recorded in the form of questions and answers.
By question 7, the Magistrate enquired how long Prem had been in police custody and from where he bad been brought that day, to which, the answer was that some 5 months back he had been arrested since then sometimes he had been sent to jail and sometimes had been kept in police custody.
By question 8, the Magistrate asked whether he was kept awake during that period or had been given greased diet (Mnaggan giza, etc.), which we understand to mean whether he had been given greasy food which would induce a sleepy condition in persons eating such food, to which question he replied that he had enjoyed regular sleep and had been taking common diet.
At the beginning, of course, the police had kept him awake.
The Magistrate also enquired whether the police or any other person had made any promise or had given any undertaking to help Prem or had given all temptation to him or had influenced or frightened him.
If so, he should state this fully from his heart, to which Prem replied that he had not been given any promise, temptation or inducement, nor was he subjected to fear or exhortation.
He had been merely asked to make a true statement.
Prem then said that he would make his statement of his own free will and the Magistrate could believe him or not.
The Magistrate also asked Prem whether any one had beaten him or if there was any mark of injury on his body, to which, the answer was 'no '.
The Magistrate then examined the body of Prem and found that there was no mark of injury on his person.
The Magistrate then asked as to why he was making a confession, to which, Prem answered 1226 that he was doing so of his own free will and to lessen the burden of his heart.
The nature of the questions put and the manner in which the Magistrate examined Prem clearly showed that the Magistrate took every precaution to be satisfied whether Prem was going to make a voluntary statement.
We are satisfied that during the period of police custody between the 25th of June and July 10, 1957, Prem was not induced to make a confession.
He made the confession voluntarily.
That the confession was voluntary finds support from Prem 's statement to the Committing Magistrate under section 342 of the Code of ' Criminal Procedure.
In that statement Prem told the Magistrate in answer to various questions the following story: He had been employed as a domestic servant by the lawyer Banwari Lal.
He had developed during this period friendship with the appellant.
The appellant had told him that he would commit rape on Nirmala Devi and would rob her of her ornaments and, if she resisted, he would murder her.
He informed the appellant on February 11, 1957, that Nirmala Devi would be alone in her house at about mid day on February 12, 1957.
He had received on February 11, 1957, a dagger wrapped in a pajama from the appellant and bad kept it in the store behind the office of Banwari Lal On February 12, 1957, he informed the appellant that Nirmala Devi was alone in the house.
He had handed over the dagger and the pajama to the appellant on February 12, after taking it out of the store room.
The appellant had sought his assistance in the commission of rape, robbery and murder of Nirmala Devi and he had been promised a half share in the booty.
To the question whether he had kept watch over the house of Banwari Lal when the appellant entered it for committing rape, robbery and murder of Nirmala Devi, Prem answered that he was made to stand near the stair case by the appellant and that he kept watch while the appellant committed the crime.
He finally admitted to the Committing Magistrate that the confession which had been recorded on July 10, 1957, was a voluntary confession.
When asked whether he had to say anything else, Prem told the Committing 1227 Magistrate that he had made a true statement before him and also in the Court of the Magistrate who had recorded his confession.
Shorn of details the substance of the story told by Prem to the Committing Magistrate is in keeping with the substance of his confession recorded on July 10, 1957.
It is to be further remembered that the statement of Prem to the Committing Magistrate was brought on to the record of the Court of Session under section 287 of the Code of Criminal Procedure which directs that the statement should be read as evidence.
Although Prem retracted the confession in the Court of Session, his memorandum of appeal filed in the High Court showed that he had acted under the influence of the appellant and had been allured by him to achieve his object.
He, however, pleaded that be should not have received such severe punishment.
On the contrary, lie should have been acquitted.
These circumstances clearly indicate that the confession recorded on July 10, 1957, was a voluntary confession.
It remains now to be seen whether it was a truthful confession.
Prem asserted in his confession that he had acquaintance with the appellant previous to the appellant 's posting to Rupar and their association continued at Rupar.
There is nothing inherently improbable in this story of Prem.
It is true that there is not much evidence to corroborate Prem.
that lie and the appellant were acquainted and used to associate.
Banwari Lal had seen them talking to each other once or twice before the murder.
The police station at which the appellant was posted was almost opposite to the house of Banwari Lal where Prem was employed as a servant and there was every probability of the appellant and Prem meeting.
It is significant that on the day of murder of Nirmala Devi, in the afternoon, Prem was present in the compound of the police station with a child in a perambulator.
Foot constable Gurbachan Singh, P.W. 4, enquired from Prem as to why he had gone inside the police station.
On this the appellant asked Gurbachan Singh not to remonstrate with Prem as he was a mere, boy.
Gurbachan 156 1228 Singh had stated that previously he had never seen Prem going inside the police station with a perambulater.
The intervention of the appellant suggests that he knew Prem and was friendly towards him.
Prem 's story that he was employed as a servant by Banwari Lal is corroborated by the evidence of Banwari Lal himself, his sister Vina and his clerk Naranjan Das.
In the nature of things there could be no corroboration of Prem 's story about the appellant 's proposal to rape and rob Nirmala Devi and, if necessary, to murder her.
According to Prem 's confession a day before the murder he had been given a dagger by the appellant along with a _pajama and that Prem took the pajama and the dagger to the upper storey of Banwari Lal 's house having concealed it in the kothri of firewood which was near the office room of Banwari Lal.
This part of his story receives corroboration from the evidence of Banwari Lal that after the murder he had found a blood stained pajama, Exbt.
P. 14, banging on the door of the store room which is at the back of the residential portion of the house.
Banwari Lal is supported by Nand Lal, P.W. 34, Motor Mobile Patrol Sub Inspector, who recorded the First Information of Banwari Lal.
According to him, he found the pajama hanging on one of the shutters of an almirah fixed in the wall in the fuel room situate at the back of the room where Nirmala Devi was found lying dead.
It was bloodstained.
Banwari Lal had clearly stated that this pajama did not belong to him or any one in his house.
The existence of the pajama in Banwari Lal 's house lends corroboration to the story of Prem that he had been given this pajama and that he had concealed it in the kothri of fire wood near the office of Banwari Lal.
The statement of Prem that he had asked Raj sabziwala to bring down the perambulator of the child and that he did so, finds corroboration from the evidence of Gurbachan Singh that in the afternoon he found Prem accused in the police station with a child in a perambulator.
The presence of the accused Prem at Banwari Lal 's house near about the time of the murder appears to 1229 be clear.
When Vina had left for her school at 9 45 a.m., Prem was in the house.
Vina returned to the house from her school at about 12 30 noon.
At that time Prem was present in the verandah in front of the office.
When she finally returned from the school at about 3 45 p.m., apparently Prem was not in the house but arrived shortly thereafter.
The murder was committed at any time between 12 30 p.m. and 2 15 p.m. if the appellant was the murderer, because Gurbachan Singh 's evidence showed that the appellant was at the thana at 2 15 p.m.
Apparently, the appellant went out with Gurbachan Singh and returned to the thana with him in time for Gurbachan Singh to be on duty from 3 p.m.
If the appellant was the murderer he must have committed the murder before 2 15 p.m. Nirmala Devi was alive at 12 30 p.m. when Vina saw her feeding her child.
Assuming that Vina did not stay long, as she had come to get some money to purchase a copy book, it would not be unreasonable to assume that Nirmala Devi was alive up to 12 40 or 12 45 p.m.
The interval of time between that and 2 15 p.m., when the appellant was seen at the police station, is about 1 1/2 hours.
It would be probable that during this time Prem was present in the house and when he says that lie was present there there is no inherent improbability in his statement.
At 3 45 p.m., when Vina arrived, no doubt Prem was not in the house, but he came shortly thereafter and Vina took from him the child of Nirmala Devi.
This clearly shows that Prem had gone out of the house with the child of Nirmala Devi which one would not normally expect him to do at that time of the day, if Nirmala Devi had left the house to do shopping or to visit anyone.
If Nirmala Devi was in the house and alive it was most unlikely that Prem accused would have taken her child out of the house.
Prem 's statement that he was amusing the child while the appellant was doing his nefarious work appears to be true, because the child was with him and he had been seen at the police station with a child in a perambulator.
If the circumstances tend to show that in all probability Prem was in the house from 12 30 p.m. to 2 15 p.m. then his 1230 story that he was present at the house when the appellant came there appears to be a truthful statement.
It is significant that when Vina arrived at the house at 3 45 p.m. she found the door of the stair case locked.
When Prem arrived she saw the key in his hand, although Prem had said it was lying on the floor.
He opened the lock of the door of the stair case with that key and Vinia went upstairs to the second floor where she went to the kitchen and took her food.
When Banwari Lal arrived at his house at about 3 15 p.m. he found his office room locked from outside.
He wanted to go to the residential portion for taking tea, but found the door of the stair case locked from outside.
Finding the door of the stair case leading to the residential portion of his house locked, he came down and went away in connection with the election work.
On his return he enquired from Prem about the whereabouts of his wife and Prem told him that she had gone out.
He wished to go upstairs to the residential portion of the house and Prem at his request opened the lock of the stair case, the key being with him.
According to Banwari Lal, the usual practice was to lock the door of the office which adjoins the stair case and to bolt the other door from inside, but on the day of the murder the door adjoining the stair case was looked while the other door was lying open.
Banwari Lal 's clerk, Naranjan Das, came to the house at 4 15 or 4 30 p.m.
He went up to the verandah in front of the office and found both the doors of the office locked from outside.
He asked Prem to open the office, but Prem told him that the key of one of the locks which was fixed on the door adjoining the stair case, had been lost.
He gave the key of the other lock and then Prem took out a key from his pocket and opened the lock fixed on the other door of the office.
There is no reason to distrust all this evidence which would indicate that after Vina had left the house on her first visit at about 12 30 p.m. the two doors were locked from outside which was something unusual and that the keys of the looks of these doors were with Prem.
He had given evasive answers about the keys to Vinia and Naranjan Das 1231 while the key was in his pocket.
These circumstances also indicate the truthfulness of Prem 's statement that he was present in the house during the period in which Nirmala Devi was murdered.
His statement in the confession that the appellant had locked the door and had thrown the key in tile office verandah and that while he sat there, the child, while playing, picked up the key and that he said to the girl (presumably Vina) there was the key and then he un locked the door appears to be true.
Reference in some detail to the various statements of Prem in the confession and the circumstances proved by the evidence of various witnesses became necessary in order to ascertain whether Prem had made a truthful statement about his presence at the house during the period in which Nirmala Devi was murdered and also as to the part he had played in assisting the appellant to commit the murder.
While it is true that in the confession Prem does not attribute to himself any participation in the murder itself, it is not to be for gotten that the murder of Nirmala Devi could not have taken place without his aid.
Whoever entered the house of Banwari Lal in broad day light could not have gone upstairs without the knowledge and cooperation of Prem.
According to his statement lie knew what was the intention of the appellant and to assist him in the accomplishment of his purpose he had concealed in his master 's house the pajama and the dagger given to him by the appellant.
If he did not actually participate in the murder he would be equally guilty of the murder if that murder was committed with his aid and his connivance.
The confession, as a whole, concerning the murder of the deceased appears to us to be true and we have no hesitation, after a very careful consideration of all the circumstances appearing in the case, in saying so.
In our opinion, Prem 's confession was not only voluntary and true but it had been corroborated in material particulars regarding the general story told by him in his confession.
The other question which now remains for consideration is whether the confession received material corroboration connecting the appellant with the murder of Nirmala Devi.
1232 Amongst the appellant 's possessions a dagger was recovered which appeared to be blood stained but owing to the long delay in sending it to the Chemical Examiner its origin could not be determined.
From the medical evidence it appears that the dagger in question could have inflicted the kind of injuries suffered by Nirmala Devi.
The most important corroboration, however, is the recovery of the ornaments of the deceased.
These ornaments, according to Banwari Lal, she had been wearing on the day of the murder when he left for court.
On some statement made by the appellant his mistress Raj Rani was visited by the authorities and in the presence of respectable witnesses some ornaments were recovered and they were identified as the ornaments of the deceased.
The evidence of Raj Rani also showed that these ornaments were given to her by the appellant.
She apparently had no reason to depose against the appellant, because she had said in her evidence that she wished to meet the appellant before giving clue to the ornaments and that she wished to give the ornaments to the police in his presence.
The defence case was not that these ornaments did not belong to the deceased but that, on the contrary, they were hers but had been produced by Banwari Lal during the police investigation and that it was falsely alleged that they had been recovered from Raj Rani.
The evidence of Charan Dass, P. W. 24, President of the Municipal Committee of Rupar, however, clearly shows that in his presence the appellant made a statement to the police to the effect that one gold kara and seven gold bangles had been given by him to Raj Rani.
This statement was made on August 3, 1957.
His evidence also shows that on August 9, 1957, he accompanied the police party from Rupar to Jangpura and that Raj Rani took them to her sister 's house.
She brought out a trunk from inside the room.
She opened the lock of the trunk and produced from it a tin box which contained a gold kara and seven gold bangles.
The evidence of GoriShanker, a Municipal Commissioner of Rupar is to the same effect and corroborated Charan Dass.
The courts below believed these two witnesses.
We have examined 1233 their evidence with some care in view of the submission on behalf of the appellant that they should not be relied upon.
There is nothing in their evidence to show that they were in any way hostile to the appellant or had any motive to depose against him.
The courts below having believed these witnesses, we would not ordinarily go behind their view on a question of fact.
Having regard, however, to the con sequences which arise as a result of the acceptance of their evidence in this particular case, we have examined their evidence in the light of the submission made on behalf of the appellant.
It was suggested that at the earlier stage the police investigation was not properly conducted and the public were dissatisfied.
A deputation of influential persons met the Chief Minister as a result of which a more active and thorough investigation took place.
It may be that influential persons of Rupar interviewed the Chief Minister, being dissatisfied with the manner in which the investigation was taking place.
There is, however, nothing to show that Charan Dass or Gori Shanker were amongst those who had interviewed the Chief Minister or that they had taken part in any agitation against the police concerning the manner of the investigation.
It is difficult to believe that two responsible persons such as the President of the Municipal Committee and one of its members would go out of their way to depose to certain events which would provide very strong evidence against the appellant and lead to his conviction on a capital charge, unless they had really heard the statement of the appellant and witnessed the recovery as deposed to by them.
It was then suggested that, apparently, Charan Dass had no real reason to go to the police station on August 3, 1957, and, therefore, his story that he heard the appellant make the statement which led to the recovery of the ornaments was false.
Charan Dass, however, had stated the reason for his visiting the police station.
He went there to complain to the police that people parked their push carts in the bazar and thus obstructed the passage.
In our opinion, as the President of the Municipal Committee of Rupar, if a nuisance was 1234 being created by people parking their push carts in the bazar, it was a natural thing for him to go to the police station in order to get such obstruction removed and for the police to see that the nuisance did not continue.
We can find nothing strange in the conduct of Charan Dass or Gori Shanker in having gone to the police station in the circumstances deposed to by them.
We have no hesitation in believing the evidence of Charan Dass and Gori Shanker that the appellant made a statement to the effect that he had given one gold kara and seven gold bangles to Raj Rani and that the same were recovered from Raj Rani in their presence.
It would appear, therefore, on the evidence of Raj Rani and these witnesses, that not long after the murder of Nirmala Devi the appellant was in possession of her ornaments and that he had given them to Raj Rani.
The ornaments being in possession of the appellant soon after the murder would show that he either stole the ornaments or was in possession of them knowing or having reason to believe that they were stolen properties.
Nirmala Devi had been murdered by someone who had stolen her ornaments.
According to the confession of Prem it was the appellant who had gone up stairs where Nirmala Devi was Sometime after the departure of Vina.
He had given the appellant the pajama and the dagger.
Thereafter, the appellant left the house leaving the pajama behind.
After the departure of the appellant no outsider entered the house.
It is clear, therefore, that in order to steal the ornaments the thief killed Nirmala Devi.
The circumstances clearly indicate that the thief was no other than the appellant.
It seems to us, therefore, that the confession of Prem receives strong and substantial corroboration connecting the appellant with the crime of the murder of the deceased Nirmala Devi.
The conduct of the appellant from 2 15 p.m. onwards clearly shows that he was in a disturbed state of mind which is consistent with his having committed the crime, It is curious that lie was uttering the word I Nirmala.
It had been suggested to Gurbachan Singh that the Assistant Sub Inspector Rikhi Ram had a 1235 daughter with whom the appellant had illicit connection and that her name was Nirmala, but the witness stated that he had no knowledge about it.
The appellant in his statement under section 342 of the Code of Criminal Procedure before the Sessions Judge admitted that he was shouting out the name of Nirmala but he had a love affair with a girl named Nirmala, daughter of Rikhi Ram.
We are not prepared to accept the explanation of the appellant as to how he was calling out the name of Nirmala so soon after the murder of Nirmala Devi.
This conduct of the appellant may not by itself have been corroboration of sufficient importance to enable a court to convict the appellant on the retracted confession of Prem.
No stronger and no better corroboration, however, of the confession of Prem could be had than the evidence which showed that the appellant had been in possession of Nirmala Devi 's ornaments soon after her murder.
There were several comments made on the evidence by the learned Advocate for the appellant, but those comments were with reference to unimportant matters and were not at all relevant.
In an appeal by special leave it is not ordinarily permissible to make submissions on questions of fact.
The principal matter with which we have been concerned in this appeal was whether the confession of Prem had been corroborated in material particulars regarding the general story told by him and in material particulars tending to connect the appellant with the murder of the deceased.
We have no hesitation in saying that the confession of Prem has been amply corroborated in both respects.
Recovery of the ornaments of the deceased at the instance of the appellant incriminated him to the fullest extent and lent the strongest corroboration to the con fession of Prem from which it was apparent that no other person than the appellant could have murdered Nirmala Devi.
The appeal is accordingly dismissed.
Appeal dismissed.
| The appellant was tried along with P for the offence of murder.
The prosecution case was that the appellant, in conspiracy with P who was employed as a servant in the house of the deceased, took advantage of the deceased being alone in the house with her child, went upstairs and killed her and stole her ornaments, while P remained downstairs with the child.
The evidence upon which the prosecution relied for conviction consisted of the confession of P, the statement of the appellant which led to the recovery of the ornaments belonging to the deceased from the possession of the mistress of the appellant, the recovery of a blood stained dagger from his belongings at the police station and his conduct after the murder.
The confession of P was later retracted by him in the Court of 'Session.
It was contended for the appellant that a retracted confession of an accused cannot be used against his co accused Held, that a voluntary and true confession made by an accused though it was subsequently retracted by him, can be taken into consideration against a co accused by virtue Of section 30 of the Indian Evidence Act, but as a matter of prudence and practice the court should not act upon it to sustain a conviction of the co accused without full and strong corroboration in material particulars both as to the crime and as to his connection with that crime.
The amount of credibility to be attached to a retracted con fession would depend upon the circumstances of each particular case.
Held, further, that on the evidence in the case the confes sion of P was voluntary and true and was strongly corroborated in material particulars both concerning the general story told in the confession concerning the crime and the appellant 's connection with crime.
|
Appeal No. 472 of 1962.
Appeal from the judgment and decree dated December 23, 1960, of the Bombay High Court in First Appeal No. 464 of 1958.
R.K. Garg, S.C. Agarwala, D.P. Singh and M.K. Ramamurthi, for the appellants.
S.V. Gupte, Additional Solicitor General, V.D. Mahajan and R.N. Sachthey, for the respondent.
October 23, 1963.
The Judgment of the Court was delivered by WANCHOO J.
This is an appeal against the judgment and decree of the Bombay High Court on a certificate granted by that Court.
The appellant was in the service of the Union of India.
He was appointed on June 11, 1949 as an officiating Assistant Director Grade II in the office of the Textile, Commissioner, Bombay and was working as such till September 15, 1954.
The appointment was temporary and his services were liable to be terminated on one month 's notice on either side.
He was posted after the date of his appointment in the Textile Commissioner 's office at Ahmedabad and continued to work there 193 till February 1954.
He was transferred to Bombay in February 1954 and was informed in August 1954 that his services would be terminated from September 15, 1954.
No cause was assigned for the termination of his services and no opportunity was given to him of showing cause against the action taken against him.
He therefore brought a suit in the City Civil Court at Bombay, and his contention was that his services had been terminated unjustifiably and maliciously as the Regional Director of Production in the Textile Commissioner 's office at Ahmedabad was against him.
Because of this on December 29, 1953, the appellant was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action should not be taken against him.
The appellant went on to state in the plaint that certain enquiries were held against him behind his back but the matter was not pursued and he was transferred to Bombay in February 1954.
While he was at Bombay he received the notice terminating his services.
He claimed that he was a quasi permanent employee under the Central Civil Services (Temporary Service) Rules, 1949, (hereinafter referred to as the Rules) and no action under r. 5 of the Rules could be taken against him.
He was further entitled to the protection of article 311 of the Constitution and as his services were terminated without complying with that provision the order was bad and liable to be set aside.
It was further contended that if r. 5 applied to him, it was bad inasmuch as it was hit by article 16 of the Constitution and in any case the order passed against him was bad as it was discriminatory.
The appellant therefore prayed that the order of August 13, 1954 by which his services were terminated be declared illegal and inoperative and he be declared a quasi permanent employee and reinstated in service.
There was also a claim for arrears of salary and costs of the suit and such other consequential reliefs as the court might deem fit to give.
The suit was opposed by the Union of India and its main defence was that the appellant was not a quasi permanent employee and that r. 5 of the Rules I SCI/64 13 194 applied to him and that action was properly taken under ' that rule when terminating the appellant 's services by order dated August 13, 1954.
It was also contended that r. 5 was perfectly valid and that there was no discrimination practised against the appellant when his services were terminated.
It was admitted that the memo.
dated December 29, 1953 was issued to the appellant and he was directed to submit his explanation in respect of the irregularities mentioned therein to the Under Secretary, Government of India, New Delhi and to state why disciplinary action should not be taken against him.
It was also admitted that from December 1953 onwards some department inquiry was conducted against the appellant but it was averted that the said departmental inquiry was not pursued as the evidence against him was not considered to be conclusive.
But as the appellant 's work was not found satisfactory, he was transferred to Bombay in February 1954 to give him a chance of improvement.
As his work and conduct were ultimately found to be unsatisfactory, his employment was terminated under r. 5 of the Rules as he was a temporary employee.
On these pleadings three main questions arose for decision before the trial court, namely, (i) whether the appellant was a quasi permanent employee and r. 5 of the Rules did not apply, to him (ii) whether r. 5 was invalid as it was hit by article 16 of the Constitution and in any case whether the action taken against the appellant was discriminatory, and therefore hit by article 16 of the Constitution, and (iii) even if the appellant was a temporary government servant, whether he was entitled to the protection of article 311(2) of the Constitution in the circumstances of this case.
The trial court held on all these points against the appellant and dismissed the stilt.
The appellant then went in appeal to the High Court.
The High Court agreed with the trial court and dismissed the appeal.
The appellant then applied for a certificate to appeal to this Court, which was granted; and that is how the matter has come up before us.
195 The first question that fails for consideration is whether the appellant was a quasi permanent employee and r. 5 did not apply to him.
If the appellant is held to be a quasi permanent employee, he will be entitled to the protection of article 311(2) and as admittedly the provisions of article 311(2) were not complied with in the present case, his suit would have to be decreed and no further question would arise for decision.
Rule 3 of the Rules, which falls for consideration in this connection, is as follows: "A Government servant shall be deemed to be in quasi permanent service: (i) if he has been in continuous Government service for more than three years; (ii) if the appointing authority, being satisfied as to his suitability in respect of age, qualifications, work and character, for employment in a quasi permanent capacity has issued a declaration to that effect, in accordance with such instructions as the Governor General may issue from time to time.
" The contention on behalf of the appellant is that as there is no conjunction "and" between the two sub clauses of r. 3, a Government servant must be deemed to be quasi permanent if he complies with either of the two sub clauses.
It is urged that a temporary government servant will become quasi permanent if he has been in continuous government service for more than three years or if a declaration is made in his favour as required by sub cl.
The appellant thus reads the word "or" between the two sub clauses.
On the other hand, the respondent contends that looking at the scheme of the Rules the word "and" should be implied between the two sub clauses and that both the clauses must be fulfilled before a Government servant can be deemed to be in quasi permanent service.
In this connection our attention was drawn to two cases of this Court in which this rule was mentioned.
In Parshotam Lal Dhingra vs Union of India,(1) this Court, when referring to r. 3 at p. 858, used (1) [1958] S.C.R. 196 the conjunction "or" between the two sub clauses.
Learned counsel for the appellant relies on this to show that we should read the word "or" between the two sub clauses.
We are however of opinion that this Court was not specifically dealing with the interpretation of r. 3 in that case and what has been said there about r. 3 was merely for purposes of illustration.
The other case of this Court to which reference has been made is K.S. Srinivasan vs Union of India.(1) There while quoting r. 3 at p. 1307, this Court used the word "and" between the two subclauses.
That is probably due to the fact that the brochure on "Central Civil Services (Temporary Services) Rules 1949" printed by the General Manager, Government of India Press, New Delhi, 1959, contains the word "and" between the two sub clauses in r. 3.
That also in our opinion is not conclusive in favour of the respondent, because it is not disputed before us that in the Government gazette where the Rules were first published, neither the word "and" nor the word "or" appears between the two sub clauses of r. 3.
This aspect of the matter was considered by the Bombay High Court in B.M. Pandit vs Union of India(2) where the learned Judges pointed out at p. 48 that they found from the copy of the gazette of the Government of India in which these Rules were first published that neither the word "and" nor the word "or" appeared between the two subclauses and this position is accepted on behalf of the respondent before us.
The question therefore arises whether we have to read the two sub clauses conjunctively or disjunctively.
We may add that the Bombay High Court ' in the case mentioned above read the two sub clauses conjunctively and we are of opinion that view is correct.
The object of these Rules obviously was to provide for some security of tenure for a large number of temporary government servants who had to be employed in view of World War II and also to provide for former employees of the Governments of Sind, the North West Frontier Province and Baluchistan (1) ; (2) A.I.R. 1962 Bom.
45. 197 who had come to India on account of the Partition.
This protection was afforded to temporary government servants and the government servants of the other type by the device of creating quasi permanent service.
Rule 3 provided in what circumstances a government servant shall 'be deemed to be quasi permanent.
Quasi permanent service is defined in r. 2(2) as meaning "temporary service commencing from the date on which a declaration issued under r. 3 takes effect and consists of periods of duty and leave (other than extraordinary leave) after that date.
" R, de 3 therefore must be read with r. 2(b) which defines "quasi permanent service".
Under r. 2(b), quasi permanent service begins from the date on which a declaration is issued under r. 3.
It follows therefore that before a government servant can be deemed to be in quasi permanent service a declaration must be issued under the second sub clause of r. 3, for that is the sine quo non for the commencement of quasi permanent service.
Without such a declaration quasi permanent service cannot begin.
If therefore the appellant 's contention were to be accepted and a temporary government servant can be deemed to be in quasi permanent service, if only the first sub clause has been fulfilled, viz., that he has been in continuous government service for more than three years, there will be complete irreconcilability between r. 2(b) and the first clause of r. 3.
Therefore, reading these two rules together the conclusion is inevitable that we must read the two sub clauses conjunctively and hold that both conditions must be fulfilled before a Government servant can be deemed to be in quasi permanent service, namely, (i) that he has been in continuous government service for more than three years, and (ii) that the appointing authority after satisfying itself as to suitability in various respects for employment in quasi permanent capacity has issued a declaration to that effect.
It is however urged that the definitions in r. 2 have to be read subject to there being nothing repugnant in the subject or context and it is contended that in the context of r. 3 the two sub clauses must be read disjunctively.
198 We are of opinion that there is no force in this argument, and as a matter of fact the context of r. 3 itself requires that rule must be read in harmony with the definition of "quasi permanent service" in r. 2(b), for it could not possibly be the intention of the rule making authority to create disharmony between the definition in r. 2(b) and the provision in r. 3.
The contention on behalf of the appellants that the two sub clauses are independent and have to be read disjunctively must be rejected and it must be held that both the conditions in r. 3 must be satisfied before a government servant can be deemed to be in quasi permanent service.
This will in our opinion also be clear from the scheme of the Rules following r. 3.
Rule 4 provides that "a declaration issued under r. 3 shall specify the particular post or the particular grade of posts within a cadre in respect of which it is issued, and the date from which it takes effect.
" This rule is clearly meant to apply to all quasi permanent employees and shows that no government servant can be deemed to be in quasi permanent service until a declaration has been issued.
Rule 6 provides that "the service of a Government servant in quasi permanent service shall be liable to termination in the same circumstances and in the same manner as a government servant in permanent service.
" Now under the definition of r. 2(b), quasi permanent service begins with a declaration issued under sub cl.
(1)of r. 3.
Therefore the protection of r. 6 can only be given to a quasi permanent employee after a declaration has been made.
This again shows that a declaration is necessary before a Government servant can claim to be in quasi.permanent service.
Rule 7 provides that a government servant in respect of whom the declaration has been issued under r. 3, shall be eligible for permanent appointment on the occurrence of a vacancy in the specified posts which may be reserved for being filled from among persons in quasi permanent service.
This again shows that a quasi permanent employee can become eligible for permanent appointment only when a declaration has been issued under 199 r. 3.
Again r. 8 provides that a government servant in quasi permanent service shall as from the date on which his service is declared to be quasi permanent be entitled to the same conditions of service in respect of leave, allowances and disciplinary matters as a government servant in permanent service holding the specified post.
Here again the benefit of r. 8 can only be availed of by a quasi permanent government servant in whose favour a declaration has been made.
Then r. 9 provides that a government servant in quasi permanent service shall be eligible for a gratuity under certain circumstances.
This gratuity will be at the rate of half a month 's pay for each completed year of quasi permanent service, such gratuity being payable on the basis of the pay admissible to such government servant in respect of the specified post on the last day of his service.
This again contemplates a declaration before the benefit of r. 9 can be claimed by a quasi permanent employee.
Rule 10 provides that where a government servant in quasi permanent service is appointed substantively to a permanent pensionable post, the entire period of quasi permanent service rendered by him shall be deemed to be qualifying service for the grant of gratuity and pension.
Now under r. 2(b) quasi permanent service only commences after the declaration and therefore unless a declaration is made, the benefit of r. 10 cannot be taken by a quasi permanent employee.
The scheme of the rules therefore clearly shows that a declaration under r. 3 is necessary before a temporary government servant can claim to be a quasi permanent employee.
Otherwise if the two sub clauses of r. 3 were to be read disjunctively the result would be that a person may become a quasi permanent employee under sub cl.
(1) but will get none of the advantages mentioned above.
We are therefore satisfied that the scheme of the Rules and the harmony that is essential between r. 2(b) defining "quasi permanent service" and r. 3 laying down how a government servant can be deemed to be in quasi permanent service require that the two sub clauses should be read conjunctively and that two conditions 200 are necessary before a government servant can be deemed to be in quasi permanent service, namely, (i) continuous service for more than three years, and (ii) declaration as required by sub cl.
(ii)of r. 3.
It is not in dispute that though the appellant had been in service for more than three years by 1954, no declaration as required by sub cl.
(ii) of r. 3 has ever been made in his case.
He cannot therefore claim to be in quasi permanent service.
It follows therefore that he cannot claim the benefit of r. 6, which lays down that the services of a government servant in quasi permanent service shall be liable to termination in the same circumstances and in the same manner as government servants in permanent service.
If he could claim the benefit of r. 6, he would have been certainly entitled to the protection of article 311.
As he is not entitled to the benefit of r. 6, he cannot claim the benefit of article 311 (9.2) on the ground that he must be deemed to be in quasi permanent service.
The appellant therefore must be held to be still in temporary service when his services were dispensed with in August 1954.
The rule that applies to a temporary government servant is r. 5 which lays down that "(a) the service of a temporary Government servant who is not in quasi permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority, or by the appointing authority to the Government servant.
(b) The period of such notice shall be one month, unless otherwise agreed to by the Government and by the Government servant; Provided that the service of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances, at the same rates at which he was drawing them immediately before the termination of his services, for the period of the notice or, as the case may be, for the period by which such notice falls short of one month or any agreed longer period." 201 In short r. 5 gives power to the Government to terminate the services of a temporary government servant by giving him one month 's notice or on payment of one month 's pay in lieu of notice or such shorter or longer notice or payment in lieu thereof as may be agreed to between the Government and the employee concerned.
This rule is being attacked on the ground that it is hit by article 16, which provides that "there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State".
We have not been able to understand how this rule can possibly be hit by article 16, which provides for equality of opportunity.
These Rules show that there are two classes of employees namely, (i) permanent employees, and(ii) temporary employees, the latter being divided into two sub clauses (a) quasi permanent, and (b) temporary.
It is well recognised that the Government may have to employ temporary servants to satisfy the needs of a particular contingency and such employment would be perfectly legitimate.
There can also be no doubt, if such a class of temporary servants could be recruited that there would be nothing discriminatory or violative of equal opportunity if the conditions of service of such servants are different in some respects from those of permanent employees.
Further we see no denial of equal opportunity if out of the class of temporary employees some are made quasi permanent depending on length of service and their suitability in all other respects for permanent employment eventually and thus assimilated to permanent employees.
It has been urged on behalf of the respondent that article 16 in any case will not apply to matters relating to termination of service.
We do not think it necessary for present purposes to decide whether article 16 would apply to rules relating to termination of service.
We shall assume for the purposes of this appeal that article 16 will apply even in the case of rules relating to termination of service.
But we fail to see how the rule which applies to one class of government servants in the matter of termination but does not apply to the other two classes can be said to violate 202 equality of opportunity provided in article 16.
The classification of government servants into these classes is reasonable and differences in the matter of termination of service between these classes cannot be said to be discriminatory in the circumstances.
In particular the very fact that the service of a government servant is purely temporary makes him a class apart from those in permanent service and such government servant cannot necessarily claim all the advantages which a permanent servant has in the matter of security of service.
We are therefore of opinion that considering the nature of the employment of a temporary government servant, a provision like that in r. 5 in respect of termination of service is a. reasonable provision which cannot be said to deny equality of opportunity provided in article 16.
The attack therefore on r. 5 on the ground that it is hit by article 16 of the Constitution must fail.
It is next urged that even if r. 5 is good, the order by which the appellant 's services were dispensed with was bad, because it was discriminatory.
In this Connection reference was made in the plaint to a number of Assistant Directors whose services were not dispensed with even though they were junior to the appellant and did not have as good qualifica tions as he had.
We are of opinion that there is no force in this contention.
This is not a case where services of a temporary employee are being retrenched because of the abolition of a post.
In such a case a question may arise as to who should be retrenched when one out of several temporary posts is being retrenched in an office.
In those circumstances, qualifications and length of service of those holding similar temporary posts may be relevant in consider ing whether the retrenchment of a particular employee was as a result of discrimination.
The present however is a case where the appellant 's services were terminated because his work was found to be unsatisfactory.
We shall deal with the question whether termination in this case is liable to be set aside on the ground that article 311 (2) was not complied with later; but where termination of the service of a temporary 203 government servant takes place on the ground.
that his conduct is not satisfactory there can in our opinion be no question of any discrimination.
It would be absurd to say that if the service of one temporary servant is terminated on the ground of unsatisfactory conduct the services of all similar employees must also be terminated along with him, irrespective of what their conduct is.
Therefore even though some of those mentioned in the plaint by the appellant were junior to him and did not have as good qualifications as he had and were retained in service, it does not follow that the action taken against the appellant terminating his services was discriminatory for that action was taken on the basis of his unsatisfactory conduct.
A question of discrimination may arise in a case of retrenchment on account of abolition of one of several temporary posts of the same kind in one office but can in our opinion never arise in the case of dispensing with the services of a particular temporary employee on account of his conduct being unsatisfactory.
We therefore reject the contention that the appellant was denied the protection of article 16 and was treated in a discriminatory manner.
We now come to the last question whether the appellant Was entitled to the protection of article 311(2) of the Constitution, even though he was a temporary government servant.
It is well settled that temporary servants are also entitled to the protection of article 311(2) in the same manner as permanent government servants, if the government takes action against them by meting out one of the three punishments i.e. dismissal, removal or reduction in rank: (see Parshotam Lal Dhingra vs Union of India(").
But this protection is only available where discharge, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise.
It is also not disputed that the mere use of expressions like "terminate" or "discharge" is not conclusive and in spite of the use of such innocuous expressions, the court has to apply the two tests mentioned in Parshotam Lal Dhingra 's case(1), namely (1) whether ( ) ; 204 the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the servant had been punished.
Further even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant.
It is on these principles which have been laid down in Parshotam Lal Dhingra 's case() that we have to decide whether the appellant was entitled to the protection of article 311(2) in this case.
Before however we consider the facts of this case, we should like to make certain general observations in connection with disciplinary proceedings taken against public servants.
It is well known that government does not terminate the services of a public servant, be he even a temporary servant, without reason; nor is it usual for government to reduce a public servant in rank without reason even though he may be holding the higher rank only temporarily.
One reason for terminating the services of a temporary servant may be that the post that he is holding comes to an end.
In that case there is nothing further to be said and his services terminate when the post comes to an end.
Similarly a government servant temporarily officiating in a higher rank may have to be reverted to his substantive post where the incumbent of the higher post comes back to duty or where the higher post created for a temporary period comes to an end.
But besides the above, the government may find it necessary to terminate the services of a temporary servant if it is not satisfied with his conduct or his suitability for the job and/or his work.
The same may apply to the reversion of a public servant from a higher post to a lower post where the post is held as a temporary measure.
This dissatisfaction with the work and,/or conduct of a temporary servant (1) ; 205 may arise on complaint against him.
In such cases two courses are open to government.
It may decide to dispense with the services of the servant or revert him to his substantive post without any action being taken to punish him for his bad work and/or conduct.
Or the Government may decide to punish such a servant for his bad work or misconduct, in which case even though the servant may be temporary he will have the protection of article 311(2).
But even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may be called a preliminary enquiry is first held in connection with the alleged misconduct or unsatisfactory work.
In this preliminary enquiry the explanation of the government servant may be taken and documentary and even oral evidence may be considered.
It is usual when such a preliminary enquiry makes out a prima facie case against the servant concerned that charges are then framed against him and he is asked to show cause why disciplinary action be not taken against him.
An enquiry officer (who may be himself in the case where the appointing authority is other than the Government) is appointed who holds enquiry into the charges communicated to the servant concerned after taking his explanation and this inquiry is held in accordance with the principles of natural justice.
This is what is known as a formal departmental enquiry into the conduct of a public servant.
In this enquiry evidence both documentary and oral may be led against the public servant concerned and he has a right to cross examine the witnesses tendered against him.
He has also the right to give documentary and oral evidence in his defence, if he thinks necessary to do so.
After the enquiry is over, the enquiry officer makes a report to the Government or the authority having power to take action against the servant concerned.
The government or the authority makes up its mind on the enquiry report as to whether the charges have been proved or not and if it holds that some or all the charges have been proved, it determines tentatively the punishment to be inflicted 206 on the public servant concerned.
It then communicates a copy of the enquiry officer 'sreport and its own conclusion thereon and asks himto show cause why the tentative punishment decidedupon be not inflicted upon him.
This procedure is required by article 311(2) of the Constitution in the case of the three major punishments, i.e., dismissal, or removal or reduction in rank.
The servant concerned has then an opportunity of showing cause by making a represen tation that the conclusions arrived at the departmental enquiry are incorrect and in any case the punishment proposed to be inflicted is too harsh.
Generally therefore a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out, and it is very necessary that the two should not be confused.
Even where government does not intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually held to satisfy government that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post, for as we have said already government does not usually take action of this kind without any reason.
Therefore when a preliminary enquiry of this nature is held in thecase of temporary employee or a governmentservant holding a higher rank temporarily it mustnot be confused with the regular departmentalenquiry (which usually follows such a preliminaryenquiry) when the government decides to frame charges and get a departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the government servant.
Therefore, so far as the preliminary enquiry is concerned there is no question of its being governed by article 311(2) for that enquiry is really for the satisfaction of government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of a temporary government servant or a servant holding higher rank temporary to which he has no right.
In short 207 a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under article 311 for inflicting one of the three major punishments mentioned therein.
Such a preliminary enquiry may even be held ex parte, for it is merely for the satisfaction of government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry.
But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the Government, and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of article 311 and all the rights that protection implies as already indicated above.
There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in article 311 that the government servant is entitled to the protection of that Article.
That is why this Court emphasised in ParshotamLal Dhingra 's case(1) and in Shyamlal vs The Stateof Uttar Pradesh(2) that the motive or the inducing factor which influences the government to take action under the terms of the contract of employment or the specific service rule is irrelevant.
In Shyamlal 's case(2) what happened was that the government servant concerned was called upon to explain certain matters which cast an imputation upon him; but later it was made perfectly clear to him by the government that it was not holding any formal departmental enquiry against him with a view to inflicting any of the three major punishments, although the government desired to give him an opportunity to show cause why he should not be compul (1) (1958] 1 S.C.R. 828 (2) 208 sorily retired, and after considering his explanation he was compulsorily retired under the relevant service rule.
It was held in that case that this did not amount to punishment within the meaning of article 311(2), even though there was some imputation at an earlier stage and even though the servant concerned was asked to explain why he should not be compulsorily retired.
As we have said already it is not usual for government to take action against a public servant without rhyme or reason and that is why in the case of temporary servants or servants holding higher ranks to which they have no right some kind of preliminary enquiry is usually held before the government decides to dispense with their set vice or revert them to their substantive posts.
The mere fact that some kind of preliminary enquiry is held against a temporary servant and following that enquiry the services are dispensed with in accordance with the contract or the specific service rule (e.g. r. 5 in this case) would not mean that the termination of service amounted to infliction of punishment of dismissal or removal within the meaning of article 311(2).
Whether such termination would amount to dismissal or removal within the meaning of article 311(2) would depend upon facts of each case and the action taken by government which finally leads to the termination of service.
Let us now turn to the facts of this case.
On December 29, 1953, a memorandum was given to the appellant under the signature of the Under Secretary to the Government of India.
By that memorandum he was informed about four matters and his explanation was called in that connection.
The first matter referred to his punctuality in attending office and his absenting himself from duty without prior intimation and instances in that respect were brought to his notice.
The second matter was with respect to irregular claims for mileage allowance in respect of his visits to mills some of which were never made.
Instances of these were also brought to his notice.
The third matter related to a certain visit to a certain mill on a certain date which was 209 never undertaken.
The fourth matter was general relating to his work and conduct being not satisfactory and his not attaching due importance to the performance of his duties in accordance with the instructions of the Regional Director.
He was required to submit his explanation by January 6, 1954 and also asked to state why disciplinary action should not be taken against him.
The contention on behalf of the appellant is that this memorandum really amounted to a chargesheet against the appellant and he was asked to give an explanation thereto and also to state why disciplinary action should not be taken against him.
Stress is laid on the last sentence of the memorandum where the appellant was asked why disciplinary action should not be taken against him.
It may be conceded that the way in which the memorandum was drafted and the fact that in the last sentence he was asked to state why disciplinary action should not be taken against him might give an impression that the intention was to hold a formal departmental enquiry against him with a view to punishing him.
But though this may appear to be so, what is important to see is what actually happened after this memo randum for the courts are not to go by the particular name given by a party to a certain proceeding but are concerned with the spirit and substance of it in the light of what preceded and succeeded it.
It is true that in the written statement of the respondent it is stated that from December 1953 onwards a departmental enquiry was being conducted against the appellant, though the written statement went on to say that departmental enquiry was not pursued as the evidence was not considered to be conclusive.
In actual fact however it is not even the case of the appellant that any enquiry officer was appointed to hold what we have called a formal departmental enquiry in which evidence was tendered from both sides in the presence of the appellant.
This is clear from para 8 of the plaint in which it is said that some enquiries appeared to have been held after the memorandum of December 1953 but were 210 not pursued further.
It is however clear that no formal departmental enquiry as contemplated under article 311(2) read with the relevant Central Services Rules was ever held after the notice of December 29, 1953, as otherwise the appellant would have taken part in such an enquiry and would have been entitled to cross examine witnesses produced against him and would also have been entitled to lead evidence.
It seems therefore clear that though this memorandum was issued and the appellant was asked therein to state why disciplinary action should not be taken against him, no departmental enquiry followed that memorandum and the matter was dropped.
That is further borne out by the fact that the appellant was transferred from Ahmedabad to Bombay in February 1954, which would be most unlikely if a departmental enquiry was going on against him in Ahmedabad.
The respondent 's case in this connection is that it gave up the departmental enquiry even though it was contemplated and transferred the appellant to Bombay in order to give him a chance of improvement.
The appellant worked in Bombay for over six months and thereafter the Government finally decided to terminate his services under r. 5 as his work and conduct were found unsatisfactory even after his transfer to Bombay.
On these facts there can in our opinion be no doubt that even if a departmental enquiry was contemplated in December 1953 it was not pursued and no punitive action was taken against him on the basis of the memorandum issued to him on December 29, 1953; what appears to have happened is that after the appellant was transferred to Bombay where he worked for six months more, the government came to the conclusion that his work and conduct were not satisfactory and therefore decided to terminate his services under r. 5.
We cannot accept the proposition that once government issues a memorandum like that issued in this case on December 29, 1953, but later decides not to hold a departmental enquiry for taking punitive action, it can never thereafter proceed to take action against a temporary government servant in the terms of r. 5, 211 even though it is satisfied otherwise that his conduct and work are unsatisfactory.
The circumstances in this case are in our opinion very similar to the facts in Shyamlal 's case("), the difference being that in that case he was compulsorily retired and in this case the appellant 's services have been terminated.
In Shyamlal 's case(1) also at one stage, the government made imputation against his conduct but later withdrew them and did not follow up the matter by holding a departmental enquiry.
This is exactly what happened in the present case and it was more than six months after that the appellant who had in the meantime been transferred to Bombay was discharged in the terms of r. 5 because his work and conduct were found unsatisfactory.
The order terminating his services makes no imputation whatsoever against him and in the circumstances it cannot be said that the termination of his service is visited with any evil consequences as explained in Parshotam Lal Dhingra 's case(2).
We are therefore of opinion that on the facts of this case article 311(2) has no application and the appellant was not entitled to the protection of that Article before his services were terminated under r. 5, for the termination of service here does not amount to infliction of the penalty of dismissal or removal.
It remains now to consider certain cases on which reliance was placed on either side.
Strong reliance has been placed on behalf of the appellant on Madan Gopal vs The State of Punjab(3).
In that case Madan Gopal was a temporary government servant.
A charge sheet was served on him on February 5, 1955 and he was charged with having taken bribes in two cases.
He was also asked to explain why disciplinary action should not be taken against him.
He was further asked to state if he wanted to be heard in person and also to put forth any defence.
It will be clear that charges were served upon Madan Gopal (1) ; (2) ; (3) [1963]1 3 S.C.R. 716. 212 in that case while in the present case no charges were ever served on the appellant and the communication of December 29, 1953 was headed as a memorandum.
Further the charge sheet in Madan Gopal 's case(,) besides asking him to state why disciplinary action should not be taken against him also asked him to state in his reply if he wanted to be heard in person and wanted to put forward any defence, which clearly showed that a departmental enquiry was going to be held particularly when the charges were given by the Settlement Officer who had apparently been appointed the enquiry officer for the purpose.
Further in Madan Gopal 's case(,) an enquiry was held and a report was submitted by the enquiry officer to the Deputy Commissioner.
The enquiry officer found Madan Gopal guilty of the charges and recommended that he should be removed from service immediately.
On the basis of this report an order was passed by the Deputy Commissioner which stated in so many words that it had been established that bribes had been taken by Madan Gopal and that he accepted the report of the Settlement Officer.
The Deputy Commissioner then went on to order that the services of Madan Gopal were terminated on payment of one month 's pay in lieu of notice.
Obviously in that case a departmental enquiry was held by the enquiry officer, a report was made to the Deputy Commissioner who was apparently the authority to dismiss or remove Madan Gopal and he passed the order terminating his services on the basis of the report, though he did not use the word "dismiss" or "remove" in his order.
In those circumstances this Court held in conformity with what had been said in Parshotam Lal Dhingra 's case(2) that the mere use of the word "termination" would not conclude the matter and as the facts showed as they did in Madan Gopal 's case() that the order was one of dismissal or removal and was passed as a punishment after inquiry, article 311(2) should have been complied with.
The facts of that case in our opinion are very different from the facts in the present case.
(1) [1963] 3 S.C.R. 716.
(2) ; 213 As we have already pointed out no departmental enquiry was really held after the memorandum of December 29, 1953 in this case and no enquiry officer was appointed and no report was made by any enquiry officer.
Whatever might have been the intention behind the memorandum dated December 29, 1953, the matter was not pursued and the departmental enquiry if it was ever intended to be held was dropped.
The appellant thereafter was transferred to Bombay to give him chance of improvement and it was only six months later when it was found that his work and conduct were still unsatisfactory that government took action under r. 5 and dispensed with his services.
On the facts of the present case therefore it cannot be said that the order of dispensing with the services of the appellant which was passed in August 1954 was an order punishing the appellant by imposing upon him the penalty of removal or dismissal.
The next case is The State of Bihar vs Gopi Kishore Prasad(1).
That was a case of a probationer and this Court laid down five propositions therein.
It is the third proposition therein on which strong reliance has been placed on behalf of the appellant.
It is in these terms : "But, if instead of terminating such a person 's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career.
In such a case he is entitled to the protection of article 311(2) of the Constitution.
" it is urged on behalf of the appellant that this proposition means that as soon as any kind of enquiry is held against a probationer and the same it is said will apply to a temporary employee as the two (1) A.I.R. 1960 S.C. 689.
214 stand more or less on the same footing the protection of article 311(2) would be available.
We are of opinion that this is reading much more in the proposition then was ever intended by this Court.
In that case the Government after some kind of enquiry said in the order terminating the services of the servant concerned that confidential enquiries showed that he had the reputation of being a corrupt officer and that there was ample material to show that the report about his resorting to corrupt practices was justified.
The order further said that his work was wholly unsatisfactory and in consideration of those matters, it was provisionally decided to terminate the probation and the government servant was asked to show cause why he should not be discharged.
His explanation was then considered and the Government finally decided to discharge him.
The facts of that case as they appeared from the copy of the government decision showed that the government was actually proceeding on the basis that article 311(2) was applicable in that case and that is why some enquiries were held and a provisional conclusion to terminate the services of the officer concerned was arrived at and he was asked to show cause against that.
In those circumstances this Court held that as government had purported to take action under article 311, the action was bad as the protection envisaged by that Article was not afforded to the servant concerned.
The third proposition therefore in that case does not in our opinion lay down that as soon as any kind of enquiry is held into the conduct of a probationer or a temporary servant he is immediately entitled to the protection of article 311.
All that the third proposition lays down is that if the govern ment chooses to hold an enquiry purporting to act under article 311 as was the case in that case, it must afford to the government servant the protection which that Article envisages.
Gopi Kishore Prasad 's case(1) was considered by this Court in a later case in the State of Orissa (1)A.I.R, 215 vs Ram Narayan Das,(1) which was also a case of a probationer.
In Ram Narayan Das 's case,(1) the order was to the effect that the government servant was discharged from service for unsatisfactory work and conduct from the date on which the order was served on him.
This Court in Ram Narayan Das 's case(1) referred to the rules, which provided that " where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the employment" and pointed out that action in accordance with the rules would not be hit by article 31 1.
Gopi Kishore Prasad 's case(1) was distinguished in that case and it was pointed out that the third proposition in Gopi Kishore Prasad 's case(2) referred to "an enquiry into allegations of misconduct or inefficiency With a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed," which means that where the Government purports to hold an inquiry under article 311 read with the Rules in order to punish an officer, it must afford him the protection provided therein.
The third proposition therefore in Gopi Kishore Prasad 's case(2) Must be read in the context of that case and cannot apply to a case where the government holds what we have called a preliminary enquiry to find out whether a temporary servant should be discharged or not in accordance with his contract or a specific service rule in view of his conduct.
The third proposition must be restricted only to those cases whether of temporary government servants or others, where government purports to act under article 311(2) but ends up with a mere order of termination.
In such a case the form of the order is immaterial and the termination of service may amount to dismissal or (1) ; (2) A.I.R. 1960 S.C. 689.
216 removal.
The same view has been taken in Jagadish Mitter vs Union of India(1) We are therefore of opinion that on the facts of this case it cannot be said that the order by which the appellants, services were terminated under r. 5 was an order inflicting the punishment of dismissal or removal to which article 311(2) applied.
It was in our opinion an order which was Justified under r. 5 of the rules and the appellant was not entitled to the protection of article 311(2) in the circumstances.
The appeal therefore fails and is hereby dismissed.
In the circumstances we pass no order as to costs.
Appeal dismissed.
| The appellant and nine others were tried before the Sessions Judge for offences of rioting and being members of an unlaw ful assembly and causing in furtherance of their common object death of one person and serious injuries to four others.
The appellant was also charged for the substantive offence of causing the death by gun shot injuries.
All the accused persons were acquitted at the trial.
In appeal against acquittal by the State, the High Court set aside the acquittal of the appellant and sentenced him to imprisonment for life under section 302 Indian Penal Code and confirmed the order in respect of the rest.
The appellant 's main con tention in this Court was that under section 161 of the Code of Criminal Procedure it was obligatory upon an investigating officer to record the statements of witnesses examined by him and if those statements were not made available to the accused at the trial, a valuable right was lost to the accused, and the trial must on that account alone be regarded as vitiated.
34 2 section C. India/64 522 Held : (i) Where the circumstances are such that the court may reasonable infer that prejudice has resulted to the accused from the failure to supply the statements recorded under section 161, the court would be justified in directing that the convict on be set aside and a proper case to direct that the defect be rectified in such manner as the circumstances, may warrant.
It is only where the court is satisfied, having regard to the manner in which the case has been conducted and the attitude adopted by the accused in relation to the defect, that no prejudice has resulted to the accused that the court would, notwithstanding the breach of the statutory provisions, be justified in maintaining the conviction.
On the facts of the present case no prejudice was caused to the accused and the plea of prejudice was neither raised in the High Court, nor any substantial argument in support of the same was advanced in this Court.
Narayan Rao vs State of Andhra Pradesh, A. I. R. 1957 section C. 737 and Pulukuri Kotyya vs Emperor, L. R. 74 I. A. 65, relied on.
Baliram vs Emperor, I.L.R. , Maganlal vs Em peror, I.L.R. and Maroti Mahagoo vs Emperor, I.L.R. , disapproved.
(ii) In the present case the Sessions Judge did not found his conclusion upon the demeanour of the witnesses and the High Court rightly observed that the presence of the four injured persons at the scene of offence was assured by the evidence of injuries, and must be regarded as established beyond reasonable doubt.
Sheo Swarup vs King Emperor, L. R. 61 I. A. 398, referred to.
|
ON: Civil Appeal Nos.
2406/77 and 356/ 78.
Appeals by Special Leave from the Judgment and order dated 1 9 77 of the Bombay High Court in SCA No. l/77.
A. P. Deshpande and M. section Gupta for the Appellant in CA No. 2406/77 and Respondent in CA No. 356/78.
H.W. Dhabe and A. G. Ratnaparkhi for the Appellant in CA No. 356/78 and for the Respondent in CA No. 2406/77.
The following Judgments of the Court were delivered: KRISHNA IYER, J. A tricky issue of statutory construction, beset with semantic ambiguity and pervasive possibility, and a prickly provision which, if interpreted literally, leads to absurdity and if construed liberally, leads to rationality, confront the court in these dual appeals by special leave spinning around the eligibility for candidature of an employee under the Life Insurance Corporation and the declaration of his rival, 1st respondent, as duly returned in a City Corporation election A tremendous trifle in one sense, since almost the whole term has run out.
And yet, divergent decisions of Division Benches of Madras and Calcutta and a recent unanimous ruling of a Bench of five judges of Punjab and Haryana together with the Bombay High Court 's decision under appeal have made the precedential erudition sufficiently conflicting for this Court to intervene and declare the law, guided by the legislative text but informed by the imperatives of our constitutional order.
The sister appeal filed by the respondent relates to that part of the judgment of the High Court reverses the declaration grated by the trial judge that he be deemed the returned candidate.
1085 This little preface leads us on to a brief narration of the admitted facts.
The appellant (in C.A. 2406 of 1977) was d candidate for election to the Corporation of the City of Nagpur from Ward 34 and his nearest rival was the 1st respondent, although there were other candidates also.
Judged by the plurality cf votes, the appellant secured a large lead over his opponents and was declared elected.
The and of the poll process is often the beginning of the forensic process at the instance of the defeated candidates with its protracted trial and appeals upon appeals, thus making elections doubly expensive and terribly traumatic.
the habit of accepting defeat with grace, save in gross cases, is a sign of country 's democratic maturity.
Anyway, in the present case, when the appellant was declared the returned candidate the respondent.
challenged the verdict in court on a simple legal ground of ineligibility of the former who was, during the election, a development officer under the Life Insurance Corporation (for short, the LIC) .
The lethal legal infirmity, pressed with success, by the respondent was that under Regulation 25 of the Life Insurance Corporation of India (Staff) Regulations, 1960 (briefly, the Regulations framed by the LIC, all its employees were under an embargo on taking part in municipal elections, save with the permission of the Chairman.
Therefore, the appellant who was such an employee and had not sought or got the Chairman 's permission laboured under a legal ineligibility as contemplated in l, ' ' section 15(g) of the City of Nagpur Corporation Act, 1948 (hereinafter referred to as the Act '.
Both the Courts below shot down the poll verdict with this statutory projectile and the aggrieved appellant urges before us the futility of this invalidatory argument.
Section 15(g) is seemingly simple and reads: 15.
No person shall be eligible for election as a Councillor if he xx xx xx (g) is under the provisions of any law for the time being in force, ineligible to be a member of any local authority; G So, the search is for any provision of law rendering the returned candidate ineligible to be a member.
The fatal discovery of ineligibility made by the respondent consists in the incontestable fact that the appellant was at the relevant time an LIC employee bound by the Regulations, which have the force of Law? having been framed under section 49 of the LIC Act, 1956.
The concerned clause is Regulation 25(4) which reads thus: 1086 "25 (4) No employee shall canvass or otherwise interfere or use his influence, in connection with or take part in an election to any legislature or local authority.
Provided that xx xx xx (iii) the Chairman may permit an employee to offer himself as a candidate for election to a local authority and the employee so permitted shall not be deemed to have contravened the provisions of this regulation.
xx xx xx A complementary regulation arming the Management with power to take action for breach of this ban is found in Regulation 39 which states: 39(1).
Without prejudice to the provisions of other regulations, any one or more of the following penalties for good and sufficient reasons, and as hereinafter provided be imposed by the disciplinary authority specified in Schedule on an employee who commits a breach of regulations of the Corporation, or. " The crucial issue is whether this taboo in Regulation 25(4) spells electoral ineligibility or merely sets rules of conduct and discipline for employees, violation of which will be visited with punishment but does not spill over into the area of election law.
Two decisions, one of Calcutta Sarafatulla Sarkar vs Surja Kumar Mondal(1) and the other of Punjab & Haryana Uttam Singh vs section Kirpal Singh (Z) support the appellant 's position that mere rules regulating service discipline and conduct, even though they have the force of law, cannot operationally be expanded into an interdict on candidature or amount to ineligibility for standing for election.
Chakravarthi, C.J., speaking for a Bench of the Calcutta High Court upheld the stand (1) "it appears to me to be 'abundantly ' clear that in so far as the Government Servants ' Conduct Rules provide tor discipline and document (conduct?) and, in doing so, forbid conduct of certain varieties their aim is merely regulation of the conduct of Government servants, as such (l) A.I.R. 1955 Cal. 382.
(2) A. I. R. 1976 P. &.
H. 176.
1087 servants, and that aim is sought to be attained by prescribing certain rules of correct conduct and laying down penal ties for their breach.
If a Government servant disregards any of the Rules which bear upon discipline and conduct and conducts himself in a manner not approved by the Rules or forbidden by them, he may incur the penalties for which the Rules provide.
It cannot, however, be that any of his other rights as a citizen will be affected.
Taking the present case, if a Government servant violates the prohibition against offering himself as a candidate for election to one or another of the bodies mentioned in Rule 23, he May incur dismissal or such other penalty as the authorities may consider called for, but the breach of the conditions of service committed by him cannot disenfranchise or take away from him any of the rights which he has in the capacity of the holder of franchise.
While, therefore, a Government servant offering him ' self for election to one of the bodies mentioned in Rule 23, may bring upon himself disciplinary action, which may go as far as dismissal, the consequence cannot also be that his election will be invalid or.
that the validity of his election will be affected by the breach.
The disqualification imposed by Rule 23 is of the nature of a personal bar which can be overstepped only at the Government servant 's peril as regards his membership, of a service under the Government.
It is not and cannot be an absolute disqualification in the nature of ineligibility.
What the Rule enjoins is that a Government servant shall not take part in any election and that he shall also not take part in the form of offering himself as a candidate The prohibition is directed at personal conduct and not at rights owned by the Government servant concerned.
Illustrations of an absolute prohibition of the nature of a real disqualification or ineligibility will be found in Sections 63 E(l) and 80 B, Government of India Act 1915 19 and Article 102 and 1901 of the present Constitution which deal, in both cases with qualification for election, to the Central or the State Legislature In his view, the core purpose of Regulation 25(4) is not to clamp down disqualifications regarding elections but to lay down disciplinary forbiddance on conduct of Government servants qua 1088 government servants contravention of which would invite punishment.
If we may say so, this is a purpose oriented interpretation.
A Five Judge Bench of the Punjab & Haryana High Court adopted this reasoning in a situation akin to ours and repelled the further submission that the disqualification was founded on the policy that an employee of the Corporation, if he became a member of the Legislature or City Corporation would not be able to carry out his functions.
The court also dissented from a Division Bench decision of the Madras High Court which took a contrary view.
It is fair to notice the Madras ruling before we discuss the fundamentals and declare the law as we read it to be.
In the Madras case Narayanaswamy vs Krishnamurth,(1) which related to an Assembly seat) the court felt that the point was not free from difficulty but reached the conclusion that the Regulation made by the LIC was perhaps intended to ensure undivided attention upon their duties as such employees but it also operated as a disqualification.
The contention before the court was somewhat different.
The question posed was whether the concerned Regulation could be treated as law which fulfilled the requirements of article 191(1) (e) of the Constitution.
The major consideration of the court was as to whether a regulation to ensure proper performance of duties by the employees of the Corporation could also be treated as a law imposing disqualification.
Even so, making a liberal approach to the line of reasoning of the court we may consider the observation as striking a contrary note.
We do not examine, not having been invited to do so, whether Parliament or its delegate could enact a law relating to elections to local bodies, cl topic which falls within the State List.
We confine ourselves to the sole question debated at the Bar as to the ambit and limit, the import and interpretation of Regulation 25(4) of the LIC Regulations, vis a vis section IS(g) of the Act.
The Regulations have been framed under s.49 of the LIC Act and a conspectus of the various chapters convincingly brings home the purpose thereof.
All the Regulations and the Schedules exclusively devote themselves to defining the terms and conditions of service of the staff.
Regulation 25 comes within chapter III dealing with conduct and discipline of the employees.
Regulation 39 deals with penalties for misconduct and Regulation 40 deals with appeals.
The inference is irresistible that the sole and whole object of Regulation 25, read with Regulation 39, is to lay down a rule of conduct for the I .R. 1089 LIC employees.
Among the many things forbidden are, for instance, prohibition of acceptance of gifts or speculation in stocks and shares.
Obviously we cannot read Regulation 32 as invalidating a gift to an LIC employee under the law of gifts, or Regulation 33 as nullifying transfer of stocks and shares speculatively purchased by an LIC employee.
Likewise.
Regulation 25 while it does mandate that the employee shall not participate in an election to a local authority cannot be read as nullifying the election or disqualifying the candidate.
The contravention of the Regulation invites disciplinary action, which may range from censure to dismissal.
Section 15(g) relates to the realm of election law and eligibility Cr to be a member of a local authority.
Ineligibility must flow from a specific provision of law designed to deny eligibility or to lay down disqualification.
If a rule or conduct makes it undesirable, objectionable or punishable for an employe to participate in elections to a local authority it is a distortion, even an exaggeration out of proportion, of that provision to extract out of it a prohibition of a citizen`s franchise to be member in the shape of a disqualification from becoming a member of a local authority.
The thrust of Regulation 25 is disciplinary not disqualification.
Its intent imposes its limit, language used by a legislature being only a means of communicating its will in the given environment.
This is obvious from the fact that the Chairman is given the power to permit such participation by an employee 15 depending on the circumstance of each case.
Even the range of punishments is variable.
No ground rooted in public policy compels us to magnify the disciplinary prescription into a disenfranchising taboo.
To revere the word to reverse the sense is to do justice to the art of interpretation.
Reed Dickeron quotes a passage from an American case to highlight the guideline :( ') F "The meaning of some words in a statute may be enlarged or restricted in order to harmonize them with the legislative intent of the entire statute.
It is the spirit. of the statute which should govern over the literal meaning There is a further difficulty in construing the Regulation as stipulating an ineligibility for candidature because there is a proviso therein for the Chairman to grant permission to the employee to participate in elections Permission is a word of wide import and may even survive the death of the person Who permits (Kally vs Cornhill Insurance Co. (1) The Interpretation and Application of Statutes by Reed Dickerson, pr 199.
1090 Ltd.(1) Equally clearly, where a statute does not necessarily insist on previous permission it may be granted even later to have retrospective effect.
Or permission once granted may be retracted.
These legal possibilities will create puzzlesome anomalies if we treat the Regulations a ban on participation in election.
An employee may stand as a candidate after securing permission, but in the course of the election the Chairman may withdraw the permission.
What happens then ? An employee may be refused permission in the beginning and if he still contests and wins it is conceivable that the Chairman may grant him permission which may remove the disability.
In such a case, one who was ineligible at one stage becomes eligible at a later state.
Other odd consequences may also be conceived of, although it is not necessary to figure them out.
The rationale of the Regulation rather, its thrust, is disciplinary not disqualificatory.
It is quite conceivable, if the legislature so expresses itself unequivocally, that even in a law dealing with disciplinary control, to enforce electoral disqualifications provided the legislature has competence.
The present provision docs not go so far.
Even assuming that literality in construction has tenability in given circumstances, the doctrinal development in the nature of judicial interpretation takes us to other methods like the teleological.
the textual, the contextual and the functional.
The strictly literal may rot often be logical if the context indicates a contrary legislative intent.
Courts are not victims of verbalism but are agents of the functional success of legislation, given flexibility of meaning, if the law will thereby hit the target intended by the law maker.
Here the emphasis lies on the function, utility aim and purpose which the provision has to fulfil.
A policy oriented understanding of a legal provision which does not do violence to the text or the context gains preference as against a narrow reading of the words used.
Indeed, this approach is a version of the plain meaning rule,(2) and has judicial sanction.
In Hutton vs Phillips the Supreme Court of Delaware said:(1) (Interpretation) involves far more than picking out dictionary definitions of words or expressions used Consideration of the context and the setting is indispensable properly to ascertain a meaning .
In saying that a verbal expression is plain or unambiguous, we mean little more than that we are convinced that virtually anyone competent to (1)[1964] , H.L. per Lord Dilhorne, L. C. at p. 323.
(2)The Interpretation and Application of Statutes by Reed Dickerson p. 231.
(3)45 Del .156,160, 70 A. 2nd IS, 17 (1949) .
1091 understand it,and desiring fairly and impartially to ascertain its signification would attribute to the expression in its context a meaning such as the one we derive rather than any other and would consider any different meaning by comparison or far fetched, or unusual, or unlikely." This perceptive process leaves us in no doubt the soundness of the interpretation which has appealed to the Full Bench of the Punjab and Haryana High Court.
There is a broader constitutional principle which supports this semantic attribution.
The success of our democracy to 'tourniquet ' zenry indifferent to the political process an enemy of the Republic 's vitality.
Indeed absolutism thrives on inaction of the members of the polity.
Therefore activist involvement in various aspects of publics affairs by as many citizens as can be persuaded to interest themselves is as sign of the health and strength of our democratic system.
Local self government and adult franchise give constitutional impetus to the citizens to take part in public administration.
Of course this does not mean that where a plain conflict of interest between holding an office and talking part in in the political affairs of government exists, a disqualification can not be imposed in public interest.
The rule is participation the exception exclusion.
Viewed from that angle if a government servant or an employee of the LIC participate in local administration of other election it may well be that he may well be that he may forfeit his position as government servant or employment if dual devotion is destructive of efficiency as employee and be subject to disciplinary action a matter which depends on a given milieu and potential public mischief.
I am not resting my decision on this general consideration but mention this persuasive factor as broadly supportive our conclusion.
I hold that the impact of Regulation 25(4) is not to impose ineligibility on an LIC employee to be a member of a municipal corporation.
Its effect is not on the candidature but on the employment itself.
In the present case, I am told that the appellant has since resigned his post.
The ultimate result of the reasoning that appeals to us is that the judgement of the High Court must be reversed and the appellant restored to the poll verdict and be regarded as validly returned member of the Nagpur City Corporation.
1092 In this view, the next appeal by the first respondent does not fall to be considered although counsel has pressed his contention that the High Court was wrong.
I do not think it necessary to discuss elaborately the legal issue except to state that the view taken by the Bombay High Court in pyare Saheb 's case (1) is correct.
I am constrained to state that the draftsmanship of the provision is dubious and court in this decision has had to salvage sense out of alternative absurdity flowing from fidelity to pedantry.
It is clear in election law,that a defeated candidate cannot claim a seat through an election petition merely out of speculative possibilities of success.
The reasoning of the Bombay High Court not merely accords with the well known criteria incorporated in the Representation of the people Act, 1951 as well as in the rulings thereon by this Court but also is in consonance with the election sense.
It is true that there is no common law rule applicable in this area and election statutes have to be strictly construed but that does not doctrinally drive the Court to surrender to bizarre verbalism when a different construction may inject reasonableness i n to the provision.
Section 428 of the Corporation Act aims at sense and when a plurality of contestants are in the run other than the one whose election is set aside, predictability of the next highest becomes a misty venture.
The rule in s.428 contains the corrective in such situation s and the pregnant expression against whose election no cause or objection is found gives jurisdiction to the Court to deny the declaration by the next highest and to direct a fresh election when the constituency will speak.
We concur in the reasoning of Masodkar, j in the said ruling.(2) The reliance of Sukh Dev s case (3) by the counsel is inept.
I am satisfied that the view of the High Court on this branch of the case is correct.
I would therefore appeal No. 2406 of 1977 and dismiss appeal no 356 to 1978.
parties will bear their costs at this late when long litigation has kept in suspended animation the constituency 's right to representation.
Tulzapurkar, J I have had the benefit of reading the judgement of my esteemed brother Krishna Iyer in these appeals whereby he proposes to allow the returned candidates appeal (CA No 2406 of 1977) and dismiss the election petitioner 's appeal (C.A.NO.356 (1) Pyare Saheb Gulzar Chhotumiya Sawazi vs Dashrath Wasudeo Doff & Others (2) (3) Sukhdev Singh vs Bhagatram ; 1 S.C.C. 421 1093 of 1978) but I regret my inability to agree with him as in my view both the appeals deserve to be dismissed.
Judges and lawyers always clamour for legislative simplicity and when, as is the case here, legislative simplicity is writ large on the concerned provision and the text of the provision is unambiguous and not susceptible to dual interpretation, it would not be permissible for a Court by indulging i nuances semantics and interpretative acrobatics, to reach the opposite conclusion than is warranted by its plain text and make it plausible or justify it by spacious references to the object purpose or scheme of the legislation or in the name of judicial activism.
Election of Councillors to the Municipal Corporation of city of Nagpur was held on January 29 1975 whereat form ward no 34 Manohar Samarth (Appellant in Civil Appeal NO Marotrao Jadhav and three others (being respondent 1 to 4 in the said Civil Appeal) were the contesting candidates.
After the polling was over Manohar Samarth (hereinafter called the returned candidate was declared successful he having secured 1428 votes as against 943 secured by Marotrao Jadhav, 849 by respondent no 2 572 by respondent No 3 and 748 by respondent No 4.
Marotrao Jadhav (hereinafter referred to as the election petitioner ) challenged the election of the returned candidate from the said ward by filling an election petition (being Election petition No 6 of 1975) before the District Judge, Nagpur under section 428 of 'the Corporation Act.) principally on the ground that the returned candidate being a Development officer and a salaried employee in the Life Insurance Corporation (for short the L.I.C.) had neither sought nor obtained the Chairman s permission for offering his candidature and as such was disqualified from standing at the election under section 15 (g) of the Corporation 1960.
The election was also challenged on ground of corrupt practices, communal propaganda and distribution of malicious and defamatory hand bills on the part of the returned candidate.
In his written statement the returned candidate refuted all the grounds on which his election was challenged.
On the evidence and materials produced by the parties the learned Assistant Judge.
who heard the matter came to the conclusion that he returned candidate who was working as a Development officer in the L.I.C. was its whole time salaried employee and since he had contested the election without seeking or obtaining the permission of the Chairman of the L.I.C. he suffered a disqualification under section 15(g) of the 10 1094 Corporation Act read with Regulation 25 (4) of the L.I.C. (staff) Regulations, 1960 which vitiated his election.
On the other ground of challenge namely commission of corrupt practices and indulgence in communal propaganda and distribution of malicious and defamatory hand bills a finding was recorded in favour of the returned candidate and against the election petitioner.
In the result by her order dated December 21 1976 ,the learned Assistant Judge set aside the election of the returned candidate as being null and void and acting under s.428 (2) granted a further declaration that since the election petitioner had secured second highest votes, he shall be deemed to have been elected as a Councillor from that ward.
The decision of the learned Assistant Judge was challenged by the returned candidate by filing a writ petition (Special Civil Application No. 1 of 1977) before the Nagpur Bench of the Bombay High Court.
The High Court confirmed the view of the learned Assistant Judge that the returned candidate suffered a disqualification which vitiated his election but quashed the declaration granted in favour of the election petitioner on the ground that though he had secured the next highest votes there was no material on record from which it could be inferred that had the disqualification of the returned candidate been known to the voters they (the voters) would have definitely returned him as their Councillor to the Municipal Corporation from Ward No. 34.
The High Court, therefore, directed that a fresh election to fill the vacancy be held in accordance with law.
Civil Appeal No. 2406/77 has been preferred by the returned candidate challenging the High Court 's view on his disqualification while Civil Appeal No. 356/78 has been filed by the election petitioner against that part of the decision which has gone against him.
Dealing first with Civil Appeal No. 2406/1977 counsel for the returned candidate (the appellant) pressed only one contention in support of the appeal.
He contended that Regulation 25(4) framed under section 49(b) & (bb) of the L.I.C. Act, 1956, upon proper construction was 2 mere prohibition and not a measure laying down any disqualification.
According to him the L.I.C. (Staff) Regulations 1960 merely laid down the terms and conditions of service of the staff of the L.I.C. and Regulation 25(4) prescribes a code of conduct for the staff, a breach whereof would entail any of the penalties specified in Regulation.
39 and since in the instant case the returned candidate had offered his candidature without seeking or obtaining permission of the Chairman he could be said to have committed a breach of one of the terms or conditions of his service for which any penalty ranging 1095 from censure to dismissal could be imposed upon him but the purpose A of Regulation 25 (4) was not the enactment of any disqualification and as such the terms of s.15(g) of the Corporation Act were not answered by the mere fact that the returned candidate was an employee of the L.I.C. and was subject to Regulation 25(4).
Reference was also made to Regulation 2 and provision (iii) to Regulation 25(4) B, to lend support to the said contention.
It was pointed out that Regulation No. 2 made the Staff Regulations applicable to every wholetime salaried employee of the L.I.C. in India "unless otherwise provided by the terms of any contract.
agreement or letter of appointment" which Clearly suggested that certain whole time salaried employees of the L.I.C. whose terms and conditions of service were other wise governed by a contract, agreement or letter of appointment would outside the purview of these Regulations and the prohibition contained in Regulation 25(4) would not apply to such employees; similarly, it was pointed out that the prohibition under Regulation 25(4) itself was not absolute inasmuch as under proviso (iii) thereto the employee could offer himself as a candidate for election to a local authority with the permission of the Chairman.
It was contended that these aspects also showed that the prohibition under Regulation 25(4) did not amount to a disqualification.
In support of the construction sought to be placed on Regulation 25(4) counsel relied upon two decisions one of the Calcutta High Court in Md. Sarfatulla Sarkar vs Surja Kumar Mondal and ors.(l) and the other a Full Bench decision of the Punjab & Haryana High Court in Uttam Singh vs section Kripal Singh & Anr.(2) on the other hand, counsel for the election petitioner (first respondent) supported the view of the High Court that Regulation 25(4) read with section 15(g) of the Corporation Act clearly amounted to a disqualification or ineligibility which vitiated the election of the returned candidate.
He relied upon the Madras High Court 's decision in G. Narayanaswamy Naidu vs C. Krishnamurthi & Anr.(3) and urged that the Calcutta decision was clearly distinguishable and as against the Full Bench decision of Punjab and Haryana High Court which merely followed the Calcutta decision he pressed the Madras High Court 's view for our acceptance.
According to him the aspects emerging from Regulation 2 and proviso (iii) to Regulation 25(4) had no relevance to the issue of the proper construction of Regulation 25(4) read with section 15(g) of the Corporation Act.
He pointed out that cases falling within the two aspects emerging from Regulation 2 and proviso (iii) to Regulation 25(4) were (l) A. T. R. (2) A. 1.
R. (3) r. L. R. 1096 completely outside the prohibition, while the real issue was whether or not a case properly falling within the prohibition contained in Regulation 25(4) would entail a disqualification or ineligibility.
Since the question turns upon the proper construction of Regulation 25(4) of the L.I.C. (Staff) Regulation 1960 read with section 15(g) of the Corporation Act it will be desirable to set out the material provisions.
Section 15 of the Corporation Act enumerates in cls.
(a) to (i) the several ' disqualifications of candidates for election and section 15(g), which is by way of a residuary provision, runs thus: "15.
No person shall be eligible for election, selection, or or appointment as a Councillor if he (g) is under the provisions of any law for the time being in force, ineligible to be a member of any local authority, Provided that a disqualification under clause (e), (f), (g) or (i) may be removed by an order of The Provincial Government in this behalf.
" Regulation 25(4) together with proviso (iii) runs thus: "25.
Prohibition against participation in Politics and standing for Elections: (4) No employee shall canvass or otherwise interfere or use his influence in connection with or take part in an election to any legislature or local authority Provided that (iii) the Chairman may permit an employee to offer himself as a candidate for election to a local authority and the employee so permitted shall not be deemed to have contravened the pro visions of this regulation.
" It may be stated that Regulation 39 provides for imposition of several penalties ranging from censure to dismissal upon an employee if he were to commit a breach of any of the Staff Regulations.
The simple question is whether Regulation 25(4) read with section 15(g) constitutes or amounts to an ineligibility or disqualification for a whole time salaried employee of L.I.C. to become a member of any local authority.
In other words, is Regulation 25(4) a provision of law for the time being in force that renders a whole time salaried 1097 employee of L.I.C. ineligible to be a member of the Municipal Corporation within the meaning of section 15(g) of the Corporation Act? Before I consider this question of construction certain positions which were not disputed during the course of the arguments may be stated.
It was not disputed that at the relevant time, that is, at the time of the nomination as well as the time of election the returned candidate was a whole time salaried employee of the L.I.C. working as its Development officer and as such he was subject to the Staff Regulations.
It was also not disputed that under proviso (iii) to Regulation '25(4) he did not obtain the permission from the Chairman of the L.I.C. for the purpose of offering himself as a candidate at the election of the Municipal Corporation.
It was further not disputed that Regulation 25(4) being a statutory regulation framed under section 49(2) of the L.I.C. Act.
1956 had the force of law.
Further, though before the High Court a contention was strenuously urged that the words "any lay for the time being in force" occurring in section 15(g) must in the law which ought to have been in existence at the commencement date of the Corporation Act, such a contention was not pressed before us and it was conceded by the counsel for the returned candidate that the said words would include Regulation 25(4) as being the law for the time being in force.
Indeed, the concession, in my view, was rightly made by counsel for the returned candidate for the words "any law for the time being in force" occurring in section 15(g) Must in the context refer to the law in force at the relevant time, that is, at the time of nomination or election when the question of disqualification or ineligibility arises for consideration.
It is in light of these undisputed position that the question set out above will have to be considered.
The contention is that on proper construction Regulation 25(4) merely creates a prohibition but does not amount to a disqualification or ineligibility because the Staff Regulations were and are intended to define the terms and conditions of service of the employees of the L.I.C. it is not possible to accept such construction for more than one reason.
Tn the first place the heading of the Regulation clearly shows that it deals with the topic and intends to provide a prohibition against standing for election.
Secondly, cl.
(4) of the said Regulation in plain and express terms provides, "No employee shall. r . take part in an election to any local authority".
In other words, by using negative language it puts a complete embargo (subject to proviso (iii) upon every employee from taking part in an election to any local authority.
How else could a disqualification or ineligibility be worded ? To say that Regulation 25(4) merely creates a prohibition against standing for election but does not create any ineligibility or disqualification to stand for an election is merely to quibble at words.
14 409 SCI/79 1098 In my view, there is no distinction between a legal prohibition against a person standing for election and the imposition of an ineligibility or disqualification upon him so to stand.
It is true that the purpose of framing Staff Regulations was and is to define the terms and conditions of service of the employees of the L.I.C. and that being the purpose it is bu.
natural that a provision for imposition of penalties for breach of such Regulations would also be made therein.
In fact the validity of such prohibition contained in the concerned Regulation rests upon the postulate that it prescribes a code of conduct for the employees and as such it would be within the Regulation making power conferred on the L.I.C. under section 49 of the L.I.C. Act, 1956 but while prescribing a code of conduct the Regulation simultaneously creates a disqualification or ineligibility for the employee to stand for election to any local authority.
Moreover, to construe Regulation 25(4) as merely prescribing a code of conduct breach whereof is made punishable under Regulation 39 and not imposing a disqualification or ineligibility upon the employee to stand for election to a local authority would amount to rendering a residuary provision like section 15(g) in the Corporation Act otiose.
In my view, therefore, on proper construction Regulation 25(4) read with section 15(g) of the Corporation Act imposes a disqualification or creates an ineligibility for the employee of L.I.C. to stand for election to any local authority.
Reliance on the aspects emerging from Regulation 2 and proviso S (iii) to Regulation 25(4) cannot avail the returned candidate at all, for it is obvious that cases falling within those aspects are completely taken out of the prohibition contained in Regulation 25(4) while the real issue is whether a case properly falling within the prohibition contained in Regulation 25(4) on its proper construction entails a disqualification/ineligibility or not ? In fact, proviso (iii) to Regulation 25(4) is similar to the proviso to section 15 of the Corporation Act under which a disqualification under cls.
(e), (f), (g) or (i) could be removed by an order of the Provincial Government in that behalf and obviously when any one of those disqualifications is removed by an order of the Provincial Government under the proviso the case would clearly be outside section 15.
In other words, the two aspects (i) that certain employees under Regulation 2 would not be governed by the Staff Regulations at all and would not, therefore, be hit by the prohibition and (ii) that upon permission being obtained from the Chairman under proviso, (iii) the employee would be outside the prohibition have no bearing on the question of proper construction of Regulation 25(4).
Turning to the decided cases, it may be observed that a construction similar to the one which I have placed on Regulation 25(4) of 1099 L.I.C. (Staff) Regulations 1960 was placed by the Madras High Court in a similar L.I.C. Staff Regulation No. 29 read with Article 191(1) (e) of the Constitution in G. Narayanaswamy Naidu 's case (supra) and the very argument that Regulation 29 was merely a rule of conduct prescribed for the employees of the L.I.C., the breach of which might result in disciplinary action being taken against them but it did not render the employees disqualified For standing for election was in terms negatived.
At page 549 of the report the relevant observations run thus: "Though the point is not free from difficulty, we have reached the conclusion that this argument of the respondents must be rejected.
We see no distinction between a legal prohibition against a person standing for election, and the imposition of a disqualification on him so to stand.
It might be that the object of the regulation was to ensure that the employees of the Corporation bestowed undivided attention upon their duties as such employees, but this does not militate against the prohibition operating as a disqualification.
If a person is disabled by a lawful command of the Legislature, issued directly or mediately, from standing for election, it is tantamount to disqualifying him from so standing.
We, therefore, hold that regulation 29 framed by the Life Insurance Corporation constituted a law which disqualification C. Krishnamurthi (?) from standing for election under Article 191(1)(e) of the Constitution." Though the observations have been prefaced by the words "though the point is not free from difficulty", it seems to me clear that those words were used out of deference to the arguments advanced by learn ed counsel for the respondents in that case but the Court construed the Regulation as imposing a disqualification because its plain language warranted it without getting boggled by the object or purpose of the staff Regulation that had been framed under section 49(2) of the L.I.C. Act 1956.
The Calcutta decision in Md. Sarafatulla Sarkar 's case (supra) relied on by the counsel for the returned candidate is clearly distinguishable.
It was a case dealing with an election to Union Board under the Bengal Village Self Government Act (5 of 1919) and the question was whether Rule 23 of the Government Servants ' Conduct ,Rules, 1926 made under Rule 48 of the Civil Services (Classification.
1100 Control and Appeal) Rules framed by the Secretary of State under section 96B of the Government of India Act, 1915 19, imposed a disqualification or.
a Government servant against offering himself for an election to one of the bodies mentioned in Rule 23 and the Calcutta High Court took the view that it did not so as to render his election invalid but that the prohibition contained therein was of a nature of a personal bar which could be overstepped by the Government servant at his own peril as regards his membership of a service under the Government must be pointed out that section 10 A of the Bengal Village Self Government Act (S of 1919) which provided disqualifications ,for candidates from being a member of Union Board did not contain either a specific disqualification for a Government servant or any residuary provision similar to section 15(g) of the Corporation Act, 1948 or Article 191(1)(e) of the Constitution and it was in the absence of any such provision, either specific or residuary that the Calcutta High Court considered the impact of the prohibition contained in Rule 23 of the Government Servants ' Conduct Rules.
In fact, this aspect of the matter has been emphasised by the learned Chief Justice in para 5 of his judgment where he observed: "The learned Single Judge considered it immaterial that the holding of a post under the Government had not mentioned as one of the disqualifications for election in section 10A, Bengal Village Self Government Act, 1919 because in his view, the enumeration of disabilities in that section was not exhaustive.
" In other words, it is clear that had section 10A of the Bengal Village Self Government Act, contained either a specific disqualification or a residuary provision of the type that is to be found in section 15(g) of the Corporation Act, 1948 or Article 191(1) (e) of the Constitution Rule 23, it appears, might have been differently construed.
Construing Rule 23 by itself the learned Chief Justice came to the conclusion that the prohibition therein was directed at personal conduct and not at right owned by the Government servant concerned.
In the instant case Regulation 25(4) has to be read with section 15(g) of the Corporation Act, 1948.
The learned Chief Justice referred to Rule 8 of the said Rules, which forbade a Gazetted officer to lend money to any person possessing land within the local limits of his authority and pointed out that even so if a Gazetted officer were to lend money to a person of the specified category, none could say that the officer shall not be entitled to recover the amount of the loan.
The test so suggested by the learned Chief Justice may hold good if Rule 8 sim 1101 pliciter were to be construed.
But, if in addition to Rule 8 there A was simultaneously in operation a usury law which made certain loans irrecoverable including a loan prohibited by any law for the time being in force then obviously Rule 8 read with such usury law would render the loan given by the Gazetted officer irrecoverable.
Similar would be the position regarding the two Regulations No. 32 and No. 33 referred to by my learned brother Krishna Iyer, J. in his judgment.
Therefore, the Calcutta decision is clearly distinguishable mainly on the ground that Rule 23 of the Government Servants ' Conduct Rules standing by itself came up for construction before that Court in the absence of any specific disqualification or a general disqualification of a residuary nature being enacted in section 10A of the Bengal Village Self Government, Act, 1919.
The Full Bench decision of the Punjab & Haryana High Court, in my view, merely follows the reasoning of the Calcutta decision without considering The distinction indicated above and, therefore, it is clear to me that the construction placed by that High Court on Regulation 25(4) of the L.I.C. (Staff) Regulations (1960) read with Article ]91(1)(e) of the Constitution should be rejected as an erroneous one and the construction placed by the Madras High Court deserves to be approved.
Having regard to the above discussion I am clearly of the view that the returned candidate suffered a disqualification or rather was under an ineligibility under Regulation 25(4) read with s; 15(g) of the Corporation Act, 1948 which vitiated his election; if he were keen on active participation in the democratic process it was open to him to do so by either resigning his post or obtaining the Chairman 's permission before offering his candidature but his right as a citizen to keep up the Republic 's vitality by active participation in the political process cannot be secured to him by a purpose oriented construction of the relevant Regulation.
His appeal, therefore, deserves to be dismissed.
Before parting with this appeal I feel constrained, as a part of my duty, to give vent to my feelings of discomfiture and distress over one thing which is exercising my mind for a considerable time in this Court.
In all humility I would like to point out that prefaces and exordial exercises, perorations and sermons as also theses and philosophies (political or social), whether couched in flowery language or language that needs simplification, have ordinarily no proper place in judicial pronouncements.
In any case, day in and day out indulgence in these in almost every judgment, irrespective of whether the subject or the context or the occasion demands it or not, serves little purpose, and surely such indulgence becomes indefensible when matters are to be disposed of in terms of settlement arrived at between 1102 the parties or for the sake of expounding the law while rejecting the approach to the Court at the threshold on preliminary grounds such as non maintainability, laches and the like.
I am conscious that judicial activism in many cases is the result of legislative inactivity and the role of a Judge as a lawmaker has been applauded but it has been criticised also lauded when it is played within the common law tradition but criticised when it is carried to extremes.
Lord Radcliffe in his address titled 'The Lawyer and His Times ' delivered at the Sesquicentennial Convocation of the Harvard Law School observed thus: "do not believe that it was ever an important discovery that judges are in some sense lawmakers.
It is much more important to analyse the relative truth of an idea so far reaching; because, unless the analysis is strict and its limitations observed, there is real danger in its elaboration.
We cannot run the risk of finding the archetypal image of the judge confused in men 's minds with the very different image of the legislator.
" And the risk involved is the possible destruction of the image of the judge as "objective, impartial, erudite and experienced declarer of the law That is" which "lies deeper in the consciousness of civilization than the image of the lawmaker, propounding what are avowedly.
new rules of human conduct.
Personally I think that judges will serve the public interest better if they Keep quiet about their legislative function.
No doubt they will discreetly contribute to changes in the law, because as I have said, they cannot do otherwise, even if they would.
But the judge who shows his hand, who advertises what he is about, may indeed show that he is a strong spirit, unfettered by the past; but I doubt very much whether he is not doing more harm to the general confidence in the law as a constant, safe in the hands of the judges, than he is doing good to the law 's credit as a set of rules nicely attuned to the sentiment of the day.
" Turning to the election petitioner 's appeal (C.A. No. 356 of 1978) I am in complete agreement with the view expressed by the High Court that the declaration granted to him by the learned Assistant Judge under section 428(2) of the Corporation Act, 1948 should never have been granted.
It is true that the election petitioner secured the next highest number of votes but that by itself would not entitle him to get a declaration in his favour that he be deemed to leave been duly elected as a Councillor from Ward No. 34.
I may point out 1103 that section 428(2) is not that absolute as was suggested by counsel for the election petitioner, for, the relevant part of sub section
(2) provides that if the election of the returned candidate is either declared to be null and void or is set aside the District Court "shall direct that the candidate, if any, in whose favour next highest number of valid votes is recorded after the said person or after all the persons who have returned at the said election and against whose election no cause or objection is found shall be deemed to have been elected.
" The underlined words give jurisdiction to the District Court to deny the declaration to the candidate who has secured the next best votes The High Court has rightly taken the view that there was no material on record to show how the voters, who had voted for the returned candidate, would have cast their votes had they known about the disqualification.
Therefore, this appeal also deserves to be dismissed.
In the result I propose that both the appeals should be dismissed with no order as to costs in each.
PATHAK, J. Manohar Nathurao Samrath was a Development officer in the service of the Life Insurance corporation of India.
His employment was governed by the Life Insurance Corporation of India (Staff) Regulations, 1960 [shortly referred to as the "(Staff) Regulations]" Desirous of being a Councillor in the Corporation of the City of Nagpur (to which I shall refer as the "Nagpur Corporation"), he stood for election to that office, and was elected.
But Regulation 25(4) of the (Staff) Regulations forbade him from taking part in any election to a local authority.
He could have taken part in the election if he had sought and obtained the permission of the Chairman of the Life Insurance Corporation of India under the third proviso to Regulation 25(4).
He did not obtain permission.
His election as Councillor was challenged by an election petition filed by an unsuccessful candidate Marotrao.
It was said that Samrath was ineligible to stand for election because of section 15(g) of the City of Nagpur corporation Act, 1948 (to be referred hereinafter as the "Nagpur Corporation Act" 5) read with Regulation 25(4) of the (Staff) Regulations The ground found favour with the learned Assistant Judge trying the election petition, and she declared the election void.
She also granted a declaration that Marotrao was the duly elected candidate.
Samrath filed a writ petition in the Bombay High Court.
The High Court agreed with the learned Assistant Judge that Samrath was not eligible for election and that his election was void.
But it also set aside the declaration granted in favour of Marotrao, and directed a fresh election.
The Judgment of the High Court has been challenged by these two appeals, one by Samrath and the other by Marotrao.
1104 The central question is whether Samrath is ineligible for election as a Councillor of the Nagpur Corporation because of Section 15(g) of the Nagpur Corporation Act read with Regulation 25(4) of the (Staff) Regulations.
Section 15(g) of the Nagpur Corporation Act provides: "15.
No person shall be eligible for election as a Councillor if he . . . . (g) is, under the provisions of any law for the time being in force, ineligible to be a member of any local authority: . . . .
And Regulation 25(4) of the Staff Regulations declares: "(25) (1) . . . (2) . . . (3). . . . (4) No employee shall canvass or otherwise interfere or use his influence in connection with or take part in an election to any legislature or local authority.
Provided that (i). . . . (ii). . . (iii) the Chairman may permit an employee to offer him self as a candidate for election to a local authority and the employee so permitted shall not be deemed to have contravened the provisions of this regulation".
The Nagpur Corporation Act contains a number of provisions concerned with holding elections to the Nagpur Corporation.
Sections 9 to 22 deal with various matters, electoral roll, the qualification of candidates, disqualification of candidates, term of office, filling up of casual vacancies, and so on.
There is an entire Code of election law.
And Section 15 is one of its provisions.
Now, section 15 of the Nagpur Corporation Act declares a person ineligible for election as a Councillor on any one of several grounds.
He may be ineligible be cause he is not a citizen of India, that is to say, he lacks in point of legal status.
He may also be ineligible in point of lack of capacity defined by reference to disqualifying circumstances, for example, he may have been adjudged by a competent court to be of unsound mind.
` 1105 The disqualification may be found, by nature of clause (g), under the provisions of any subsisting law.
But the law must provide that he is ineligible to be a member of any local authority.
The law must deal with ineligibility for membership, and in the context of section 15, that must be ineligibility for election.
It must be a law concerned with elections.
Clause (g) is a residual clause, not uncommonly found wherever a provision of an election law sets forth specified category of disqualified or ineligible person and thereafter includes a residual clause leaving the definition of remaining categories of two other laws.
These other laws must also be election laws.
An example is the Representation OF the People Act, 1951 which is relevant to Article 102(1)(e) and Article 191(l)(e) of the Constitution.
Since Section 15 of the Nagpur Corporation Act is a provision of the election law, clause (g) must be so construed that the law providing for ineligibility contemplated therein must also be of the same nature, that is to say, election law.
Regulation 25(4) of the (Staff) Regulations is not a law, dealing with elections.
Chapter III of the (Staff) Regulations, in which Regulation 25 is found, deals with "conduct, discipline and appeals" in regard to employees of the Life Insurance Corporation of India.
A conspectus of the provisions contained in the Chapter, from sections 20 to SO, shows that it deals with nothing else.
This is a body of provisions defining and controlling the conduct of employees in order to ensure efficiency and discipline in the Corporation, and providing for penalties (Section 39) against erring employees.
Regulation 25 prohibits participation in politics and standing for elections.
Regulation 25(4) forbids an employee not only from taking part in an election to any legislature or local authority, but also from canvassing or otherwise interfering, or using his influence, in connection with such an election.
If he does, he will be guilty of a breach of discipline, punishable under Regulation 39.
Regulation 25(4) is a norm of service discipline.
In substance, it is nothing else.
Tn substance, it is not a provision of election law.
It cannot be construed as defined a ground of electoral ineligibility.
All that it says to the employee is: "While you may be eligible for election to a legislature or local authority, by virtue of your legal status or capacity, you shall not exercise that right if you wish to conform to the discipline of your service." The right to stand for election flows from the election law.
Regulation 25(4) does not take away or abrogate the right; it merely seeks to restrain the employee from exercising it in the interests of service discipline.
If in fact the employee exercises the right, he may be punished under Regulation 39 with any of the penalties visited on an employee a penalty which takes its colour from the relevance of em 1106 ployment, and has nothing to do with the election law.
No penalty under Chapter III of the (Staff) Regulations can provide for invalidating the election of all employee to a legislature or a local authority.
That would be a matter for the election law.
It is significant that when the restraint on standing for election imposed by Regulation 25(4) has to be removed, it is by the Chairman of the Life Insurance Corporation of India under the third proviso.
When he does so, it is as a superior in the hierarchy of service concerned with service discipline.
He does not do so as an authority concerned with elections.
Therefore, in my judgment, Regulation 25(4) of the (Staff) Regulation is not a law within the contemplation of section 15(g) of the Nagpur Corporation Act.
In reaching that view, I find myself, with regret, unable to sub scribe to what has been observed by the Madras High Court in Narayanaswamy vs Krishnamurthi.(l) I would say that the Calcutta High Court in Sarafatulla Sarkar vs Surja Kumar Mondal( ') and the Punjab and Haryana High Court ill Uttam Singh vs section Kirpal Singh(3 appear to have come a more accurate conclusion.
Samrath must, therefore, succeed in his appeal.
That being so, Marotrao must fail in his.
Samrath having been duly elected to the office of Councillor, Marotrao cannot claim the same office for himself.
In the result, Civil Appeal No. 2406 of 1977 is allowed and Civil Appeal No. 356 of 1978 is dismissed.
The judgment of the Bombay High Court is set aside and the election petition filed by Marotrao is dismissed.
In the circumstances of the case, the parties will bear their costs.
ORDER By majority Civil Appeal No. 2406 of 1977 is allowed.
Civil Appeal No. 356/78 is dismissed unanimously.
There will be no order as to costs in each of the appeals.
V.D.K. Ordered accordingly (1) I. L. R (2) A. I. R. (3) A. I. R. 1976 Pb. & Haryana.
| Rule 10, Chapter II, Part 6 of the Rules framed by the Bar Council of India for professional mis conduct provides that an advocate shall not stand a surety, or certify the soundness of a surety, for his client required for the purposes of any legal proceedings.
The appellant, a practising advocate, was suspended for one month by the Disciplinary Tribunal of the Bar Council of India on the ground that in violation of the rules, he had certified the solvency of a surety in a bailable offence in which the accused was his client.
The appellate body dismissed his appeal.
On the question whether a reprimand would meet the ends of justice, Allowing the appeal in part, ^ HELD: (1) Section 35 of the Advocates Act permits reprimand provided the ends of public justice are met by this leniency.
Ordinarily this Court does not interfere with a punishment imposed by the Disciplinary Tribunal except where strong circumstances involving principle are present.
Censure has a better deterrent value on the errant brethren in the profession in some situations than suspension for a month from professional practice.
In the present case the lawyer was young, the offence was not tainted with turpitude and the surety whose solvency he certified was found to be good.
These circumstances are amelioratory and hardly warrant codign punishment.
Public admonition is an appropriate sentence in the present case.
p, Public professions which enjoy a monopoly of public audience have statutorily enforced social accountability for purity, probity and people conscious service.
In our country bail has become a logy and an instrument of unjust incarceration.
This harasses the poor and leads to corruption.
A smart lawyer who appears for an indigent accused may commiserate and enquire whether the surety is solvent.
If he is satisfied that the surety is sufficiently solvent, he may certify the solvency of the surety.
In some cases the detainee may be a close relation or close friend or a poor servant of his.
In that capacity, not as a lawyer, he may know the surety and his solvency or may offer himself as a surety.
In such cases he violates the rule all the same.
The degree of culpability in such cases depends on the total circumstances and the social milieu.
The rule under consideration is a wholesome one in the sense that lawyers should not misuse their role for making extra perquisites by standing surety for their clients or certifying the solvency of such sureties.
The Court may not 206 frown upon a lawyer who helps out the person, not by false pretences, but on the strength of factual certitude and proven inability to substantiate solvency.
The Court reprimanded the appellant and directed that he shall not violate the norm of professional conduct and shall uphold the purity and probity of the profession generally.
|
Appeals Nos. 380 to 389, 391 to 399, 401, 429 and 431 to 434 of 1958.
Appeals from the judgment and decree dated December 19, 1956, of the Allahabad High Court in Civil Misc.
Writs Nos.
1574, 1575, 1576, 1577, 1578, 1579,1444,1584,1586,1589, 1631, 1632, 1634, 1635, 1636,1694, 1695, 1697, 1704, 1707, 3726, 1647, 1948 and 1949 and 1956.
M. K. Nambiyar, Shyam Nath Kacker, J. B. Dadachanji, section N. Andley and Rameshwar Nath, for the appellants (in C. As.
380 385, 387 389, 391 399 and 401 of 1958). S.N.Kacker and J. B. Dadachanji, for the appellant (in C. A. No. 386/58).
Naunit Lal, for the appellants (in C. As.
429 & 431 434/58).
K. B. Asthana & G. N. Dikshit, for the respondents.
January 15.
The judgment of Das, C. J., and Sinha, J., was delivered by Das, C. J.
The judgment of Bhagwati, Subba Rao and Wanchoo, JJ., was delivered by Subba Rao, J. DAS, C. J. We have had the advantage of perusing the judgment prepared by our learned Brother Subba Rao and 'we agree with the order proposed by him, namely, that all the above appeals should be dismissed with costs, although we do not subscribe to all the reasons advanced by him.
The relevant facts and the several points raised by learned counsel for the appellants and the petitioners in support of the appeals have been fully set out in the judgment which our learned Brother will presently deliver and it is not necessary for us to set out the 12 same here.
Without committing ourselves to all the reasons adopted by our learned Brother, we agree with his following conclusions, namely, (1) that the Uttar Pradesh Transport Service (Development) Act, 1955 (Act IX of 1955), hereinafter referred to as the U. P. Act, did not, on the passing of the Motor Vehicles (Amendment) Act, 1956 (100 of 1956), hereinafter referred to as the Central Act, become wholly void under article 254(1) of the Constitution but continued to be a valid and subsisting law supporting the scheme already framed under the U. P. Act; (2) that, even if the Central Act be construed as amounting, under article 254(2), to a repeal of the U. P. Act, such repeal did not destroy or efface the scheme already framed under the U. P. Act, for the provisions of section 6 of the General Clauses Act saved the same; (3) that the U. P. Act did not offend the provisions of article 31 of the Constitution, as it stood before the Constitution (4th Amendment) Act, 1955, for.
the U. P. Act and in particular section 11(5) thereof provided for the payment of adequate compensation.
These findings are quite sufficient to dispose of the points urged by Mr. Nambiyar and Mr. Naunit Lal in support of the claims and contentions of their respective clients.
In view of the aforesaid finding that the U. P. Act did not infringe the fundamental rights guaranteed by article 31, it is wholly unnecessary to discuss the following questions, namely, (a) whether the provisions of 'Part III of the Constitution enshrining the fundamental rights are mere checks or limitations on the legislative competency conferred on Parliament and the State Legislatures by articles 245 and 246 read with the relevant entries in the Lists in the Seventh Schedule to the Constitution or are an integral part of the provisions defining, prescribing and conferring the legislative competency itself and (b) whether the doc trine of eclipse is applicable only to pre Constitution laws or can apply also to any post Constitution law which falls under article 13(2) of the Constitution.
As, however, our learned Brother has thought fit to embark upon a discussion of these questions, we desire to guard ourselves against being understood as 13 accepting or acquiescing in the conclusion that the doctrine of eclipse cannot apply to any post Constitution law.
A post Constitution law may infringe either a fundamental right conferred on citizens only or a fundamental right conferred on any person, citizen or non citizen.
In the first case the law will not stand in the way of the exercise by the citizens of that fundamental right and, therefore, will not have any operation on the rights of the citizens, but it will be quite effective as regards non ,citizens.
In such a case the fundamental right will, qua the citizens, throw a shadow on the law which will nevertheless be on the Statute Book as a valid law binding on non citizens and if the shadow is removed by a constitutional ,amendment, the law will immediately be applicable even to the citizens without being re enacted.
The decision in John M. Wilkerson vs Charles A. Rahrer (1) cited by our learned Brother is squarely in point.
In other words the doctrine of eclipse as explained by this Court in Bhikaji Narain Dhakras vs The State of Madhya Pradesh (2) also applies to a post Constitution law of this kind.
Whether a post Constitution law of the other kind, namely, which infringes a fundamental right guaranteed to all persons, irrespective of whether they are citizens or not, and which, therefore, can have no operation at all when it is enacted, is to be regarded as a still born law as if it had not been enacted at all and, therefore, not subject to the doctrine of eclipse is a matter which may be open to discussion.
On the findings arrived at in this case, however, a discussion of these aspects of the matter do not call for a considered opinion and we reserve our right to deal with the same if and when it becomes actually necessary to do so.
SUBBA RAO, J.
These twenty five appeals are by certificate under articles 132 and 133 of the Constitution granted by the High Court of Judicature at Allahabad and raise the question of the validity of the scheme of nationalization of State Transport Service formulated by the State Government and the consequential orders made by it.
(1) ; ; , (2) [1955] 2 S.C.R. 589.
14 The said appeals arise out Writ Petitions filed by he appellants in the Allahabad High Court challenging the validity of the U. P. Transport Services (Development) Act of 1955, being U. P. Act No. IX of 1955 (hereinafter referred to as the U. P. Act), and the notifications issued thereunder.
All the appeals were consolidated by order of the High Court.
The appellants have been carrying on business as stage carriage operators for a considerable number of years on different routes in Uttar Pradesh under valid, permits issued under the , along with buses owned by Government.
The U. P. Legislature, after obtaining the assent of the President on April 23, 1955, passed the U. P. Act and duly published it on April 24, 1955.
Under section 3 of the U. P. Act, the Government issued a notification dated May 17, 1955, whereunder it was directed that the aforesaid routes along with others should be exclucively served by the stage carriages of the Government and the private stage carriages should be excluded from those routes.
On November 12, 1955, the State Government published the notification under section 4 of the U. P. Act formulating the scheme for the aforesaid routes among others.
The appellants received notices under section 5 of the U. P. Act requiring them to file objections, if any, to the said scheme; and after the objections were received, they were informed that they would be heard by a Board on January 2, 1956.
On that date, the objections filed by the operators other than those of the Agra region were heard and the inquiry in regard to the Agra region was adjourned to January 7, 1956.
It appears that the operators of the Agra region did not appear on the 7th.
The notification issued under section 8 of the U. P. Act was pub lished in the U. P. Gazette on June 23, 1956, and on June 25, 1956, the Secretary to the Regional Transport Authority, Agra, sent an order purported to have been issued by the Transport Commissioner to the operators, of the Agra region prohibiting them from plying their stage carriages on the routes and also informing them that their permits would be transferred to other routes.
On July 7, 1956, a notice was sent to 15 filed Writ Petitions in the Allahabad High Court challenging the validity of the U. P. Act and the notifications issued thereunder.
The facts in Civil Appeal No. 429 of 1958 are slightly different from those in other appeals and they may be stated: The appellant 's application for renewal of his permanent permit was rejected in 1953; but, on appeal, the State Transport Authority Tribunal allowed his appeal on September 6,1956, and directed his permit to be renewed for three years beginning from November 1, 1953.
Pursuant to the order of the Tribunal, the appellant 's pert nit was renewed with effect from November 1, 1953, and it was made valid up to October 31, 1956.
The scheme of nationalisation was initiated and finally approved between the date of the rejection of the appellant 's application for renewal and the date when his appeal was allowed.
The appellant applied on October 11, 1956, for the renewal of his permit and he was informed by the Road Transport Authority, Allahabad, that no action on his application, under reference was possible.
The appellant 's contention, among others, was that the entire proceedings were taken behind his back and therefore the scheme was not binding on him.
The appellants in thirteen appeals, namely, Civil Appeals Nos.
387 to 389, 391 to 394, 396 to 399 and 401 and 429 were offered alternative routes.
Though they tentatively accepted the offer, presumably on the ground that it was the lesser of the two evils, in fact they obtained stay as an interim arrangement and continued to operate on the old routes.
The appellants filed applications for permission to urge new grounds in the appeals, which were not taken before the High Court.
The said grounds read : (i) That by reason of the coming into operation of the Motor Vehicles (Amendment) Act, No. 100 of 1956, passed by Parliament and published in the Gazette of India Extraordinary dated 31st December, 1956, the impugned U. P. Act No. IX of 1955 has become void.
(ii) That by reason of Article 254 of the Constitution of India, the said impugned Act No. IX of 1955, 16 being repugnant and inconsistent with the Central Act No. 100 of 1956, has become void since the coming into operation of the aforesaid Act No. 100 of 1956 ".
The judgment of the Allahabad High Court, which is the subject matter of these appeals, was delivered on December 19, 1956.
The Amending Act of 1956 was published on December 31, 1956.
It is therefore manifest that the appellants could not have raised the aforesaid grounds before the High Court.
Further, the grounds raise only a pure question of law not dependent upon the elucidation of any further facts.
In the circumstances, we thought it to be a fit case for allowing the appellants to raise the new grounds and we accordingly gave them the permission.
Mr. M. K. Nambiar, appearing for some of the appellants, raised before us the following points: (i) The Motor Vehicles (Amendment) Act (100 of 1956) passed by, the Parliament is wholly repugnant to the provisions of the U. P Act and therefore the latter became void under the provisions of Article 254(1) of the Constitution ; with the result that, at the present time, there is no valid law whereunder the Government can prohibit the appellants from exercising their fundamental right under the Constitution, namely, to carry on their business of motor transport; (ii) the scheme framed under the Act, being one made to operate in future and from day to day, is an instrument within the meaning of section 68B of the Amending Act, and therefore the provisions of the Amending Act would prevail over those of the scheme, and after the Amending Act came into force, it would have no operative force; and (iii) even if the U. P. Act was valid and continued to be in force in regard to the scheme framed thereunder, it would offend the provisions of article 31 of the Constitution, as it was before the Constitution (Fourth Amendment) Act, 1955, as, though the State had acquired the appellant 's interest in a commercial undertaking, no compensation for the said interest was given, as it should be under the said Article.
The other learned Counsel, who followed Mr. Nambiar, except Mr. Naunit Lal, adopted his argument.
Mr. Naunit Lal, in addition to the argument 17 advanced by Mr. Nambiar in regard to the first point, based his contention on the proviso to article 254(2) of the Constitution rather than on article 254(1).
He contended that by reason of the Amending Act,,, the U. P. Act was repealed in toto and, because of section 68B of the Amending Act, the operation of the provisions of the General Clauses Act was excluded.
In addition, he contended that in Appeal No. 429 of 1958, the scheme, in so far as it affected the appellant 's route was bad inasmuch as no notice was given to him before the scheme was approved.
We shall proceed to consider the argument advanced by Mr. Nambiar in the order adopted by him; but before doing so, it would be convenient to dispose of the point raised by the learned Advocate General, for it goes to the root of the matter, and if it is decided in his favour, other questions do not fall for consideration.
The question raised by the learned Advocate General may be posed thus: whether the amendment of the Constitution removing a constitutional limitation on a legislature to make a particular law has the effect of validating the Act made by it when its power was subject to that limitation.
The present case illustrates the problem presented by the said question.
The U. P. Legislature passed the U. P. Act on April 24, 1955, whereunder the State Government was authorized to frame a scheme of nationalization of motor transport.
After following the procedure prescribed therein, the State Government finally published the scheme on June 23, 1956.
The Constitution (Fourth Amendment) Act, 1955, received the assent of the President on April 27, 1955.
The State Government framed the scheme under the U. P. Act after the passing of the Constitution (Fourth Amendment) Act, 1955.
Under the said Amendment Act, el.
(2) of article 31 has been amended and cl.
(2A) has been inserted.
The effect of the amendment is that unless the law provides for the transfer of ownership or right to possession of any property to the State or to a Corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or 3 18 requisition of property within the meaning of cl.
(2) of that Article and therefore where there is no such transfer, the condition imposed by cl.
(2), viz., that the law Should fix the amount of compensation or specify the principles on which and the manner in which the compensation is to be determined and given is not attracted.
If the amendment applies to the U. P. Act, as there is no transfer of property to the State, no question of compensation arises.
On the other hand, if the unamended Article governs the U. P. Act, the question of compensation will be an important factor in deciding its validity.
The answer to the problem so presented depends upon the legal effect of a consti tutional limitation of the legislative power on the law made in derogation of that limitation.
A distinction is sought to be made by the learned Advocate General between the law made in excess of the power conferred on a legislature under the relevant List in the Seventh Schedule and that made in violation of the provisions of Part III of the Constitution.
The former, it is suggested, goes to the root of the legislative power, whereas the latter, it is said, operates as a check on that power, with the result that the law so made is unenforceable, and as soon as the check is removed, the law is resuscitated and becomes operative from the date the check is removed by the constitutional amendment.
Mr. Nambiar puts before us the following two propositions in support of his contention that the law so made in either contingency is void ab initio: (i) the paramountcy of fundamental rights over all legislative powers in respect of all the Lists in the Seventh Schedule to the Constitution is secured by the double process of the prohibition laid by article 13(2) and the restrictions imposed by article 245, unlike the mere implied prohibition implicit in the division of power under article 246; and (ii) where the provisions of an enactment passed by a legislature after January 26, 1950, in whole or in part subject to the doctrine of severability are in conflict with the provisions of Part III, the statute, in whole or in part, is void ab initio.
This question was subjected to judicial scrutiny by this 19 Court, but before we consider the relevant authorities, it would be convenient to test its validity on first principles.
The relevant Articles of the Constitution read as follows: Article 245: "(1)Subject to the provision of this Constitution, Parliament may make laws for the whole or any part of the territory Of India, and the Legislature of a State may make laws for the whole or any part of the State.
" Article 246: " (1) Notwithstanding anything in clauses (2) and (3) Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the" Union List ").
(2) Notwithstanding anything in clause (3), Parliament and, subject to clause (1), the Legislature of any State also, have power to make.
laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the " Concurrent List").
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the " State List ").
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.
" Article 13: " (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall Dot make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention be void." 20 Article 31 (Before the Constitution (Fourth Amendment) Act, 1955): " (1) No person shall be deprived of his property save by authority of law.
(2) No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given The combined effect of the said provisions may be stated thus: Parliament and the Legislatures of States have power to make laws in respect of any of the matters enumerated in the relevant lists in the Seventh Schedule and that power to make laws is subject to the provisions of the Constitution including article 13, i.e., the power is made subject to the limitations imposed by Part III of the Constitution.
The general power to that extent is limited.
A Legislature, therefore, has no power to make any law in derogation of the injunction contained in article 13.
Article 13(1) deals with laws.in force in the territory of India before the commencement of the Constitution and such laws in so far as they are inconsistent with the provisions of Part III shall, to the extent of such inconsistency be void.
The clause, therefore, recognizes the validity of, the pre Constitution laws and only declares that the said laws would be void thereafter to the extent of their inconsistency with Part III; whereas cl.
(2) of that article imposes a prohibition on the State making laws taking away or abridging the rights conferred by Part III and declares that laws made in contravention of this clause shall, to the extent of the contravention, be void.
There is a clear distinction between the two clauses.
Under el.
(1), a pre Constitution law subsists except to the extent of its inconsistency with the provisions of Part III; whereas, no post Constitution law 21 can be made contravening the provisions of Part III, and therefore the law, to that extent, though made, is a nullity from its inception.
If this clear distinction is borne in mind, much of the cloud raised is dispelled.
When cl.
(2) of article 13 says in clear and unambiguous terms that no State shall make any law which takes away or abridges the rights conferred by Part III, it will not avail the State to contend either that the clause does not embody a curtailment of the power to legislate or that it imposes only a check but not a prohibition.
A constitutional prohibition against a State making certain laws cannot be whittled down by analogy or by drawing inspiration from decisions on the provisions of other Constitutions; nor can we appreciate the argument that the words " any law " in the second line of article 13(2) posits the survival of the law made in the teeth of such prohibition.
It is said that a law can come into existence only when it is made and therefore any law made in contravention of that clause presupposes that the law made is not a nullity.
This argument may be subtle but is not sound.
The words " any law " in that clause can only mean an Act passed or made factually, notwithstanding the prohibition.
The result of such contravention is stated in that clause.
A plain reading of the clause indicates, without any reasonable doubt, that the prohibition goes to the root of the matter and limits the State 's power to make law; the law made in spite of the prohibition is a still born law.
Cooley in his book " Constitutional Limitations" (Eighth Edition, Volume I), states at page 379: " From what examination has been given to this subject, it appears that whether a statute is constitutional or not is always a question of power; that is, a question whether the legislature in the particular case, in respect to the subject matter of the act, the manner in which its object is to be accomplished, and the mode of enacting it, has kept within the constitutional limits and observed the constitutional conditions." The Judicial Committee in The Queen.
vs Burah (1) observed at page 193 as under (1) (1878) L.R. 5 I. A. 178.
22 The established courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question ; and ,the only way in which they can properly do so, is by ;looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted.
" The Judicial Committee again in Attorney General for Ontario vs Attorney General for Canada (1) crisply stated the legal position at page 583 as follows: ". . . if the text is explicit the text is con clusive, alike in what it directs and what it forbids." The same idea is lucidly expressed by Mukherjea, J., as he then was, in K. C. Gajapati Narayan Deo vs The State of Orissa (2).
It is stated at page 11 as follows: " If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the subject_matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers.
" The learned Judge in the aforesaid passage clearly accepts the doctrine that both the transgression of the ambit of the entry or of the limitation provided by the fundamental rights are equally transgressions of the limits of the State 's constitutional powers.
It is, therefore, manifest that in the construction of the constitutional provisions dealing with the powers of the legislature, a distinction cannot be made between an affirmative provision I and a negative provision; for, both are limitations on the power.
The Constitution affirmatively confers a power on the legislature to make laws within the ambit of the relevant entries in the lists and negatively prohibits it from making laws infringing the fundamental rights.
It (1) (2) ; 23 goes further and makes the legislative power subject to the prohibition under article 13(2).
Apparent wide power is, therefore, reduced to the extent of the prohibition.
If articles 245 and 13(2) define the ambit of the power to legislate, what is the effect of a law made in excess of that power ? The American Law gives a direct and definite answer to this question.
Cooley in his " Constitutional Limitations " (Eighth Edition, Volume I) at page 382 under the heading " Consequences if a statute is void " says : " When a statute is adjudged to be unconstitutional, it is as if it had never been. . . .
And what is true of an act void in toto is true also as to any part of an act which is found to be unconstitutional, and which, consequently, is to be regarded as having never, at any time, been possessed of any legal force.
" In Rottschaefer on Constitutional Law, much to the same effect is stated at page 34: " The legal status of a legislative provision in so far as its application involves violation of constitutional provisions, must however be determined in the light of the theory on which Courts ignore it as law in the decision of cases in which its application produces unconstitutional results.
That theory implies that the legislative provisions never had legal force as applied to cases within that clause.
" In " Willis on Constitutional Law ", at page 89: " A judicial declaration of the unconstitutionality of a statute neither annuls nor repeals the statute but has the effect of ignoring or disregarding it so far as the determination of the rights of private parties is concerned.
The Courts generally say that the effect of an unconstitutional statute is nothing.
It is as though it had never been passed. . . . . " Willoughby on Constitution of the United States Second Edition, Volume I, page 10: " The Court does not annul or repeal the statute if it finds it in conflict with the Constitution.
It simply refuses to recognize it, and determines the rights of 24 the parties just as if such statute had no application. . . .
The validity of a statute is to be tested by the constitutional power of a legislature at the time of its enactment by that legislature, and, if thus tested, it is beyond the legislative power, it is not rendered valid, without re enactment, if later, by constitutional amendment, the necessary legislative power is granted.
I An after acquired power cannot, ex proprio vigore, validate a statute void 'When enacted '.
" However, it has been held that where an act is within the general legislative power of the enacting body, but is rendered unconstitutional by reason of some adventitious circumstance, as, for example, when a State legislature is prevented from regulating a matter by reason of the fact that the Federal Congress has already legislated upon that matter, or by reason of its silence is to be construed as indicating that there should be no regulation, the act does not need to be re enacted in order to be enforced, if this cause of its unconstitutionality is removed.
" For the former proposition, the decision in Newberry vs United States (1) and for the latter proposition the decision in John M. Wilkerson vs Charles A. Rahrer (2) are cited.
In Newberry 's Case the validity of the Federal Corrupt Practices Act of 1910, as amended by the Act of 1911, fixing the maximum sum which a candidate might spend to procure his nomination at a primary election or convention was challenged.
At the time of the enactment, the Congress had no power to make that law, but subsequently, by adoption of the 17th Amendment, it acquired the said power.
The question was whether an after acquired power could validate a statute which was void when enacted.
Mr. justice McReynolds delivering the opinion of the court states the principle at page 920 : " Moreover, the criminal statute now relied upon ante dates the 17th Amendment, and must be tested by powers possessed at time of its enactment.
An (1) ; ; (2) ; ; 25 after acquired power cannot, ex proprio vigore, validate a statute void when enacted.
" In Wilkerson 's Case (1) the facts were that in June 1890, the petitioner, a citizen of the United States and an agent of Maynard, Hopkins & Co., received from his principal intoxicating liquor in packages.
The packages were shipped from the State of Missouri to various points in the State of Kansas and other States.
On August 9, 1890, the petitioner offered for sale and sold two packages in the State of Kansas.
The packages sold were a portion of the liquor shipped by Maynard, Hopkins & Co. It was sold in the same packages in which it was received.
The petitioner was prosecuted for violating the Prohibitory Liquor Law of the State of Kansas; for, under the said law, "any person or persons who shall manufacture, sell or barter any in toxicating liquors, shall be guilty of a misdemeanor ".
On August 8, 1890, an Act of Congress was passed to the effect that intoxicating liquors transported into any State should upon arrival in such State be subject to the operation and effect of the laws of such State.
It will be seen from the aforesaid facts that at the time the State Laws were made, they were valid, but they did not operate upon packages of liquors imported into the Kansas State in the course of interstate commerce, for the regulation of inter State commerce was within the powers of the Congress; and that be fore the two sales in the Kansas State, the Congress made an Act making intoxicating liquors transported into a State subject to the laws of that State, with the result that from that date the State Laws operated on the liquors so transported.
Under those circumstances, the Supreme Court of the United States held : " It was not necessary, after the passage of the Act of Congress of August 8, 1890, to re enact the Law of Kansas of 1899, forbidding the sale of intoxicating liquors in that State, in order to make such State Law operative on the sale of imported liquors." The reason for the decision is found at page 578: (1) ; ; 4 26 This is not the case of a law enacted in the unauthorized exercise of a power exclusively confided to Congress, but of a law which it was competent for the State to pass, but which could not operate upon articles occupying a certain situation until the passage of the Act of Congress.
That Act in terms removed the obstacle, and we perceive no adequate ground for adjudging that a re enactment of the State Law was required before it could have the effect upon imported which it had always had upon domestic property.
A reference to these decisions brings out in bold relief the distinction between the two classes of cases referred to therein.
It will be seen from the two decisions that in the former the Act was Void from its inception and in the latter it was valid when made but it could not operate on certain articles imported in the course of inter State trade.
On that distinction is based the principle that an after acquired power cannot, ex proprio vigore, validate a statute in one case, and in the other, a law validly made would take effect when the obstruction is removed.
The same principle is enunciated in Carter vs Egg and Egg Pulp Marketing Board (1).
Under section 109 of the Australian Constitution " when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. " Commenting on that section, Latham, C. J., observed at page 573: " This section applies only in cases Where, apart from the operation of the section, both the Commonwealth and the State Laws which are in question would be valid.
If either is invalid ab initio by reason of lack of power, no question can arise under the section.
The word " invalid " in this section cannot be interpreted as meaning that a State law which is affected by the section becomes ultra vires in whole or in part.
If the Commonwealth law were repealed the State law would again become operative.
" We shall now proceed to consider the decisions of this Court to ascertain whether the said principles are (1) ; 27 accepted or departed from.
The earliest case is Keshavan Madhava Menon vs The State of Bombay (1).
There the question was whether a prosecution launched under the Indian Press (Emergency Powers) Act, 1931, before the Constitution could be continued after the Constitution was passed.
The objection taken was that the said law was inconsistent with fundamental rights and therefore was void.
In the context of the question raised, it became necessary for the Court to consider the impact of article 13(1) on the laws made before the Constitution.
The Court, by a majority, held that article 13(1) of the Indian Constitution did not make existing laws which were inconsistent with fundamental rights void ab initio, but only rendered such laws ineffectual and void with respect to the exercise of the fundamental rights on and after the date of the commencement of the Constitution and that it had no retrospective effect.
Das, J., as he then was, observed at page 233: " It will be noticed that all that this clause declares is that all existing laws, in so far as they are inconsistent with the provisions of Part III shall, to the extent of such inconsistency, be void.
Every statute is prima facie prospective unless it is expressly or by necessary implications made to have retrospective operation.
" At page 234, the learned Judge proceeded to state: " They are not void for all purposes but they are void only to the extent they come into conflict with the fundamental rights.
In other words, on and after the commencement of the Constitution no existing law will be permitted to stand in the way of the exercise of any of the fundamental rights.
Therefore, the voidness of the existing law is limited to the future exercise of the fundamental rights. . .
Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution.
" At page 235, the same idea is put in different words thus : ". . . . .Article 13(1) only has the effect of (1) ; 28 nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to the exercise Of fundamental rights on and after the date of the commencement of the Constitution.
" At page 236, the learned Judge concludes: " So far as the past acts are concerned the law exists, notwithstanding that it does not exist with respect to the future exercise of fundamental rights." Mahajan, J., as he then was, who delivered a separate judgment, put the same view in different phraseology at page 251 : " The effect of Article 13(1) is only prospective and it operates in respect to the freedoms which are infringed by the State subsequent to the coming into force of the Constitution but the past acts of a person which came within the mischief of the law then in force are Dot affected by Part III of the Constitution." The learned Judge, when American law was pressed on him in support of the contention that even the pre Constitution law was void, observed thus, at page 256 : " It is obvious that if a statute has been enacted and is repugnant to the Constitution, the statute is void since its very birth and anything done under it is also void and illegal.
The courts in America have followed the logical result of this rule and even convictions made under such an unconstitutional statute have been set aside by issuing appropriate writs.
If a statute is void from its very birth then anything done under it, whether closed, completed, or inchoate, will be wholly illegal and relief in one shape or another has to be given to the person affected by such an unconstitutional law.
This rule, however, is not applicable in regard to laws which were existing and were constitutional according to the Government of India Act, 1935.
Of course, if any law is made after the 25th January, 1950, which is repugnant to the Constitution, then the same rule will have to be followed by courts in India as is followed in America and even convictions made under such an unconstitutional law 29 will have to be set aside by resort to exercise of powers given to this court by the Constitution.
" Mukherjea J., as he then was, in Behram Khurshed Pesikaka vs The State of Bombay (1) says at page 652 much to the same effect: " We think that it is not a correct proposition that constitutional provisions in Part 11I of our Constitution merely operate as a check on the exercise of legislative power.
It is axiomatic that when the lawmaking power of a State is restricted by a written, fundamental law, then any law enacted and opposed to the fundamental law is in excess of the legislative authority and is thus a nullity.
Both these declarations of unconstitutionality go to the root of the power itself and there is no real distinction between them.
They represent but two aspects of want of legislative power.
The legislative power of Parliament and the State Legislatures as conferred by articles 245 and 246 of the Constitution stands curtailed by the fundamental rights chapter of Constitution.
A mere reference to the provisions of article 13(2) and articles 245 and 246 is sufficient to indicate that there is no competency in Parliament or a State Legislature to make a law which comes into clash with Part 111 of the Constitution after the coming into force of the Constitution.
" The effect of the decision may be stated thus: The learned judges did not finally decide the effect of article 13(2) of the Constitution on post Constitution laws for the simple reason that the impugned law was a pre Constitution one.
article 13(1) was held to be prospective in operation and therefore did not affect the preexisting laws in respect of things done prior to the Constitution.
As regards the post Constitution period, article 13(1) nullified or rendered all inconsistent existing laws ineffectual, nugatory or devoid of any legal force or binding effect with respect to the exercise of the fundamental rights.
So far as the past acts were concerned, the law existed, notwithstanding that it did not exist with respect to the future exercise of the said rights.
As regards the pre Constitution laws, (1) 30 this decision contains the seed of the doctrine of eclipse developed by my Lord the Chief Justice in Bhikaji Narain Dhakras vs The State of Madhya Pradesh (1) where it was held that as the pre Constitution law was validly made, it existed for certain purposes even during the post Constitution period.
This principle has no application to post Constitution laws infringing the fundamental rights as they would be ab initio void in toto or to the extent of their contravention of the fundamental rights.
The observations of the learned judges made in the decision cited above bring out the distinction between pre and post Constitution laws which are repugnant to the Constitution and the impact of article 13 on the said laws.
In Behram Khurshed Pesikaka 's Case(2), this Court considered the legal effect of the declaration made ' in the case of The State of Bombay vs F. N. Balsara (3) that clause (b) of section 13 of the Bombay Prohibition Act (Bom.
XXV of 1949) is void under article 13(1) of the Constitution in so far as it affects the consumption or use of liquid medicinal or toilet preparations containing alcohol and held that it was to render part of section 13(b) of the Bombay Prohibition Act inoperative, ineffective and ineffectual and thus unenforceable.
Bhagwati, J., at page 620, cited all the relevant passages from textbooks on Constitutional Law and, presumably, accepted the view laid down therein to the effect that an unconstitutional Act in legal contemplation is as though it had never been passed.
Jagannadhadas, J., at page 629, noticed the distinction between the scope of cls.
(1) and (2) of article 13 of the Constitution.
After citing a passage from " Willoughby on Constitution of the United States ", the learned Judge observed : " This and other similar passages from other treatises 'relate, however, to cases where the entire legislation is unconstitutional from the very commencement of the Act, a situation which falls within the scope of article 13(2) of our Constitution.
They do not directly cover a situation which falls within (1) ; (2) (3)[1951] S.C. R. 682.
31 article 13(1). . .
The question is what is the effect of article 13(1) on a pre existing valid statute, which in respect of a severable part thereof violates fundamental rights.
Under article 13(1) such part is, " void " from the date of the commencement of the Constitution, while the other part continues to be valid.
Two views of the result brought about by this voidness are possible, viz., (1) the said severable part becomes unenforceable, while it remains part of the Act, or (2) the said part goes out of the Act and the Act stands appropriately amended pro tanto.
The first is the view which appears to have been adopted by my learned brother, Justice Venkatarama Aiyar, on the basis of certain American decisions.
I feel inclined to agree with it.
This aspect, however, was not fully presented by either side and was only suggested from the Bench in the course of arguments.
We have not had the benefit of all the relevant material being placed before us by the learned advocates on either side.
The second view was the basis of the arguments before us.
It is, therefore, necessary and desirable to deal with this case on that assumption." This passage shows that his opinion though a tentative one was that the severable part became unenforceable while it remained part of the Act.
But the learned Judge made an incidental observation that the American view applied to cases that fall within the scope of article 13(2) of the Constitution, i.e., the entire legislation would be unconstitutional from the very commencement of the Act.
Venkatarama Aiyar, J., founded his decision on a broader basis.
At page 639, the learned Judge observed: " Another point of distinction noticed by American jurists between unconstitutionality arising by reason of lack of legislative competence and that arising by reason of a check imposed on a competent Legislature may also be mentioned.
While a statute passed by a Legislature which had no competence cannot acquire validity when the Legislature subsequently acquires competence, a statute which was within the competence of the Legislature at the time of its enactment but which infringes a, constitutional 32 prohibition could 'be enforced 'Proprio vigore when once the prohibition is removed.
" On the basis of this distinction, the learned Judge held that article 13(1) of the Constitution only placed a check on a competent legislature and therefore the word " void " in that article meant " relatively void ", i.e., the law only condemned the Act as wrong to individuals and refused to enforce it against them.
In support of the said conclusion the learned Judge cited a passage from " Willoughby on the Constitution of the United States ".
A comparison of the passage cited with that in the text book discloses that one important sentence which makes all the difference to the legal position is omitted by mistake and that sentence is " An after acquired power cannot ex proprio vigore validate a statute void when enacted ".
The second paragraph in the extract on which the learned Judge placed reliance and also the decision relied upon, by him did not support his conclusion.
As already stated, the decision and the passage dealt not with a case where the State had no power to make the law, but with a case where the law lay dormant till a law of the Federal Congress removed the conflict between the State Law and the Federal Law.
That case may by analogy be applied to article 13(1) in respect of laws validly made before the Constitution but cannot be invoked in the case of a statute which was void when enacted.
By a subsequent order, this Court granted the review and reopened the case to enable the :Bench to obtain the opinion of a larger Bench on the Constitutional points raised in the judgment delivered by the learned Judges.
That matter came up before a Con stitutional Bench, and Mahajan, C. J., who was a party to the decision in Keshavan Madhava Menon 's Case (1) explained the majority view therein on the meaning of the word " void " in article 13(1) thus, at page 651: " The majority however held that the word "void" in article 13(1), so far as existing laws Were concerned, could not be held to obliterate them from the statute book, and could not make such laws void altogether, because in its opinion article 13 had not been given any (1) ; 33 retrospective effect.
The majority however held that after the coming into force of the Constitution the effect of article 13(1) on such repugnant laws was that it nullified them, and made them ineffectual and nugatory and devoid of any legal force or binding effect.
It was further pointed out in one of the judgments representing the majority view, that the American rule that if a statute is repugnant to the Constitution the statute is void from its birth, has no application to cases concerning obligations incurred or rights accrued in accordance with an existing law that was constitutional in its inception, but that if any law was made after the 26th January, 1950, which was repugnant to the Constitution, then the same rule shall have to be followed in India as followed in America.
The result therefore of this pronouncement is that the part of the section of an existing law which is unconstitutional is not law, and is null and void.
For determining the rights and obligations of citizens the part declared void should be notionally taken to be obliterated from the section for all intents and purposes, though it may remain written on the statute book and be a good law when a question arises for determination of rights and obligations incurred prior to 26th January, 1950, and also for the determination of rights of persons who have not been given fundamental rights by the Constitution.
Thus, in this situation, there is no scope for introducing terms like " relatively void " coined by American Judges in construing a Constitution which is not drawn up in similar language and the implications of which are not quite familiar in this country.
" The learned Judge, as we have already pointed out, rejected the distinction made by Venkatarama Aiyar, J., between lack of legislative power and the abridgment of the fundamental rights.
Though that question did not directly arise, the learned Judge expressed his view on the scope of article 13(2) at page 653 thus: " The authority thus conferred by Articles 245 and 246 to make laws subjectwise in the different Legislatures is qualified by the declaration made in 5 34 article 13(2).
That power can only be exercised subject to the prohibition contained in article 13(2).
On the construction of article 13(2) there was no divergence of opinion between the majority and the minority in Keshava Madhava Menon vs The State of Bombay (supra).
It was only on the construction of article 13(1) that the difference arose because it was felt that that article could not retrospectively invalidate laws which when made were constitutional according to the Constitution then in force.
" Das, J., as he then was, in his dissenting judgment differed from the majority on other points but does not appear to have differed from the aforesaid views expressed by Mahajan, C. J., as regards the scope of Keshava Madhava Menon 's Case on the meaning of the word " void " in article 13(1).
This judgment is therefore an authority on two points and contains a weighty observation on the third : (i) when the law making power of a State is restricted by written fundamental law, then any law opposed to the fundamental law is in excess of the legislative authority and is thus a nullity; (ii) even in the case of a statute to which article 13(1) applies, though the law is on the statute book and be a good law, when a question arises for determination of rights and obligations incurred prior to January 26, 1950, the part declared void should be nationally taken to be obliterated from the section for all intents and purposes ; and (iii) on the construction of article 13(2), the law made in contravention of that clause is a nullity from its inception.
The next case is a direct one on the point and that is Sag hir Ahmad vs The State.
of U. P. (1).
There, the U.P.Road Transport Act (11 of 1951) was passed enabling the State to run stage carriage service on a route or routes to the exclusion of others.
Under that Act, the State Government made a declaration extending the Act to a particular area and issued a notification setting out what purported to be a scheme for the operation of the stage carriage service on certain routes.
At the time the said Act was passed, the State had no such power to deprive a citizen of his (1) ; 35 right to carry on his transport service.
But after the Act, article 19(1) was amended by the Constitution (First Amendment)Act, 1951, enabling the State to carry on any trade or business either by itself or through, corporations owned or controlled by the State to the.
exclusion of private citizens wholly or in part.
One of the questions raised was whether the amendment of the Constitution could be invoked to validate the earlier legislation.
The Court held that the Act when passed was unconstitutional and therefore it was still born and could not be vitalised by the subsequent amendment of the Constitution removing the constitutional objections but must be re enacted.
At page 728, Mukherjea, J., as he then was, who delivered the judgment of the Court, has given the reasons for the said view : " As Professor Cooley has stated in his work on Constitutional Limitations (Vol. 1, page 304 note.) " a statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re enacted ".
We think that this is sound law and our conclusion is that the legislation in question which violates the fundamental right of the appellants under article 19(1) (g) of the Constitution and is not shown to be protected by clause (6) of the article, as it stood at the time of the enactment, must be held to be void under article 13(2) of the Constitution.
" This is a direct authority on the point, without a dis senting voice, and we are bound by it.
The decision given in Bhikaji Narain 's Case, (1) is strongly relied upon by the learned Advocate General in support of his contention.
Shortly stated, the facts in that case were: Before the Constitution, the C. P. & Berar Motor Vehicles (Amendment) Act, 1947 (C. P. III of 1948) amended the (Central Act IV of 1939) and conferred extensive powers on the Provincial Government including the power to create a monopoly of the motor transport business in its favour to the exclusion of all motor transport operators.
It was contended by the affected parties that by reason of article 13(1) of the Constitution, (1) ; 36 the Act became void.
On behalf of the State, it was argued that the Constitution (First Amendment) Act, 1951, and the Constitution (Fourth Amendment) Act, 1955, had the effect of removing the inconsistency and the Amendment Act III of 1948 became operative again.
This Court unanimously accepted the contention of the State.
This decision is one given on a construction of article 13(1) of the Constitution and it is no authority on the construction and scope of article 13(2) of the Constitution.
The reason for the decision is found in the following passages in the judgment, at page 598: " . . . . on and after the commencement of the Constitution the existing law, as a result of its becoming inconsistent with the provisions of article 19(1)(g) read with clause (6) as it then stood, could not be permitted to stand in the way of the exercise of that fundamental right.
Article 13(1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether from the statute book . . .
In short, article 13(1) had the effect of nullifying or rendering the existing law which had become inconsistent with article 19(1) (g) read with clause (6) as it then stood ineffectual, nugatory and devoid of any legal force or binding effect only with respect to the exercise of the fundamental right on and after the date of the commencement of the Constitution.
Therefore, between the 26th January, 1950, and 18th June, 1951, the impugned Act could not stand in the way of the exercise of the fundamental right of a citizen under Article 19(1)(g).
The true position is that the impugned law became, as it were, eclipsed, for the time being, by the fundamental right The American authorities refer only to post Constitution laws which were inconsistent with the provisions of the Constitution.
Such laws never came to life but were still born as it were Such laws were not dead for all purposes.
They existed for the purposes of pre Constitution rights and liabilities and they remained operative, even after the Constitution, as against non citizens.
It is only as 37 against the citizens that they remained in a dormant or moribund condition." The aforesaid passages are only the restatement of the law as enunciated in Keshavan Madhava Menon 's a Case(1) reaffirmed in Pesikaka 's Case (2) and an extension of the same to meet a different situation.
A pre Constitution law, stating in the words of Das, J., as he then was, exists notwithstanding that it does not exist with respect to the future exercise of the fundamental rights.
That principle has been extended in this decision, by invoking the doctrine of eclipse.
As the law existed on the statute book to support pre Constitution acts, the Court held that the said law was eclipsed for the time being by one or other of the fundamental rights and when the shadow was removed by the amendment of the Constitution, the impugned Act became free from all blemish or infirmity.
The Legislature was competent to make the law with which Pesikaka 's Case (2) was concerned at the time it was made.
It was not a case of want of legislative power at the time the Act was passed, but one where in the case of a valid law supervening circumstances cast a cloud.
To the other class of cases to which article 13 (2) will apply, the views expressed by the American authorities, by Mahajan, J., as he then was, in Pesikaka 's Case, and by Mukherjea, J., as he then was, in Saghir Ahmad 's Case (3 ) directly apply.
To the facts in Bhikaji Narain 's Case, (4) the principle laid down in Keshavan Madhava Menon 's Case is attracted.
But it is said that the observations of the learned Judges are wide enough to cover the case falling under article 13 (2) of the Constitution and further that a logical extension of the principle laid down would take in also a case falling under article 13(2).
The first contention is based upon the following passage: But apart from this distinction between pre Constitution and post Constitution laws, on which however we need not rest our decision, it must be held that these American authorities could have no application to our Constitution.
All laws existing or future (1) ; (2) , (3) ; (4) ; 38 which are inconsistent with the provisions of Part III of our Constitution, are by express provisions of article 13 rendered void to the extent of such inconsistency.
Such laws were not dead for all purposes.
They existed for the purposes of pre Constitution rights and liabilities and they remained operative, even after the Constitution, as against non citizens.
It is only as against the citizens that they remained in a dormant or moribund condition.
" The first part of the said observation states nothing more than the plain import of the provisions of article 13(1) and (2), namely, that they render laws void only I to the extent ' of such inconsistency.
The second part of the observation directly applies only to a case covered by article 13(1), for the learned Judges say that the laws exist for the purposes of pre Constitution rights and liabilities and they remain operative even after the Constitution as against non citizens.
The said observation could not obviously apply to post Constitution laws.
Even so, it is said that by a parity of reasoning the post Constitution laws are also void to the extent of their repugnancy and therefore the law in respect of non citizens will be oil the statute book and by the application of the doctrine of eclipse, the same result should flow in its case also.
There is some plausibility in this argument, but it ignores one vital principle, viz., the existence or the non existence of legislative power or competency at the time the law is made governs the situation.
There is no scope for applying the doctrine of eclipse to a case where the law is void ab initio in whole or in part.
That apart, in the present case we do not base our decision on that article
31(1) infringed by the Act, applies to all persons irrespective of whether they are citizens or non citizens, and.
therefore the entire law was void ab initio.
That judgment, therefore, does not support the respondent as it has bearing only on the construction of article 13(1) of the Constitution.
In Ram Chandra Palai vs State of Orissa (1), this Court followed the decision in Bhikaji Narain 's Case (2) in the case of a pre Constitution Act.
In Pannalal (1) (2) ; 39 Binjraj vs Union of India (1), Bhagwati, J., quoted, with approval the extract from Keshavan Madhava Menon 's Case (2), wherein it was held that article 13(1) has only the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory or devoid of any legal force or binding effect only with respect to the fundamental rights on or after the commencement of the Constitution.
The learned Advocate General relied upon certain decisions in support of his contention that the word " void " in articles 13(1) and 13 (2) means only " unenforceable " against persons claiming fundamental rights, and the law continues to be in the statute book irrespective of the fact that it was made in infringement of the fundamental rights.
The observations of Mukherjea, J., as he then was, in Chiranjit Lal Chowdhuri vs The Union of India (3) are relied on and they are: " Article 32, as its provisions show, is not directly concerned with the determination of constitutional validity of particular legislative enactments.
What it aims at is the enforcing of fundamental rights guaranteed by the Constitution, no matter whether the necessity for such enforcement arises out of an action of the executive or of the legislature. . . . .
The rights that could be enforced under article 32 must ordinarily be the rights of the petitioner himself who complains of infraction of such rights and approaches the court for relief.
" He also relies upon the, decision of Das, J., as he then was, in The, State of Madras vs Srimathi ChamPakam Dorairajan (4), wherein the learned Judge states thus, at page 531 : " The directive principles of the State Policy, which by article 37 are expressly made unenforceable by a Court, cannot override the provisions found in Part III which, notwithstanding other provisions, are expressly made enforceable by appropriate Writs, Orders or directions under article 32." Basing his argument on the aforesaid two observations, (1) ; (2) ; (3) ; , 899.
(4) ; , 40 it is contended that in the case 'of both the directive principles and the fundamental rights, it must be held that the infringement of either does not invalidate the law, but only makes the law unenforceable.
This argument, if we may say so, mixes up the Constitutional invalidity of a statute with the procedure to be followed to enforce the fundamental rights of an individual.
The Constitutional validity of a statute depends upon the existence of legislative power in the State and the right of a person to approach the Supreme Court depends upon his possessing the fundamental right, i.e., he cannot apply for the enforcement of his right unless it is infringed by any law.
The cases already considered supra clearly establish that a law, whether pre Constitution or post Constitution, would be void and nugatory in so far as it infringed the fundamental rights.
We do not see any relevancy in the reference to the directive principles; for, the legislative power of a State is only guided by the directive principles of State Policy.
The directions, even if disobeyed by the State, cannot affect the legislative power of the State, as they are only directory in scope and operation.
The result of the aforesaid discussion may be summarized in the following propositions: (i) whether the Constitution affirmatively confers power on the legislature to make laws subject wise or negatively prohibits it from infringing any fundamental right, they represent only two aspects of want of legislative power; (ii) the Constitution in express terms makes the power of a legislature to make laws in regard to the entries in the Lists of the Seventh Schedule subject to the other provisions of the Constitution and thereby circum cribes or reduces the said power by the limitations laid down in Part III of the Constitution; (iii) it follows from the premises that a law made in derogation or in excess of that power would be ab initio void wholly or to the extent of the contravention as the case may be ; and (iv) the doctrine of eclipse can be invoked only in the case of a law valid when made, but a shadow is cast on it by supervening constitutional inconsistency or,supervening existing statutory 41 inconsistency; when the shadow is removed, the impugned Act is freed from all blemish or infirmity.
Applying the aforesaid principles to the present case, we hold that the validity of the Act could not be tested on the basis of the Constitution (Fourth Amendment) Act, 1955, but only on the terms of the relevant Articles as they existed prior to the Amendment.
We shall now proceed to consider the first contention of Mr. Nambiar.
He contends that the Motor Vehicles (Amendment) Act (100 of 1956) passed by Parliament was wholly repugnant to the provisions of the U. P. Act and therefore the law became void under the provisions of article 254(1) of the Constitution, with the result that at the present time there is no valid law whereunder the State can prohibit the appellants exercising their fundamental right under the Constitution, namely, carrying on the business of motor transport.
Mr. Naunit Lal bases his case on the proviso to article 254(2) of the Constitution rather than on cl.
(1) thereof.
He contends that by reason of the Amending Act, the U. P. Act was repealed in toto; and because of Section 68B, the operation of the provisions of the General Clauses Act saving things done under the repealed Act was excluded.
The learned Advocate General attempted to meet the double attack by pressing on us to hold that there was no repugnancy at all between the provisions of the Central Act and the U. P. Act and therefore the U. P. Act had neither become void nor was repealed by necessary implication by the Central Act.
We shall now examine the provisions of article 254(1) and 254(2).
Article 254: "(1) If any provisions of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of 6 42 such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his as sent, prevail, in that State.
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
" Article 254(1) lays down a general rule.
Clause (2) is an exception to that Article and the proviso qualifies the exception.
If there is repugnancy between the law made by the State and that made by Parliament with respect to one of the matters enumerated in the Concurrent List, the law made by Parliament shall prevail to the extent of the repugnancy and the law made by the State shall, to the extent of such repugnancy, be void.
Under cl.
(2), if the Legislature of a State makes a provision repugnant to the provisions.
of the law made by Parliament, it would prevail if the legislation of the State received the assent of the President.
Even in such a case, Parliament may subsequently either amend, vary or repeal the law made by the Legislature of a State.
In the present case, the Uttar Pradesh Legislative Assembly, after obtaining the assent of the President on April 23, 1955, passed the U. P. Act.
Parliament subsequently passed the Motor Vehicles (Amendment) Act (100 of 1956).
Therefore, both the clauses of article 254 would apply to the situation.
The first question is whether the provisions of the Union law, i.e., the Motor Vehicles (Amendment) Act (100 of 1956), are repugnant to the provisions of the U. P. Act and if so to 43 what extent.
Before we proceed to examine the provisions of the two Acts, it may be convenient to notice the law pertaining to the rule of repugnancy.
Nicholas in his Australian Constitution, 2nd Edition, page 303, refers to three tests of inconsistency or repugnancy : "(1) There may be inconsistency in the actual terms of the competing statutes; (2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court is intended to be a complete exhaustive code; and (3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter.
" This Court in Ch.
Tika Ramji vs The State of Uttar Pradesh (1) accepted the said three rules, among others, as useful guides to test the question of repugnancy.
In Zaverbhai Amaidas vs The State of Bombay (2), this Court laid down a similar test.
At page 807, it is stated: " The principle embodied in section 107(2) and Article 254(2) is that when there is legislation covering the same ground both by the centre and by the Province, both of them being competent to enact the same, the law of the Centre should prevail over that of the State.
" Repugnancy between two statutes may thus be ascertained on the basis of the following three principles: (1) Whether there is direct conflict between the two provisions ; (2) Whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature; and (3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field.
We shall now examine the provisions of both the Acts in some detail in order to ascertain the extent of the repugnancy between them.
The Scheme of (1) ; (2) [1955] 1 S.C.R. 799.
44 the U. P. Act may be summarized thus: Under the U. P. Act " State Road Transport Service " is defined to mean transport service by a public service vehicle owned by the State Government.
Under section 3: " Where the State Government is of the opinion that it is necessary in the interests of the general public and for subserving the common good, or for maintaining and developing efficient road transport system so to direct, it may, by notification in the official Gazette declare that the road transport services in general, or any particular class of such service on any route or portion thereof as may be specified, shall be run and operated exclusively by the State Government, or by he state Government in conjunction with railways or be run and operated partly by the State Government and partly by others under and in accordance with the provisions of the Act".
After the publication of the notification under section 3, the State Government or, if the State Government so directs, the Transport Commissioner publishes in such manner as may be specified a scheme as to the State Road Transport Service providing for all or any of the matters enumerated in cl (2) of section 4.
Clause (2), of section 4 directs that, among others, the scheme should 'provide the particulars of the routes or portions thereof over which and the date on which the State Transport Service will commence to operate, the roads in regard to which private persons may be allowed to operate upon, the routes that will be 'served by the State Government in conjunction with railways , the curtailment of the routes covered by the existing permits or transfer of the permits to other route or routes.
Section 5 enjoins the Transport Commissioner to give notice to the permit holder requiring him to lodge a statement in writing whether he agrees to the transfer of the permit and in cl.
(2) thereof, it is prescribed that in case he accepts the transfer, he is nit entitled to any compensation, but if he does not agree to the transfer,his permit will be cancelled subject to his right to get compensation under the Act.
Under section 6 any person whose interests are affected may within 30 days from the publication of the scheme, file objections 45 on it before the Transport 'Commissioner who shall forward them to the Board constituted under section 7, consisting of the Commissioner of a Division, Secretary to Government in the Transport Department and the Transport Commissioner.
The Board shall consider the objections, if any, forwarded under section 6 and may either confirm, modify or alter the scheme.
The Scheme so confirmed or modified or altered under section 7 shall be published in the Official Gazette.
Any scheme published under section 8 may at any time be cancelled or modified or altered by the State Government.
Section 10 gives the consequences of the publication under section 8.
Section 11 provides compensation for premature cancellation of permits or curtailment of route or routes, as may be determined in accordance with the principles specified in Schedule 1.
In Schedule 1, compensation is payable as follows: " (1) For every complete month or Rupees one part of a month exceeding fifteen days of hundred.
the unexpired period of the permit.
(2) For part of a month not exceed Rupees ing fifteen days of the unexpired fifty.
period of a permit.
Provided always that the amount of compensation shall in no case be less than rupees two hundred.
" Section 12 authorises the State Government, in a case where the permit has been cancelled, to purchase the motor vehicle covered by it if the holder of the permit offers to sell, upon terms and conditions laid down in Schedule 11 provided the vehicle is of the type of manufacture and model notified by the State Government and provided secondly that the vehicle is mechanically in a sound condition or otherwise declared fit by the Transport Commissioner or his nominee.
Sections 13 to 18 provide for a State Machinery for the development of motor transport industry.
Sections 19 to 22 are provisions which are consequential in nature.
Shortly stated, under the U. P. Act the State Government initiate a scheme providing for the nationalization of the road transport in whole or in part; the objections filed by the persons affected by the scheme are heard by a 46 Board of three officers appointed by the State Government; the Board after hearing the objections may confirm, modify or alter the scheme; the scheme so confirmed may be cancelled, modified or altered by ,the State Government by following the same procedure adopted for framing the original scheme; and the holders of permits cancelled may be given new ' permits if they choose to accept and if not they will be paid such compensation as prescribed under the Act.
Under the Amendment Act 100 of 1956, whereby a new chapter was inserted in the of 1939, the procedure prescribed is different.
Under section 68 A of that Act, 'State Transport Undertaking ' is defined to mean any undertaking providing road transport service, where such undertaking is carried on by, (i) the Central Government or a State Government; (ii) any Road Transport Corporation established under section 3 of the Road Transport Corporation Act, 1950; (iii) the Delhi Transport Authority established under section 3 of the Delhi Road Transport Authority Act, 1950; and (iv) any municipality or any corporation or company owned or controlled by the State Government.
Under section 68C, the State Transport Undertaking initiates a scheme if it is of opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport service in general, or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State Transport Undertaking, whether to the exclusion complete or partial, of other persons or otherwise.
Section 68D says that any person affected by the Scheme may file objections to the said Scheme before the State Government; the State Government may, after considering the objections and after giving an opportunity to the objectors or their representatives and the representatives of the State Transport Undertaking to be heard in the matter, approve or modify the Scheme.
Any Scheme published may at any time be cancelled or modified by the State Transport Undertaking following the same procedure; for the purpose of giving effect 47 to the Scheme, the Regional Transport Authority, inter alia, may cancel the existing permits or modify the terms of the existing permits.
Section 68G lays down the principles and method of determination of compensation.
Under that section compensation is, payable for every completed month or part of a month exceeding fifteen days of the unexpired period of the permits at Rs. 200 and for part of a month not exceeding fifteen days of the unexpired period of the permit at Rs. 100.
Under the Amending Act, the gist of the provisions is that the Scheme is initiated by the State Transport Undertaking carried on by any of the four institutions mentioned in section 68A, including the State Government; objections are filed by the affected parties to the Scheme, the affected parties and the Undertaking are heard by the State Government, which, after hearing the objections, approves or modifies the Scheme.
There is no provision for transfer of permits to some other routes, or for the purchase of the buses by the State Government.
Compensation payable is twice that fixed under the U. P. Act.
One important thing to be noticed is that the U. P. Act is prospective, i. e., comes into force only from the date of the passing of the Amending Act and the procedure prescribed applies only to schemes that are initiated under the provisions of the U. P. Act.
A comparison of the aforesaid provisions of the U. P. Act and the Amending Act indicates that both the Acts are intended to operate, in respect of the same subject matter in the same field.
The unamended of 1939 did not make any provision for the nationalization of transport services, but the States introduced amendments to implement the scheme of nationalization of road transport.
Presumably, Parliament with a view to introduce a uniform law throughout the country avoiding defects found in practice passed the Amending Act inserting Chapter IV A in the .
This object would be frustrated if the argument that both the U. P. Act and the Amending Act should co exist in respect of schemes to be framed after the Amending Act, is accepted.
Further the authority to initiate 48 the scheme, the manner of doing it, the authority to hear the objections, the principles regarding payment of compensation under the two Acts differ in import ant details from one another.
While in the U. P. Act the scheme is initiated by the State Government, in the Amendment Act, it is proposed by the State Transport Undertaking.
The fact that a particular undertaking may be carried on by the State Government also cannot be a reason to equate the undertaking with the State Government; for under section 68A the undertaking may be carried on not only by the State Government but by five other different institutions.
The undertaking is made a statutory authority under the Amending Act with a right to initiate the scheme and to be heard by the State Government in regard to objections filed by the persons affected by the scheme.
While in the U. P. Act a Board hears the objections, under the Amending Act the State Government decides the disputes.
The provisions of the scheme, the principles of compensation and the manner of its payment also differ in the two Acts.
It is therefore manifest that the Amending Act occupies the same field in respect of the schemes initiated after the Amending Act and therefore to that extent the State Act must yield its place to the Central Act.
But the same cannot be said of the schemes framed under the U. P. Act before the Amending Act came into force.
Under article 254(1) " the law made by Parliament, whether passed before or after the law made by the Legislature of such State. . shall prevail and the law made by the legislature of the State shall, to the extent of the repugnancy, be void." Mr. Nambiar contends that, as the U. P. Act and the Amending Act operate in the same field in respect of the same subject matter, i. e., the nationalization of bus transport, the U. P. Act becomes void under article 254(1) of the Constitution.
This argument ignores the crucial words " to the extent of the repugnancy " in the said clause.
What is void is not the entire Act but only to the extent of its repugnancy with the law made by Parliament.
The identity of the field may relate to the pith and substance of the subject matter 49 and also the period of its. operation.
When both coincide, the repugnancy is complete and the whole of the State Act becomes void.
The operation of the Union Law may be entirely prospective leaving the State Law to be effective in regard to thing already, done.
Sections 68C, 68D and 68E, inserted by the Amending Act, clearly show that those sections are concerned only with a scheme initiated after the Amending Act came into force.
None of the sections, either expressly or by necessary implication, indicates that the schemes already finalised should be reopened and fresh schemes be framed pursuant to the procedure prescribed thereunder.
Therefore, under article 254(1), the law under the U. P. Act subsists to support the schemes framed thereunder and it becomes void only in respect of schemes framed under the Central Act.
A similar question arose in the context of the application of article 13(1) to a pre Constitution law which infringed the fundamental rights given under the Constitution.
In Keshavan Madhava Menon 's Case (1), which we have referred to in a different context the question was whether Indian Press (Emergency Powers) Act, 1931, was void as infringing the provisions of article 13(1) of the Constitution;, and the Court held that the said Act was valid and would continue to be in force to sustain a prosecution launched for an act done be fore the Constitution.
In the words of Das, J., as he then was: " Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution." (p. 234).
" So far as the past acts are concerned the law exists, notwithstanding that it does not exist with respect to the future exercise of fundamental rights.", (pp. 235 236).
Article 13(1), so far as it is relevant to the present in quiry, is pari materia with the provisions of article 254(1) of the Constitution.
While under article 13(1) all the pre Constitution laws, to the extent of their inconsistency with the provisions of Part III, are void, under (1) ; 7 50 article 254(1) the State Law to the extent of its repugnancy to the law made by,Parliament is void.
If the pre Constitution law exists for the post Constitution period for all the past transactions, by the same parity of reasoning, the State law subsists after the making of the law by Parliament, for past transactions.
In this view, both the laws can co exist to operate during different periods.
The same decision also affords a solution to the question mooted, namely, whether if the law was void all the completed transactions fall with it.
Mahajan, J., as he then was, draws a distinction between a void Act and a repealed Act vis a vis their impact on past transactions.
At page 251, the learned Judge says: The expression is void " has no larger effect on the statute so declared than the word " repeal ".
The expression " repeal " according to common law rule obliterates a statute completely as if it had never been passed and thus operates retrospectively on past transactions in the absence of a saving clause or in the absence of provisions such as are contained in the Interpretation Act , 1889, or in the , while a provision in a statute that with effect from a particular date an existing law would be void to the extent of the repugnancy has no such retrospective operation and cannot affect pending pro secutions or actions taken under such laws.
There is in such a situation no necessity of introducing a saving clause and it does not need the aid of a legislative provision of the nature contained in the Interpretation Act or the .
To hold that a prospective declaration that a statute is void affects pending oases is to give it indirectly retrospective operation and that result is repugnant to the clear phraseology employed, in the various articles in of the Constitution.
" The said observation directly applies to a situation created by Art.254(1).
As the U. P. Act was void from the date of the Amending Act, actions taken before that date cannot be affected.
In whichever way it is looked at, we are satisfied that in the present case, the scheme already framed subsists and the 51 State law exists to sustain it even after the Parliament made the law.
In this view we reject the contention of Mr. Nambiar based on Art 254(1)of the Constitution.
The alternative argument advanced by Mr. Naunit Lal may now be considered.
It is not disputed that under the proviso to article 254(2), the Parliament can repeal the law made by the Legislature of a State and that Parliament can repeal the repugnant State law whether directly or by necessary implication.
Assuming that Parliament in the present case by enacting the Amending Act repugnant to the State law with respect to the same subject matter i. e., nationalization of road transport, impliedly repealed the State law, would it have the effect of effacing the scheme already made ? If there was a repeal, the provisions of section 6 of the of 1897 are directly attracted.
The relevant part of section 6 of the reads: " Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder.
" The express words used in clause (b)certainly take in the scheme framed under the repealed Act.
It was a thing duly done under the repealed Act.
But it is said that a comparison of the provisions of section 6 with those of section 24 would indicate that anything duly done excludes the scheme.
Section 24 deals with the continuation of orders, schemes, rules, forms or bye laws.
made or issued under the repealed Act.
But that section applies only to the repeal of a Central Act but not a State Act.
But the exclusion of the scheme is sought to be supported on the basis of the argument that in the case of a repeal of a Central Act, both the sections apply and, in that context, a reasonable 52 interpretation would be to exclude what is specifically provided for from the general words used in section 6.
Whatever justification there may be in that context, there is none when we are concerned with the repeal of a State Act to which section 24 does not apply.
In that situation, we have to look to the plain words of section 6 and ascertain whether those words are comprehensive enough to take in a scheme already framed.
We have no doubt that a scheme framed is a thing done under the repealed Act.
A further contention is raised on the basis of the provisions of section 68B to achieve the same result, namely, that the said section indicates a different intention within the meaning of section 6 of the .
Section 68B reads: " The provisions of this Chapter and rules and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in Chapter IV of this Act or in any other law for the time being in force or in any instrument having effect by virtue of any such law.
" This section embodies nothing more than the bare statement that the provisions of this Act should prevail notwithstanding the fact that they are inconsistent with any other law.
We have expressed our view that the provisions of this Act are prospective in.
operation and, therefore, nothing in those sections, which we have already analysed, is inconsistent with the provisions of the State law in regard to its operation with respect to.
transactions completed thereunder.
Assuming without deciding that the word 'instrument ' in section 68B includes a scheme, we do not see any provisions in the Act which are inconsistent with the scheme framed under the State Act.
The provisions starting from section 68C only contemplate a scheme initiated after the Amending Act came into force and therefore they cannot obviously be inconsistent with a scheme already framed under the State Act before the Amending Act came into force.
We, therefore, hold that section 6 of the saves the scheme framed under the U. P. Act.
The next contention of the learned Counsel Mr. 53 Nambiar, namely, that the scheme being a prescription for the future, it has a continuous operation even after the Amending Act became law, with the result that after the Amending Act, there was no valid law to sustain it, need not detain us; for, we have held that the State law subsists even after the Amending Act to sustain the things done under the former Act.
This leads us to the contention of the learned Advocate General that even if the Constitution (Fourth Amendment) Act, 1955, could not be relied on to sustain the validity of the U. P. Act, there was no deprivation of property of the appellants within the meaning of the decisions of this Court in The State of West Bengal vs Subodh Gopal Bose (1); Dwarkadas Shrinivas of Bombay vs The Sholapur Spinning & Weaving Co. Ltd. (2) and Saghir Ahmad 's Case (3).
Those cases have held that cls.
(1) and (2) of article 31 relate to the same subject matter and that, though there is no actual transfer of property to the State, if by the Act of the State, an individual has been substantially dispossessed or where his right to use and enjoy his property has been seriously impaired or the value of the property has been materially reduced, it would be acquisition or taking possession within the meaning of el.
(2) of the said Article.
After a faint attempt to raise this question, the learned Advocate General conceded that in view of the decision in Saghir Ahmad 's Case he could not support his argument to the effect that the State did not deprive the petitioners of their interest in a commercial undertaking.
In the said case, this Court held in express terms that U. P. Transport Act, 1951, which, in effect prohibited the petitioners therein from doing their motor transport business deprived them of their property or interest in a commercial undertaking within the meaning of article 31(2) of the Constitution.
Mukherjea J., as he then was, observed at page 728 : " It is not seriously disputed on behalf of the respondents that the appellants ' right to ply motor vehicles for gain is, in any event, an interest in a (1) ; (2) ; (3) ; 54 commercial undertaking.
There is no doubt also that the appellants have been deprived of this interest." The learned Judge proceeded to state at page 729 : " In view of that majority decision it must be taken to be settled now that clauses (1) and (2) of article 31 are not mutually exclusive in scope but should be, read together as dealing with the same subject, namely, the protection of the right to property by means of limitations on the State 's.powers, the deprivation contemplated in clause (1) being no other than acquisition or taking possession of the property referred to in clause (2).
The learned Advocate General conceded this to be the true legal position after the.
pronouncements of this Court referred to above.
The fact that the buses belonging to the appellants have not been acquired by the Government is also not material.
The property of a business may be both tangible and intangible.
Under the statute the Government may not deprive the appellants of their buses or any other tangible property but they are depriving them of the business of running buses on hire on public roads.
We think therefore that in these circumstances the legislation does conflict with the provisions of article 31(2) of the Constitution and as the requirements of that clause have not been complied with, it should be held to be invalid on that ground.
The above observations are clear and unambiguous and they do not give scope for further argument on the subject.
It follows that if the Act does not provide for compensation, the Act would be invalid being in conflict with the provisions of article 31(2) of the Constitution.
The next question is whether in fact the provisions of article 31(2) of the Constitution, before the Constitution (Fourth Amendment) Act, 1955, were complied with.
Under article 31(2) no property shall be taken possession of or acquired save for a public purpose and save by authority of law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, the compensation is to be determined and 55 given.
In The State of West Bengal vs Mrs. Bela Banerjee (1), Patanjali Sastri, C. J., has defined the meaning of the word I compensation ' at page 563, as under " While it is true that the legislature is given the discretionary power of laying down the principles which should govern the determination of the amount to be given to the owner for the property appropriated, such principles must ensure that what is determined as payable must be compensation, that is, a just equivalent of what the owner has been deprived of.
Within the limits of this basic requirement of full indemnification of the expropriated owner, the Constitution allows free play to the legislative judgment as to what principles should guide the determination of the amount payable.
Whether such principles take into account all the elements which make up the true value of the property appropriated and, exclude matters which are to be neglected, is a justiciable issue to be adjudicated by the Court.
, This, indeed, was not disputed.
" On the basis of the aforesaid principle, Mr. Nambiar contends that the U. P. Act does not provide for com pensation in the sense of giving the operator deprived of his interest a just equivalent of what he has been deprived of, or fix any principles to guide the determination of the amount payable.
The U.P. Act, the argument proceeds, does not provide at all for compensation payable in respect of the interest of the operator in a commercial undertaking, but only gives compensation for the unexpired period of the permit.
On the other hand, the learned Advocate General contends that the appellants would be entitled only to just equivalent of the interest that they are deprived of, namely, the interest in a commercial undertaking and that the cumulative effect of the provisions of the U. P. Act is that just equivalent of the said interest is given.
As it is common case that what the Act should give is just compensation for the interest of the operator in a commercial undertaking, we Shall now examine the provisions of the U. P. Act to ascertain whether it (1) ; 56 provides a quid pro quo for the interest the operator is deprived of The provisions of the U. P. Act relating to compensation pay usefully be read at this stage: Section 5 : " (1) Where the scheme published under section 4 provides for cancellation of any existing permit granted under Chapter IV of the , or for the transfer of such permit to any other route or routes the Transport Commissioner shall cause notice thereof to be served on the permit holder concerned and on any other persons to whom in his opinion special notice should be given.
The notice shall also require the permit holder to lodge a statement in writing within the period to be specified.
therein whether he agrees to the transfer of the permit.
(2) If the permit holder agrees to the transfer of his permit, he shall, provided the permit is actually so transferred ultimately, be not entitled to claim com pensation under section 11 but the transference of the permit shall be deemed to be in lieu of compensation and complete discharge therefor of the State Government.
Where, however, the permit holder does not agree to the transfer, the permit shall, without prejudice to the right of the permit holder to get compensation under the said section be liable to be cancelled.
" Section 11 :" (1) Where in pursuance of the Scheme published under section 8 any existing permit granted under Chapter IV of the , is or is deemed to have been cancelled or the route or routes covered by it are curtailed or are deemed to have been curtailed, the permit holder shall, except in cases where transfer of the permit has been agreed to under sub section (2) of section 5; be entitled to receive and be paid such compensation by the State Government for and in respect of the premature cancellation of the permit or, as the case may be, for curtailment of the route or routes covered by the permit as may be determined in accordance with the principles speci fied in Schedule I. (2) The compensation payable under this section shall be due as from the date of order of cancellation 57 of the permit or curtailment of the route covered by the permit.
(3) There shall be paid by the State Government on the amount of compensation determined under subsection (1) interest at the rate of two and one half per cent.
from the date of order of cancellation or curtailment of route to the date of determination of compensation as aforesaid.
(4)The compensation payable under this section shall be given in cash.
(5) The amount of compensation to be given in accordance with the provisions of sub section (1) shall be determined by the Transport Commissioner and shall be offered to the permit holder in full satisfaction of the compensation payable under this Act and if the amount so offered is not acceptable to the permit holder, the Transport Commissioner may within such time and in such manner as may be prescribed refer the matter to the District Judge whose decision in the matter shall be final and shall not be called in question in any Court.
" Section 12: " Where a permit granted under Chapter IV of the , has been cancelled or the route to which the permit relates has been curtailed in pursuance of the scheme published under section 8, the State Government may if the holder of the permit offers to sell, choose to purchase the motor vehicles covered by the permit upon terms and conditions laid down in Schedule II: Provided, firstly, that the vehicle is of a type, manufacture and model notified by the State Government; and Provided, secondly, that the vehicle is in a mechanically sound condition and is otherwise declared fit by the Transport Commissioner or his nominee.
SCHEDULE I. "Paragraph 1: The compensation payable under section 11 of the Act for cancellation of a contract carriage or stage carriage or public carrier 's permit under clause (e) of sub section (1) of section 10 of the 8 58 Act shall be computed for every ' vehicle covered by the permit as follows, namely: (1) For every complete month or part Rupees One Rupees of a month exceeding fifteen hundred days of one the unexpired period of the permit.
(2) For part of a month not exceeding Rupees fifteen days of the unexpired period fifty of a permit.
Provided always that the amount of compensation shall in no case be less than rupees two hundred.
Paragraph 2: The compensation payable under section 1 1 for curtailment of the route or routes covered by a stage carriage or public carrier permit under clause (d) of sub section (1) of section 10 of the Act shall be an amount computed in accordance with the following formula: Y x A R In this formula Y means the length in mile by which the route is curtailed.
A means the amount computed in accordance with Paragraph 1 above.
R means the total length in miles of the route covered by the permit.
" The aforesaid provisions constitute an integrated scheme for paying compensation to the person whose permit is cancelled.
The gist of the provisions may be stated thus: The scheme made by the State Government may provide for the cancellation of a permit, for curtailment of the route or routes or for transfer of the permit to other routes.
Where a transfer of the permit is accepted by the operator, he will not be entitled to any compensation; if he does not accept, compensation will be paid to him with interest in respect of the premature cancellation of the permit, or as the case may be for the curtailment of the route or routes covered by the permit.
The amount of compensation to be ' given shall be deter mined by the Transport Commissioner in accordance with the provisions of the Act, and if the amount so 59 offered is not acceptable to the permit holder, the Transport Commissioner may, within such time and in such manner as may be prescribed, refer the matter to the District Judge whose decision in the matter shall he final.
There is also a provision enabling the Government to purchase the motor vehicles covered by the permit, if the holder of the permit offers to sell and if the vehicles satisfy the specifications laid down in the Act.
The question is whether these provisions offer a quid pro quo for the interest of the petitioners in the commercial undertaking i.e., business in motor transport.
Let us examine the question from the standpoint of a business deal.
If the transport business is sold, the seller gets his value for the assets minus the liabilities and for his good will.
In the case of a scheme framed under the Act, the assets are left with the holder of the permit and under certain con ditions the State purchases them.
As the scheme is a phased one, it cannot be said, though there will be difficulties, that the assets cannot be sold to other operators.
If a permit is not cancelled but only transferred to another route, it may be assumed that if the transfer is voluntarily accepted by the permit holder, he is satisfied that the route given to him is as good as that on which he was doing his business.
On the other hand, if he chooses to reject the transfer of his permit to another route and takes compensation, the question is whether the compensation provided by section 11 is anything like an equivalent or quid pro quo for the interest in the commercial undertaking acquired by the State.
If cl.
(5) of section 11 had not been there, we would have had no hesitation to hold that a flat rate of Rs. 100 or less irrespective of the real loss to the holder would not be compensation within the meaning of article 31(2).
But, in our view, section 11(5) gives a different complexion to the entire question of compensation.
Under that clause., a permit holder aggrieved by the amount of compensation given by the Transport Commissioner may ask for referring the matter to the District Judge for his decision in regard to the adequacy of the compensation.
This clause is susceptible of both a strict as well as a 60 liberal interpretation.
If it is strictly construed, it may be held that what the District Judge can give as compensation is only that which the Transport Commissioner can, under the provisions of section 11(1) i. e., at the rates mentioned in the Schedule.
But a liberal interpretation, as contended by the learned Advocate General, can be given to that clause without doing violence to the language used therein and that interpretation will carry out the intention of the legislature.
If the jurisdiction of the District Judge relates only to the calculation of figures, the said clause becomes meaningless in the present context.
Section 11 read with the Schedule gives the rate of compensation, the rate of interest, the dates from which and up to which the said compensation is to be paid with interest.
The duty of calculating the said amount is entrusted to the Transport Commissioner who will be a fairly senior officer of the Government.
If he made any mistake in mere calculations, he would certainly correct it if the permit holder pointed out the mistake to him.
In the circumstances, is it reasonable to assume that the legislature gave a remedy for the permit holder to approach the District Judge for the mere correction of the calculated figures ? It is more reasonable to assume that the intention of the legislature was to provide prima facie for, compensation at flat rate and realising the inadequacy of the rule of thumb to meet varying situations, it entrusted the duty of the final determination of compensation to a judicial officer of the rank of a District Judge.
The provisions of section 11(5), in our view, are certainly susceptible of such.
an inter pretation as to carry out the intention of the legislature indicated by the general scheme of the provisions.
The crucial words are " if the amount so offered is not acceptable to the permit holder ".
The amount offered is no doubt the amount calculated in accordance with s.11(1).
But a duty is cast on the Transport Commissioner to refer the matter to the District Judge if the amount offered is not acceptable to the permit holder.
The word" acceptable" is of very wide connotation and it does not limit the objection only to the wrong calculation under section 11(1).
The permit holder may 61 not accept the amount on the ground that compensation offered is inadequate and is not a quid pro quo for the interest of which he is deprived.
It is therefore for the District Judge, on the evidence adduced by both the parties, to decide the proper compensation to be paid to him in respect of the right of which he is deprived by the cancellation of the permit.
The language of section 11(5) not only bears the aforesaid construction but also carries out the intention of the legislature, for it cannot be imputed to the legislature that it intended to deprive a valuable interest by giving a nominal amount to the permit holder.
Section 11(5) speaks of the time limit within which such reference may be made to the District Judge, but no such rule has been brought to our notice.
We hope and trust that, without standing on any such technicality, the Transport Commissioner, if so required, will refer the matter of compensation to the District Judge.
Having regard to the entire scheme of compensation provided by the Act, we hold that the Act provided for adequate compensation for the interest acquired within the meaning of article 31(1) of the Constitution.
It is said that out of the twenty five appeals appellants in thirteen appeals had accepted to take a transfer of the permits to different routes; but on behalf of the appellants it is denied that the acceptance was unequivocal and final.
They say that it was conditional and that, as a matter of fact, they have not been plying the buses on the transferred routes and indeed have been operating them only on the old routes.
In these circumstances, we cannot hold that the said appellants accepted the alternative routes.
If they or some of them choose to accept any alternative routes, they are at liberty to do so, in which event they will not be entitled to any compensation.
Lastly, the learned Counsel for the appellants contends that el.
(2) of section 3 of the U. P. Act infringes their fundamental rights under article 31(2) inasmuch as it prevents them from questioning the validity of the scheme on the ground that it is not for public purpose.
Section 3 reads: 62 (1) Where the State Government is of the opinion that it is necessary in the interest of the general public and for subserving the common good, or for maintaining and developing efficient road transport system so to direct, it may, by notification in the official Gazette declare that the road transport services in general, or any particular class of such service on any route or portion thereof as may be specified, shall be run and operated exclusively by the State Government, or by the State Government in conjunction with railways or be run and operated partly by the State Government and partly by others under and in accordance with the provisions of this Act.
(2) The notification under sub section (1) shall be conclusive evidence of the facts stated therein.
" The argument of the learned Counsel on the interpretation of this section appears to be an after thought; for the records do not disclose that the appellants attempted to question the said fact before the Government and they were precluded from doing so on the basis of cl.
(2) of section (3).
We are not, therefore, prepared to allow the appellants to raise the contention for the first time before us.
The last contention, which is special to Civil Appeal No. 429 of 1958, is that during the crucial period when the scheme of nationalization was put through, the appellant had no permit, it having been cancelled by the order of the appropriate tribunal; but subsequently, after the scheme was finalised, the said order was set aside by the Appellate Tribunal retrospectively and therefore the order of the State Government made behind the back of the appellant does not bind him.
The appellant 's permit was not renewed by the Regional Transport Authority.
Against the said order, he preferred an appeal to the State Transport Tribunal, which by an order dated September 6, 1956, allowed the appeal and directed that the appellant 's permit be renewed for three years beginning from November 1, 1953.
In disposing of the appear the State Transport Tribunal observed: " We are told that in the meantime this route has been notified and the Government buses are plying 63 on it.
The effect of this order will be that the appellant shall be deemed to be in possession of a valid permit and he shall have to be displaced after following the usual procedure prescribed by the U. P. Road Transport Services (Development) Act.
" Pursuant to their order, it appears that the Regional Transport Authority renewed his permit on October 11, 1956 with effect from November 1, 1953 to October 31, 1956.
In the circumstances, as the petitioner was not a permit holder when the Government made the order, no relief can be given to him in this appeal.
This order will not preclude the appellant in Civil Appeal No. 429 of 1958, if he has any right, to take appropriate proceedings against the State Government.
In the result, all the appeals are dismissed with one set of costs to the State of Uttar Pradesh.
Appeals dismissed.
| The writs referred to in article 226 are intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record and such act, omission or error or excess has resulted in manifest injustice.
However exten sive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the, deci sions impugned and decide what is the proper view to be taken or the order to be made.
The Motor Vehicles Act contains a complete and precise scheme for regulating the issue of permits, providing what matters are to be taken into consideration as relevant and prescribing appeals and revisions from subordinate bodies to higher authorities, and the issue or refusal of permits is solely within the discretion of the transport authorities; it is not a matter of right.
Where, in a dispute between two rival claimants for running through a particular route five buses, which each of them alleged he had purchased from a third person, the Central Road Traffic Board, Madras, after calling for a report from the Regional Transport Officer and considering several circumstances that had a material bearing on the case, restored the permanent permits which had been granted to one of the claimants, but on an application by the other claimant under article 226 of the Constitution to the High Court of Madras for a writ of certiorari quashing the orders of the Regional Transport Authority, the Central Road Traffic Board and the State of Madras, and for a writ of mandamus to the respondents to transfer, issue or grant 584 permanent permits to the petitioner, the High Court set aside the order of the Central Traffic Board, relying mainly on the fact that the petitioner 's title to the five buses had been established and directed the Regional Traffic Authority to grant to the petitioner permits in respect of the five buses: Held, that under the Motor Vehicles Act, the issue of a permit for a bus was not dependent on the ownership of the bus but on other considerations also, and as the Central Traffic Board had issued an order granting permits to one of the claimants after considering all circumstances the High Court acted erroneously in interfering with the Order of Traffic Board on an application under article 226 and in any event the order of the High Court issuing a direction to the Regional Transport Authority to grant permits to the other party was clearly in excess of its powers and jurisdiction.
The Motor Vehicles Act is a statute which creates new rights and liabilities and prescribes an elaborate procedure for their regulation.
No one is entitled to a permit as of right even if he satisfies all the prescribed conditions.
The grant of a permit is entirely within the discretion of the transport authorities and naturally depends on several circumstances which have to be taken into account.
|
on (Civil) No. 491 of 1991.
(Under Article 32 of the Constitution of India) WITH TRANSFER PETITION (CIVIL) No, 278 of 1991.
(Under Article 139 A(i) of the Constitution of India) WITH WRIT PETITION (CIVIL) Nos.
541,542 & 560/91 G. Ramaswamy, Attorney General, Altar Ahmad, Addl.
Solicitor General, Shanti Bhushan, Ram Jethmalani, P.P. Rao, Kapil Sibal, P.R.Krishnan, Ms. Indira Jaisingh, Ashok Desai, Hardev Singh, P.S. Poti, Danial Latifi, Rajinder Sachhar, M.K. Ramamurthy, R.K. Garg, S.K. Dholakia, Santosh Hegde, V.N. Ganpule, Tapas Ray, N.B. Shetye, Jayant Bhushan, Mohan Rao, Prashant Bhushan, Ms. Kamini Jaiswal, A.K. Srivastava, Manoj Wad, Ms. Rashmi Kathpalia, Ms. Nina Dikshit, E.M.S. Anam, Rajiv K. Garg, N.D. Garg, G.D. Sharma, Sudhir Walia, A.M. Khanwilkar, Mrs. Anil Katiyar, Ms. A. Subhashini, R.S. Suri, M. Veerappa, K.R. Nambiar, Harish Uppal (appeared in person) and P.H. Parekh for the appearing parties.
The Judgment of the Court was delivered by B.C. RAY, J.
These writ petitions raise certain consti tutional issues of quite some importance bearing on the construction of Articles 121 and 124 of the Constitution of India and of the "The Judges 25 (Inquiry) Act, 1968" even as they in the context in which they are brought, are somewhat unfortunate.
Notice was given by 108 members of the 9th Lok Sabha, the term of which came to an end upon its dissolution, of a Motion for presenting an Address to the President for the removal of Mr. Justice V.Ramaswami of this Court.
On 12th March, 1991, the motion was admitted by the then Speaker of the Lok Sabha who also proceeded to constitute a Committee consisting of Mr. Justice P.B. Sawant, a sitting Judge of this Court, Mr. Justice P.D. Desai, Chief Justice of the High Court of Bombay, and Mr. Justice O. Chinappa Reddy, a distinguished jurist in terms of Section 3(2) of The .
The occasion for such controversy as is raised in these proceedings is the refusal of the Union Government to act in aid of the decision of the Speaker and to decline to notify that the services of the two sitting Judges on the Committee would be treated as "actual service" within the meaning of Para 11(b) (i) of of the II Schedule to the Constitu tion.
It is said that without such a notification the two sitting Judges cannot take time off from theft court work.
The Union Government seeks to justify its stand on its understanding that both the motion given notice of by the 108 Members of the Lok Sabha for presenting an Address to the President for the removal of the Judge concerned as well as the decision of the Speaker of the 9th Lok Sabha to admit the motion and constitute a Committee under the provisions of the have lapsed with the dissolution of the 9th Lok Sabha.
Constitutional issues of some importance, therefore, arise as to the constitutional and the legal position and status of a Motion for the removal of a Judge under a law made pursuant to Article 124(5) of the Constitution and as to whether the Doctrine of Lapse would apply to such a Motion upon the dissolution of the Lok Sabha and whether, in view of the contention that such motions for removal, im peachment etc.
of holders of high constitutional offices are in their very nature politically introduced, debated and decided in the Houses of Parliament and not elsewhere, the matters arising out of or relating to a Motion for removal of a Judge in either House of the Parliament are at all justiciable before courts of law.
It is also urged that even if these issues have some degree of adjudicative disposition and involve some justiciable areas, the Court should decline to exercise jurisdiction as its decision and its writ might become infructous in view of the fact that in the ultimate analysis, the final arbiter whether at all any Address is to be presented rests exclusively with the Houses of Parliament and which, are wholly outside the purview of the Courts.
The foregoing serves to indicate broadly the com plexities of the constitutional issues on which the Court is invited to pronounce and, as in all constitutional litiga tion, the views inevitably tend to reflect a range of policy options in constitutional adjudications and, in some meas ure, value judgments.
Writ Petition No. 491 of 1991 is by a body called the "SubCommittee on Judicial Accountability" represented by its convener, Sri Hardev Singh, a Senior Advocate of this Court.
Petitioner body claims to be a Sub Committee consti tuted by an "All India Convention on Judicial Accountabili ty" "to carry forward the task of implementing the resolu tions of the conventions".
Writ Petition No. 541 of 1991 is by the Supreme Court Bar Association represented by its Honorary Secretary.
The Bar Association seeks to prosecute this petition "in the larger public interest and in particu lar in the interests of litigant public".
The two prayers common to both the petitions are, first, that the Union of India be directed to take immediate steps to enable the Inquiry Committee to discharge its functions under the "The " and, secondly, that during the pendency of the proceedings before the Committee the learned Judge should be restrained from performing judicial func tions and from exercising Judicial powers.
Writ Petition No. 542 is by a certain Harish Uppal.
This writ petition is more in the nature of a counter to the second prayer in the WP No. 541/1991 and WP No. 491/1991.
Petitioner, Sri Harish Uppal says that till the Inquiry Committee actually finds the learned Judge guilty of the charges there should be no interdict of his judicial func tions and that if such a finding is recorded then thereafter till such time as the Motion for the presentation of the Address for the removal of the Judge disposed of by the Houses of Parliament which petitioner says should not be delayed beyond 180 days the President may ask the Judge concerned to recuse from judical functions.
In Writ Petition No. 560/1991 brought by Shyam Ratan Khandelwal, a practising Advocate, the constitutional valid ity of the is challenged as ultra vires Articles 100, 105, 118, 121 and 124(5) of the Consti tution of India.
It also seeks a declaration that the Motion presented by 108 Members of Parliament for the removal of the Judge has lapsed with the dissolution of the 9th Lok Sabha.
It also seeks quashing of the decision of the Speaker admitting the Motion on the ground that an opportunity of being heard had been denied to the Judge before the Speaker admitted the Motion and proceeded to constitute a Committee.
On the question of the validity of The , 27 1968 the petitioner contends that the law properly construed vests the powers of admitting a Motion and of constituting a Committee under Section 3 in the Speaker in his capacity as Speaker of the House and subject to the well known and well settled principles of law.
procedure and conventions of the Houses of Parliament and the statute does not depart from these principles.
On the contrary, the statute admits of a construction which accords with the powers and privileges of the House and that the Motion even at that stage of admis sion would require to be debated by the House.
It is urged that if that be ' the construction, which the language of the statute admits then there should be no vice of unconstitu tionality in it.
But if the statute is construed to vest such power exclusively in the Speaker, to the exclusion of the House, the statute, on such constitution would be uncon stitutional as violative of Articles 100 (1), 105,118 and 121 of the Constitution.
Transfer Petition No. 268/1991 is for the withdrawal by this Court to itself from the High Court of Delhi, the Writ Petition (Civil) No. 1061/1991 in the Delhi High Court where reliefs similar to those prayed for by Sri Khandelwal in WP (Civil) No. 560/1991 are sought.
The prayer for trans fer has not yet been granted; only the further proceedings in the High Court are stayed.
But full dress arguments in all these matters have been heard.
It is appropriate that this writ petition should also be formally withdrawn and finally disposed of along with the present batch of cases.
All that is necessary is to make a formal order withdrawing WP (Civil) No. 1061/1991 from the Delhi High Court, which we hereby do.
Certain allegations of financial improprieties and irregularities were made against Justice V. Ramaswami, when he was the Chief Justice of the High Court of Punjab & Haryana.
There were certain audit reports concerning certain items of purchases and other expenditure.
The then Chief Justice of India, Justice Sabyasachi Mukharji, took note of the reports in this behalf and of representations submitted to him in this behalf and advised Justice Ramaswami to abstain from discharging judicial functions until those allegations were cleared.
Thereafter, a Committee of three Judges was constituted by the then Chief Justice of India, to look into the matter and to advise him whether on the facts Justice Ramaswami might be embarrassed in discharging judicial functions as a Judge of this Court.
The Committee tendered its advice to the Chief Justice.
It noted that Justice Ramaswami had declined to acknowledge the jurisdic tion of any Committee to sit in judgment over his conduct.
The Committee, accordingly, abstained from an inquiry on the charges but.
on an evaluation of the matter before it, expressed the view that as long as the charges of 28 improper conduct involving moral turpitude were not estab lished in the various enquiries then pending the operation of the constitutional warrant appointing him a Judge of the Court could not be interdicted.
Thereafter, in February, 1991, 108 Members of the Lok Sabha presented a Motion to the Speaker of the 9th Lok Sabha for Address to the President for the removal of the learned Judge under Article 124(4) of the Constitution read with the provisions of the .
On 12.3.1991 the Speaker of the Lok Sabha in purported exercise of his powers under Section 3 of the said Act, admitted the Motion and constituted a Committee as aforesaid to investigate the grounds on which the removal was prayed for.
Soon after the decision of the Speaker to admit the Motion and constitute a Committee to investigate the charges was made, the term of the Ninth Lok Sabha came to premature end upon its dissolution.
The petitioners question the legality of the Speaker 's order and assert that, at all events, the Motion had lapsed with the dissolution of the House.
This contention is supported by the Union of India.
They say that the effect of dissolution of the Ninth Lok Sabha is to "pass a sponge across the Parliamentary slate" and all pending motions lapse.
The motion for removal, it is urged, is no exception.
'We have heard Sri Shanti Bhushan, Sri Ram Jethmala ni, Sri P.P. Rao, Sri R.K. Garg and Ms. Indira Jaising learned senior counsel in support of the prayers in writ petitions Nos. 491 and 541 of 1991 filed by the Sub Commit tee on Judicial Accountability and the Supreme Court Bar Association respectively; Sri G. Ramaswamy, learned Attorney General for the Union of India; Sri Kapil Sibal for the petitioners in writ petition No. 560/91 and transfer peti tion No. 278/91.
Sri Harish Uppal, petitioner in person in writ petition No. 542/91 has filed his written submissions.
The arguments of the case covered a wide constitutional scheme relating to the removal of members of the superior judiciary in India and tO the problems of justiciability of disputes arising therefrom.
We shall refer to the arguments when we assess the merits of these contentions.
The contentions urged at the hearing in support of the petitions which seek enforcement of Speaker 's decision as well as those urged in support of the petitions which say that the Motion has lapsed can be summaried thus: 29 Contention A: The motion for removal of the Judge moved by 108 Members of Parliament as well as the purported decision of the Speaker to admit that motion and to constitute a committee to investigate into the grounds on which removal is sought have lapsed upon the dissolution of the 9th Lok Sabha.
The general rule is that no House of Parliament can seek to bind its successor.
All pending business at the time of dissolution of House lapses.
A motion for removal of a judge is just another motion and perishes with the expiry of the term or the earlier dissolution of the House.
The question whether the motion for the remov al of the judge has lapsed or not is a matter pertaining to the conduct of the business of the House of which the House is the sole and exclusive judge.
No aspect of the matter is justiciable before Court.
Contention B: The constitutional process of removal of a Judge, both in its substantive and procedural aspects, is a political process within the exclusive domain of the Houses of Parliament.
The conduct of the Speaker in regulating the procedure and business of the House shall not be subject to the jurisdiction of any Court.
The Speaker of the Lok Sabha in the exercise of his powers under the , 1%8, acts in an area outside the courts ' jurisdiction.
There is nothing in the which detracts from this doctrine of lapse.
On the contrary, the provi sions of the 'Act ' are consistent with this Constitutional position.
Contention C: Article 124(5) pursuant to which the , is a mere enabling provi sion.
Prior 'proof of misconduct is not a condition precedent before the bar under Article 121 against the discussion of the conduct of the Judge is lifted.
Contention D: The action of the Speaker in admitting the notice of motion without reference to the House and constituting a committee for inves tigation without the support of the decision of the 30 House is ultra vires Articles 100(1), 105, 121 and the rules made under Article 118 of the Constitution.
The provisions of the ; 1968 can be read consistently with the Consti tutional Scheme under the aforesaid Articles.
But if the provisions of the Act are so con strued as to enable the Speaker to exercise and perform those powers and functions without reference to and independently of the House, then the provisions of the Act would be uncon stitutional.
Contention E.
The decision of the Speaker to admit the motion and to constitute a committee for investigation is void for failure to comply with the rules of natural justice as no oppor tunity, admittedly, was afforded to the Judge of being heard before the decision was taken.
Contention F. ' The process of removal by means of a motion for address to the President is a political remedy.
But the fundamental right to move the Supreme Court for enforcement of fundamental rights take within its sweep the right to access to a court comprising of Judges of sterling and unsullied reputation and integri ty which is enforceable.
This judicial remedy is independent of the constitutional remedy and that the court has jurisdiction to decide as to its own proper constitution.
In exercise of this jurisdiction it should examine the grounds of the alleged misbehaviour and re strain the Judge from judicial functioning.
Contention G. ' The Speaker 's decision is vitiated by mala fides and oblique and collateral motives.
Contention H. ' The Supreme Court Bar Association and the Sub Committee on Judicial Accountability the petitioners in Writ Petition No. 491 of 1991 and Writ Petition No. 541 of 1991, respective ly, do not have the requisite standing to sue and the writ petitions are, accordingly, not maintainable at their instance.
31 Contention L ' At all events, even if the Speaker is held to be a statutory authority acting under the Statute and not as part of the proceedings or business of the Lok Sabha and is amenable to the jurisdiction of the Court, any judgment rendered and writ issued by this Court have the prospect of being infructuous in view of the undisputed constitutional position that, in the ultimate analysis, the decision to adopt or turn down the motion is exclusively within the power of the House and the Court would have no jurisdiction over that area.
The Court would, therefore, decline to exercise its jurisdiction on grounds of infructuousness.
Before we discuss the merits of the arguments it is necessary to take a conspectus of the constitutional provi sions concerning the judiciary and its.independence.
hi interpreting the constitutional provisions in this area the court should adopt a construction which strengthens the foundational features and the basic structure of the Consti tution.
Rule of law is a basic feature of the Constitution which permeates the whole of the Constitutional fabric and is an integral part of the constitutional structure.
Inde pendence of the judiciary is an essential attribute of Rule of law.
Articles 124(2) and 217(1) require, in the matter of appointments of Judges, consultation with the Chief Jus tices.
These provisions also ensure fixity of tenure of office of the Judge.
The Constitution protects the salaries of Judges.
Article 121 provides that no discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the dis charge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided.
Articles 124(4) and 124(5) afford protection against premature determination of the tenure.
Article i 24(4) says "a Judge of the Supreme Court shall not be removed from his office except" etc.
The grounds for removal are again limited to proved misbehaviour and incapacity.
It is upon a purposive and harmonious con struction and exposition of these provisions that the issues raised in these petitions are to be resolved.
In construing the Constitutional provisions the law and procedure for removal of Judges in other countries afford a background and a comparative view.
The solution must, of course, be found within our own Constitutional Scheme.
But a comparative idea affords a proper perspective for the understanding and interpretation of the Constitu tional Scheme.
32 10.
In England a Judge of the superior courts can be removed only on presentation of an address by both the Houses of Parliament to the Crown.
Proceedings may be initi ated by a petition to either House of Parliament for an address to the Crown or by a resolution for an address to the Crown to appoint a committee of inquiry into the conduct of the person designated, though preferably they should be commenced in the House of Commons.
Sometimes [as in Barring tons Case (1830)], a Commission of Inquiry is appointed and the matter is considered in the light of the report of the said Commission.
The motion for removal is considered by the entire House.
In case any enquiry is to be conducted into the allegations, it is either referred to a Select Committee of the House or to the Committee of the whole House Opportu nity is given to the Judge whose conduct is impugned to make defence on public inquiry.
The report of the Committee and its recommendation are placed before the House where the matter is debated.(See: Halsbury 's Laws of England, 4th Ed.
p. 1108).
This process has been subjected to following criticism (i) legislative removal is coloured by political partisanship inasmuch as the initia tion of the process as well as the ultimate result may be dictated by political considera tions and process of fact finding and deliber ations also suffer from party spirit.
(ii) the government has considerable control not only on the ultimate result of the pro ceedings but also on parliamentary time which enables them to prevent motions for an address from being adopted if it suits them.
(iii) the legislative procedure is not adequate for adjudicative fact finding; and (iv) since Parliament is the master of its own procedure, the procedures and rules of evidence appropriate to judicial proceedings which would seem to be required in a case of judicial removal are unlikely to be allowed in Parliament.
(See: Shetreet Judges on Trial (1976) p. 405 407) 12.
The Justice Sub Committee on the Judiciary consid ered the question whether the existing process for removal by address of the Houses should be substituted for or sup plemented by a new mechanism designed to meet changing needs and conditions.
The Sub Committee, in its 1972 Report, answered the said question in the affirmative and has pro posed a new procedure for removal of judges.
The Sub Commit tee has recommended the establishment of an adhoc judicial commission to be ap 33 pointed by the Lord Chancellor, if he decides that the question of removing a judge is to be investigated.
The Commission should include a majority of, and in any event not less than three, persons who hold or have held high judicial office.
Members of Parliament or persons who hold or have held any political appointment would be excluded.
Upon completing its inquiry the ad hoc Commission shall report the facts and recommend whether the question of removal of a judge should be referred to the Judicial Com mittee of the Privy Council.
If the Commission so recommend ed, the Privy Council would consider the matter and if it concluded that the judge should be removed, it would so advise Her Majesty.
[see: Shetreet 'Judges on Trial ', (1976); pp.
404 405].
Dr. Shetreet has suggested a via media and has favoured the establishment of a Judicial Commission for removal (but not for discipline short of removal) along the lines sug gested by the Sub Committee but has expressed the view that the existing process of address should also be preserved.
[See: Shetreet 'Judges an Trial ', (1976); p. 409].
Similar view has been expressed by Margaret Brazier.
(See: Rodney Brazier 'Constitutional Texts ' (1990) pp.606 607).
In Canada, under section 99(1) of the Constitution Act of 1867, the judges of the superior courts hold office during good behaviour, and are removable by the Governor General on address of the Senate and House of Commons.
On petition for removal submitted in 1868 and 1874 the matter was referred to a Select Committee of the House.
In a third case in 1874 the judge died before any action could be taken on motion for appointment of a Select Committee.
Recently in 1966 67, a motion for removal of Mr. Justice Leo Landreville of the Supreme Court of Ontario was moved and in that con nection a Royal Commission consisting of Mr. Justice Ivan C. Rand, a retired judge of the Supreme Court of Canada was appointed under the Inquiries Act R. section C. 1952 C. 154 to conduct an enquiry.
After considering the report of the said Commission, a Joint Committee of the Houses recommended removal but the judge resigned while Parliament was prepar ing for his removal by joint address.
Thereafter, Judges Act was enacted in 1971 whereby Canadian Judicial Council has been created.
The functions of the said Council as set out in section 39(2) include making the enquiries and the investiga tion of complaints or allegations described in section 40.
Sec tion 40 provides that the council may conduct an enquiry to determine whether a judge of superior, district or county court should be removed from office and it may recommend to the Minister of Justice of Canada that a Judge should be removed from office.
The grounds on which such a recommenda tion can be made are set out in section 41(2) of the Act and they are: (a) age or infirmity, Co) having been 34 guilty of misconduct, (c) having failed in the due execution of his office, or (d) having been placed, by his conduct or otherwise, in a position incompatible with the due execution of his office.
(Gall 'The Canadian Legal System ' ( 1983 ); pp. 184 186).
In 1 '982 the matter of Mr. Justice Thomas Berger, a Judge of the Supreme Court of British Columbia, was investi gated by the Canadian Judicial Council prompted by certain remarks made by the judge.
The Council concluded that the public expression of political views in the nature of those made by Mr. Justice Berger constituted an "indiscretion", but that they were not a basis for a recommendation that he be removed from office and on the basis of the said recom mendation, no further action was taken though Mr. Justice Berger tendered his resignation as a judge a few months later.
(See: Gall. ' The Canadian Legal System, (1983) p. 189) 14.
Under section 72(ii) of the Commonwealth of Austra lia Constitution Act, 1900, the justices of the High Court and of the other courts created by the Parliament cannot be removed except by the GovernorGeneral in Council, on an address from both Houses of the Parliament in the same session praying for such removal on the ground of proved misbehavior or incapacity.
Similar provisions are contained in the Constitutions of the States with regard to removal of Judges of State Courts.
Proceedings were initiated for removal of Mr. Justice Murphy of the High Court of Australia in 1984 under section 72(ii) of the Commonwealth of Australia Constitution Act.
In connection with those proceedings at first a select Commit tee of the Senate was appointed to enquire and report into the matter.
It consisted of six senators drawn from three political parties.
The Committee by majority decision (3: 2, one undecided) found no conduct amounting to misbehaviour under section 72(ii).
In view of the split vote a second Committee of four senators from the same three political parties was established and it was assisted by two retired judges one from the Supreme Court of Western Australia and the other from Supreme Court of the Australian Capital Territory and the said Committee recorded its finding but the judge did not appear before either of the committees.
The judge was also prosecuted before the Central Criminal Court of New South Wales and was found guilty of an attempt to pervert the course of justice but the said verdict was set aside by the Court of Criminal Appeal.
Fresh trial was held where under the judge was found not guilty.
Thereafter, an ad hoc legislation, namely, Parliamentary Commission of Inquiry Act, 1986 was enacted by the Commonwealth Parliament and a Commission consisting of three retired judges respec tively of Supreme Court of Victoria, Supreme Court of Aus tralia Capital Territory 35 and the Federal Court and Supreme Court of South Australia was constituted to investigate into the allegations of misbehaviour.
Before the said commission could give its report, the judge became gravely ill and the Act was re pealed [Lane 's Commentary on the Australian Constitution, (1986) p. 373].
In one other case, proceedings for removal were initiated against Mr. Justice Vasta of the Supreme Court of Queensland and for that purpose, the Queensland Legislature enacted the Parliamentary (Judges) Commission of Inquiry Act, 1988 whereby a commission comprised of three retired judges respectively of the High Court of Australia, Supreme Court of Victoria and the Supreme Court of New South Wales was constituted.
In Australia, there has been criticism of the exist ing procedure with regard to removal of judges both by judges as well as by lawyers.
Mr. Justice L.J. King, Chief Justice of the Supreme Court of South Australia, has ob served: "The concept of removal by an address of both Houses of Parliament is itself the subject of a good deal of criticism.
Curiously, common criticism which are made are contradictory.
One criticism is that the necessity for the involvement of the legislature ensures that the procedure will not be used and that the judges therefore have a practical immunity from removal.
Removal by this means is cer tainly extremely tare.
That may be, however, because in the countries in which this proce dure prevails, conditions are such that a judge who commits a serious act of judicial misconduct would certainly resign.
That con sideration, together with the fact that stand ards of judicial conduct are generally very high in those countries, renders removal by the legislature a rarity.
The opposite criti cism, however, is that there is no established procedure for the trial of a judge whose removal by the legislature is sought.
It is assumed that the legislature would itself institute some form of inquiry at which the judge would be able to defend himself against the accusations, but that would be a matter for the legislature in each case.
There are some who fear that a parliamentary majority, encouraged by inflamed public feeling about an unpopular judicial decision, might some day act to remove a judge, without due process.
It is at least questionable whether the system of removal by an address of both Houses of Parliament accords to a judge the 30 degree of security which is required by the concept of judicial independence.
[ 'Minimum Standards of Judicial Independence ' 1984 (58) ALl 340, at p. 345] Similarly, Mr. Justice M.H. Mclelland of the Supreme Court, of New South Wales has expressed the view: "In lieu of measures of the kinds already discussed, some permanent, and preferably Australia wide, machinery should be provided by legislation for the purpose of establishing an effective procedure for the determination by a judicial tribunal of the existence of misbehaviour or incapacity which could warrant a judge 's removal from office.
The design of that ma chinery should be such as to produce as little damage to judicial independence, public confi dence in the judicial system, and the authori ty of the courts, as is consistent with its effective operation.
It should also be such as to ensure to a judge both procedural fairness and protection from public vilification or embarrassment pending the making of the deter mination".
(Disciplining Australian Judges, at p. 401) Mr. Justice Mclelland has also suggested that the tribu nal should be subject to the supervisory jurisdiction of, and an appeal should lie from the tribunal to, the High Court of Australia.
In this context, he has stated: "Furthermore, the protection of judicial tenure and independence which the Act of Settlement provisions were intended to effect, has in the intervening period lost a great deal of its strength.
In 1701, the Crown, the House of Lords and the House of Commons were three powerful but relatively independent entities.
It was necessary for a judge to incur the displeasure of all three concurrent ly to be at risk of removal under the parlia mentary address procedure.
The subsequent development of the party system and cabinet government (especially with modern ideas of strict party discipline) has radically altered the position.
In modern times, the executive government and the lower house (and frequently the upper house, where there is one) are effectively under the control of a single individual or cohesive group, so that now a judge may be at risk of removal under the parliamentary address procedure if 37 he or she were to incur the sole displeasure of that individual or group." (Disciplining Australian Judges, 8 8 at p. 402 3) Sir Maurice Byers, former Solicitor General of the Commonwealth has also spoken in the same vein: "A federal system involves a tension between the High Court and the Parliament and the executive.
Recent years have seen this in crease because interpretations of the Consti tution have become party dogma.
The Court 's constitutional decisions are seen by many of the uninformed and quite a few of the informed as bearing upon party political questions.
When, as in the case of Mr. Justice Murphy and to a much less degree Sir Garfield Barwick, a former political figure, hands down a judgment he attracts the animus and often the abuse of some in Parliament.
Section 72 of the Consti tution leaves him exposed to the attack of his opponents and the often doubtful support of his former friends.
Whether Parliament may itself decide the judicial question of his fitness for office or "proved misbehaviour or incapacity" is at the least doubtful.
But the Court should not be exposed to this hazard, A Commission of Judges whose membership rotates is called for." (From the other side of the Bar Table: An Advocates ' view of the Judici ary; , at p. 185).
A Constitutional Commission was set up in Australia for suggesting reforms in the Commonwealth Constitution.
The said Commission has recommended that provision should be made by amendment to the Commonwealth Constitution for (a) extending the security of tenure provided by section 72 to all judges in Australia, and (b) establishing a national judicial tribunal to determine whether facts found by that tribunal are capable of amounting to misbehaviour or inca pacity warranting removal of a judge from office.
(Mclelland 'Disciplining Australian Judges ', , at p. 403) 17.
In the United States, the removal of a judge of the U.S. Supreme or a Federal judge is governed by the provisions of the U.S. Constitution wherein Article 11(4) provides for the removal from office of the President, Vice President and all civil officers of the United States on impeachment for, and conviction of, treason, bribery or other high crimes 38 and misdemeanours.
Impeachment may be voted by a simple majority of the members of the House of Representatives, there being a quorum on the floor and trial is then held in the Senate, which may convict by a vote of two thirds of the members of the Senate present and voting, there being a quorum.
With regard to state judiciary, the process of removal is governed by the State Constitutions.
Majority of the States follow the federal pattern an4 provide for im peachment as the normal process of removal of appointed judges.
In some States, provision is made for removal by an address of the Governor to both Houses of legislature or by a joint resolution of the legislature.
In some States, the removal power is vested in the State Supreme Courts while in some states, special courts are provided to hear removal charges.
In the State of New York, the Court is known as the Court on the judiciary.
(See Henry J. Abraham: The Judicial Process, 3rd Ed. p.45).
For judicial administration at the national level, there is Judicial Conference of the United States which consists of the Chief Justices of the United States, the chief judges of each of the eleven numbered circuits and of the District of Columbia and federal circuits but also, since 1957, a district judge representative from each circuit with the exception of the federal circuit, which lacks a trial court tier.
By an Act of the Congress passed in 1932 (incorporated in Title 28 of the U.S. Code) the Judicial Conference is charged with the duty to make a comprehensive survey of the condition of business in the courts; to prepare plans for assignment of judge, ' to or from circuits or districts where necessary; and to submit suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of court business.
The work of the Judicial Conference is performed in special committees which include the special committee on judicial ethics.
Another Act of Congress passed in 1939 makes provi sion for a judicial council for each circuit composed of circuit judges of the circuit who is empowered to make all necessary orders for the effective and expeditious adminis tration of the business of the courts within its circuit.
The mandate of the Judicial Councils embraces the business of the judiciary in its institutional sense (administration of justice), such as avoiding of loss of public esteem and confidence in respect to the court system, from the actions of a judge or other person attached to the courts.
The Judicial Councils have exercised the power of review of allegations of misconduct on the part of court personnel, officers and judges.
In view of the increased number of judges, who can be removed only by the process of impeach ment, Congress has enacted the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 whereby the Judicial Councils have been explicitly empowered to receive complaints about judicial 39 conduct opaquely described as "prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such a Judge or magistrate is unable to discharge all the duties of office by reason of mental or physical disability.
" It prescribes an elaborate judicilised procedure for processing such complaints within the administrative system of the councils and the Judicial Conference.
Should a Council determine that the conduct constitutes grounds for impeachment the case may be certi fied to the Judicial Conference of the United States which may take appropriate action and if impeachment is deemed warranted, the Conference is empowered to transmit the record and its determination to the House of Representa tives.
In so far as the States are concerned, all the fifty States have central Institutions for disciplining their judges and in each a variously constituted commission is organised in either a single tier or in many tiers depending on the perceived desirability of separating fact finding from judgment recommendation tasks.
Commission recommenda tions are transmitted to the State Supreme Court for its authoritative imprimatur, except in states where they are received by legislatures that retain judicial removal power.
(See Robert J.Janosik Encyclopaedia of the American Judicial System, Vol.
II pp.575 to 578).
This study of the practice prevailing in the above mentioned countries reveals that in Canada, Australia and the United States, the process of removal of a judge incor porates an investigation and inquiry into the allegations of misconduct or incapacity against a judge by a judicial agency before the institution of the formal process of removal in the legislature.
England is the only exception where the entire process is in Parliament but there also views are being expressed that it should be replaced by a judicial process of investigation by a judicial tribunal before the matter is taken up by the Houses of Parliament.
This is also the trend of the recommendations in the resolu tions adopted by the United Nations General Assembly and international conferences of organisations of lawyers.
International Bar Association at its 19th Biennial Conference held at New Delhi in October 1982 adopted Minimum Standards of Judicial Independence.
Paras 27 to 32 relating to 'Judicial Removal and Discipline ' are as under: "27.The proceedings for discipline and removal of judges should ensure fairness to the judge, and adequate opportunity for hearing.
40 28.
The procedure for discipline should be held in camera.
The judge may however request that the heating be held in public, subject to final and reasoned disposition of this request by the Disciplinary Tribunal.
Judgments in disciplinary proceedings whether held in camera or in public, may be published.
(a) The grounds for removal of judges should be fixed by law and shall be clearly defined.
(b) All disciplinary action shall be based upon standards of judicial conduct promulgated by law or in established rules of court.
A judge shall not be subject to removal unless, by of a criminal act or through gross or repeated neglect or physical or mental incapacity, he has shown himself manifestly unfit to hold the position of judge.
In systems where the power to discipline and remove judges is vested in an institution other than the Legislature, the tribunal for discipline and removal of judges shall be permanent and be composed predominantly of members of the Judiciary.
The head of the court may legitimately have supervisory powers to control judges on administrative matters.
The First World Conference on the Independence of Justice held at Montreal on June 10, 1983 adopted a UniVer sal Declaration on the Independence of Justice.
It relates to international judges as well as national judges.
The following paragraphs deal with 'Discipline and Removal ' in relation to national judges: "2.32 A complaint against a judge shall be processed expeditiously and fairly under an appropriate practice, and the judge shall have the opportunity to comment on the complaint at its initial stage.
The examination of the complaint at its initial stage shall be kept confidential, unless otherwise requested by the judge.
2.33 (a) The proceedings for judicial removal or discipline, when such are initiated, shall be held before a court or a board predominant ly composed of members of the judiciary and selected by the judiciary.
(b) However, the power of removal may be vested in the Legislature by impeachment or joint address, preferably upon a recommenda tion of a court or board as referred to in 2.33(a).
41 [Explanatory Note: In countries where the legal profession plays an indispensable role in maintaining the rule of law and judicial independence, it is recommended that members of the legal profession participate in the selection of the members of the court or board, and be included as members thereof.
] 2.34 All disciplinary action shall be based upon established standards of judicial con duct.
2.35 The proceedings for discipline of judges shall ensure fairness to the judge and the opportunity of a full hearing.
2.36 With the exception of proceedings before the Legislature, the proceedings for disci pline and removal shall be held in camera.
The judge may, however, request that the hearing be held in public, subject to a final and reasoned disposition of this request by the Disciplinary Tribunal.
Judgments in discipli nary proceedings, whether held in camera or in public, may be published.
2.37 With the exception of proceedings before the Legislature or in connection with them, the decision of a Disciplinary Tribunal shall be subject to appeal to a court.
2.38 A judge shall not be subject to removal except on proved grounds of incapacity or misbehaviour, rendering him unfit to continue in office.
2.39 In the event that a court is abolished judges serving in this court shall not be affected, except for their transfer to another court of the same status.
The Seventh United Nations Congress on the Preven tion of Crime and the Treatment of Offenders held at Milan from August 26 to September 6, 1985 adopted the Basic Prin ciples on the Independence of the Judiciary.
Paragraphs 17 to 20 dealing with 'Discipline, Suspension and Removal ' are as under: "17.A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure, The judge shall have the right to a fair heating.
The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.
Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to 42 discharge their duties.
All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial con duct.
Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review.
This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.
" The Congress Documents were endorsed by the U.N. General Assembly in its Resolution 40/32 on November 9, 1985 and Resolution 40/ 146 on December 13, 1985.
Resolution 40/146 dated December 13, 1985 of the General Assembly specifically welcomed the Basic Principles on the Independence of the Judiciary and invited Government "to respect them and to take them into account within the framework of their nation al legislation and practice" (para 2).
Unlike the judges of the Superior courts in England, the judges in the colonies did not enjoy the security of tenure as guaranteed under the Act of Settlement, 1700 and they held office at the pleasure of the Crown.
(See: Terrell vs Secretary of State for the Colonies and Another, 1953(2), 482).
The position was not different in India till the enactment of Government of India Act, 1935.
In Clause (b) of the proviso to sub Section 2 of Section 200 of the said Act which related to judges of the Federal Court, it was pre scribed that "a judge may be removed from his office by order of the Governor General on the ground of misbehaviour or of infirmity of body or mind, if the Judicial Committee of the Privy Council, on reference being made to them, report that the judge ought on any such ground to be re moved".
Similar provisions were made with regard to judges of the High Court in Section 220.
It would thus appear that prior to the coming into force of the Constitution of India, it was necessary to have a determination by a judicial body about the alleged grounds of misbehaviour or infirmity of mind and body before a judge of the Federal Court or High Court could be removed.
Does the Constitution seek to alter this position in a way, as to exclude investigation and proof of misbehaviour or incapacity by a judicial body and to rest the power of removal including the investigation and proof of misbehaviour or incapacity in Parliament alone.
Basically, the process of removal or impeachment of a judge is a political process.
A learned author in "The Impeachment of the Federal 43 Judiciary: ' [Wrisley Brown Harward Law Review 1912 1913 684 at page 698) says: ".
Thus an impeachment in this country, though judicial in external form and ceremony.
is political in spirit.
It is directed against a political offence.
It culminates in a polit ical judgment.
It imposes a political forfei ture.
In every sense, say that of administra tion, it is a political remedy, for the sup pression of a political evil, with wholly political consequences.
This results in no confusion of the political and the judicial powers.
The line of demarca tion is clearly discernible even through the labyrinth of formal non essentials under which ingenious counsel in various cases have sought to bury it.
The judgment of the High Court of Parliament upon conviction of an impeachment automatically works a forfeiture of political capacity; but this is simply an effect of the judgment, which is to be distinguished from the judgment itself. " Mauro Cappelletti in 'The Judicial Process in Comparative Perspective '[Clarendon Press Oxford 1989 at page 731 says: "Two main features of this accountability type can be identified; first, the fact that ac count has to be given to 'political ' bodies, ultimately to the legislative and/or the executive branches by means of essentially 'po litical ', non judicial processes; second, and perhaps even more characteristically, the fact that account has to be given not, or not primarily, for 'legal ' violations, but rather for behaviour (and this might include private, out of office behaviour) which is evaluated on the basis of 'political ' criteria.
Perhaps the best illustration of political accountability can be found in the systems of the common law tradition.
In England, judges (like any other officials) can be impeached 'before the House of Lords, at the suit of the House of Commons ', although this practice has fallen into desuetude; moreover, higher court judges can be 'removed from office by the Crown on an address presented to Her Majesty by both Houses of Parliament '.
The idea behind this 'address ' procedure is that judges are appointed 'during good behaviour ', hence, they can be removed upon breach of the condition.
Misbehaviour includes such situations as 'the case of conviction upon an indictment for any infamous offence of such a nature as to render the 44 person unfit to exercise the office ', but also 'improper exercise of the functions appertain ing to the office, or non attendance, or neglect of or refusal to perform the duties of the office '.
Of course the decision of the Houses and the Crown can only be an essential ly political one, not a purely juridical decision, even though we are informed that the removal procedure is subject to some extent 'to the rules of natural justice '. " 24.
But the Constitutional scheme in India seeks to achieve a judicious blend of the political and judicial processes for the removal of Judges.
Though it appears at the first sight that the.proceedings of the Constituent Assembly relating to the adoption of.
clauses, (4) and (5) of Article 124 seem to point to the contrary and evince 'an intention to exclude determination by a judicial process of the correctness of the allegations of misbehaviour or inca pacity on a more careful examination this is not the correct conclusion.
In the submissions of the learned counsel who contend against the manifestation of an intention to bring in a judicial element, reliance has been placed on the proceedings of the Constituent Assembly dated July 29, 1947 relating to adoption of Clause 18 of the report of the Union Constitution Committee relating to the Supreme Court.
Shri Alladi Krishnaswami Ayyar had moved the said clause subject to modifications and conditions in the said clause which related to appointment and removal of judges of Supreme Court.
It was provided that "a judge of the Supreme Court of India shall not be removed from his office except by the President on an address from both the Houses of Parliament of the Union in the same session for such removal on the ground of proved misbehaviour or incapacity.
Further provi sion may be made by Federal law for the procedure to be adopted in this behalf '.
Shri K. Santhanam had moved an amendment in the said Clause relating to removal of judges and he wanted the last sentence about further provision being made by Federal law for the procedure to be adopted in that behalf, to be omitted.
Shri M.Ananthasayanam Ayyanagar proposed amendments suggesting two alternative clauses in the place of the Clause with regard to removal of the judges.
In one clause, it was suggested that "a judge may be removed from office on the ground of misbehaviour or infirm ity of mind or body by an address presented in this behalf by both the Houses of the legislature to the President provided that a committee consisting of not less than 7 High Court Chief Justices chosen by the President, investigates and reports that the judge on any such ground be removed".
The other alternative clause suggested by Shri M.Anantha sayanam Ayyangar was that "a judge of the Supreme Court may be removed from office by the President on the ground of misbehaviour or of infirmity of mind or body, if on refer ence being made to it (Supreme Court) by the President, a special 45 tribunal appointed by him for the purpose from amongst judges or exjudges of the High Courts or the Supreme Court, report that the" 'judge ought on any such grounds to be removed.
" The Constituent Assembly adopted clause 18 with the amendments as proposed by Shri Alladi Krishnaswami Ayyar and rejected the amendments suggested by Shri M. Anantha sayanam Ayyangar.
Shri Santhanam did not press his amendment and it was withdrawn.
There is no doubt that in the amend ments which were suggested by Shri M.Ananthasayanam Ayyan gar, it was provided that there should be investigation into the allegations of misbehaviour or infirmity by a committee consisting of Chief Justices of the High Courts or the special tribunal consisting of judges or ex judges of the High Court or the Supreme Court, but the rejection of the said amendments moved by Shri Ayyangar does not mean that the Constituent Assembly was not in favour of determination about the correctness of such allegations by judicial body because Shri Alladi Krishnaswami Ayyar, while moving Clause 18 had emphasised the word 'proved misbehaviour ' and had stated: "While the ultimate power may rest with the two Houses, the Clause provides that the charges must be proved.
How exactly to prove the charges will be provided for in the Feder al law.
We need not be more meticulous or more elaborate, than the people who have tried a similar case in other jurisdictions.
I chal lenge my friend to say whether there is any detailed provision for the removal of judges more than that in any other Constitution in the world.
The general principle is laid down in the Constitution and later on the Federal law will provide for adequate machinery and that is the import of the clause". .
There is sufficient safeguard in the reference "proved misbehaviour" and we might make elabo rate and adequate provision for the way in which ',he guilt could be brought home to a particular judge in any Federal law that may be passed but that is a different matter". "But I do not think that in a Constitution it is necessary to provide de tailed machinery as to the impeachment, the charges to be framed against a particular judge.
To make a detailed machinery for all these could be a novel procedure to be adopted in any Constitution".
(Constituent Assembly Debates, vols.
I to VI at pp.
899 900) 25.
Reference was also made to the debates of the Con stituent Assembly dated May 24, 1949 on Article 103 of the Draft Constitution.
Shri Tajamul Hnsain moved an amendment in Clause (4) of Article 103 which related to the removal of a judge of Supreme Court and suggested an amendment in the said clause so as to provide that "a judge of the Supreme 46 Court shall not be removed from his office except by an order of the President passed, after a Committee consisting of all the judges of the Supreme Court had investigated the charge and reported on it to the President and etc.
" The said amendment was negatived by the Constituent Assembly.
(Constituent Assembly Debates, vol.
VIII at pp.
243 and 262).
The said amendment was similar to those moved by Shri M. Ananthasayanam Ayyangar at the stage of adoption of Clause 18 of the report of the Union Constitution Committee noticed earlier.
The reasons which were given by Shri Alladi Krishnaswami Ayyar for opposing the said amendments would apply to this amendment also.
The proceedings in the Constituent Assembly, there fore, do not give an indication that in adopting Clauses (4) and (5) of Article 124 of the Constitution, the intention of the Costituent Assembly was to exclude_ investigation and proof of misbehavior or incapacity of the judge sought to be removed, by a judicial body.
Having regard to the views expressed by Shri Alladi Krishnaswami Ayyar, who was a member of the Drafting Committee, while opposing the amend ments proposed by Shri M.Ananthasayanam Ayyangar, it is possible to infer that the intention of the Constituent Assembly was that the provision with regard to the machinery for such investigation and proof was a matter which need not be contained in the Constitution and it is a matter for which provision could be made by Parliament by law.
This is some of the historical material and back ground on the topic.
We may now proceed to consider the merits of the contentions.
RE: CONTENTION A: 28.
This contention has two aspects: whether a motion for removal of a Judge lapses upon the dissolution of the House of Parliament and secondly, the question whether it so lapses or not is a matter within the exclusive domain and decision of that House itself.
On the first aspect, the contention of the learned Attorney General and Shri Kapil Sibal, learned Senior Counsel, are similar.
On the second aspect, the learned Attorney General would say that the question whether a motion lapsed or not is to be decided on the basis of the provisions of law guiding the matter and the House itself is not its final arbiter.
Learned Attorney General would say that the Court alone has jurisdiction to examine and pronounce on the law of the matter.
On the question of lapse reliance was placed on the classic treatise of Erskine May 's "The Law, Privileges, Proceedings and Usage 47 of Parliament" [Twenty first Edition, London Butterworths 1989].
A motion is described as a "proposal made for the purpose of illustrating the decision of the House".
Accord ing to Erskine May, certain matters may be raised by only a substantive motion.
He says: "Certain matters cannot be debated, except on a substantive motion which allows a distinct decision of the House.
Amongst these are the conduct of the sovereign, the heir to the throne or other members of the Royal Family, a Governor General of an independent territory, the Lord Chancellor, the Speaker, the Chairman of Ways and Means, Members of either House of Parliament and judges of the superior courts of the United Kingdom, including persons holding the position of a judge, such as a judge in a court of bankruptcy and a county court, or a recorder. " 30. 'Sri Sibal placed strong reliance on the following statements in M.N.Kaul and S.L.Shakdher in "Practice and Procedure of Parliament" as to the effects of the dissolu tion of the House: "Dissolution, as already stated, marks the end of the life of a House and is followed by the constitution of a new House.
Once the House has been dissolved, the dissolution is irrevo cable.
There is no power vested in the Presi dent to cancel his order of dissolution and revive the previous House.
The consequences of a dissolution are absolute and irrevocable.
In Lok Sabha, which alone is subject to dissolu tion under the Constitution, dissolution "passes a sponge over the parliamentary slate".
All business pending before it or any of its committees lapses on dissolution.
No part of the records of the dissolved House can be carried over and transcribed into the records or registers of the new House.
In short, the dissolution draws the final curtain upon the existing House".
Adverting to the effect of dissolution on other business such as motions, resolutions etc.
, the learned authors say: "All other business pending in Lok Sabha, e.g., motions, resolutions, amendments supple mentary demands for grants etc., at whatever stage, lapses upon dissolution, as also the petitions presented to the House which stand referred to the Committee on Petitions." Learned Attorney General urged that a combined reading of Articles 107, 108 and 109 leads irresistibly to the conclusion that upon dissolution 48 of the House, all bills will lapse subject only to the exception stipulated in Article 108.
It is further urged that on first principle also it requires to be accepted that no motion should survive upon the dissolution of the House unless stipulated otherwise under the Rules of Procedure and conduct of business.
The doctrine of lapse, it is urged, is a necessary concomitant of the idea that each newly consti tuted House is a separate entity having a life of its own unless the business of the previous House is carried over by the force of statute or rules of procedure.
Both the learned Attorney General and Shri Kapil Sibal took us through the Rules of Procedure and Conduct of Business in Lok Sabha made under Article 118 of the Constitution to show that invaria bly all pending business come to an end with the expiry of the term of the House or upon its earlier dissolution.
Shri Ram Jethmalani for the petitioner sub committee referred to the conventions of the British Parliament and urged that pending business lapses on prorogation and as a general practice the House is usually prorogued before it is dissolved.
Learned counsel said that impeachment motions are sui generous in their nature and that they do not lapse.
It is.
however, necessary to distinguish the Indian Parliamen tary experience under a written Constitution from the Brit ish conventions.
Indeed, referring to the doctrine of lapse this Court in Purushothaman Nambudiri vs The State of Kerala [1962] Suppl.
1 SCR 753 Gajendragadkar J said: ".
In support of this argument it is urged that wherever the English parliamentary form of Government prevails the words "prorogation" and "dissolution" have acquired the status of terms of art and their significance and conse quence are well settled.
The argument is that if there is no provision to the contrary in our Constitution the English convention with regard to the consequence of dissolution should be held to follow even in India.
There is no doubt that, in English, in addition to bringing a session of Parliament to a close prorogation puts an end to all business which is pending consideration before either House at the time of such prorogation; as a result any proceedings either in the House or in any Committee of the house lapse with the session Dissolution of Parliament is invariably pre ceded by.
prorogation, and what is true about the result of prorogation" is, it is said, a fortiori true about the result of dissolution.
Dissolution of Parliament is sometimes de scribed as "a civil death of Parliament".
Ilbert, in his work on 'Parliament ' has ob served that "prorogation means the end of a session (not of a Parliament)"; and adds that "like dissolution, it kills all bills which have not yet passed".
He also describes disso lution as an "end of a Parliament (not merely of 49 a session) by royal proclamation", and ob serves that "it wipes the slate clean of all uncompleted bills or other proceedings". "[p.759 & 760].
After referring to the position in England that the dissolution of the House of Parliament brought to a close and in that sense killed all business of the House at the time of dissolution, the learned Judge said: " . .
Therefore, it seems to us that the effect of cl.
(5) is to provide for all cases where the principle of lapse on dissolution should apply.
If that be so, a Bill pending assent of the Governor or President is outside cl.
(5) and cannot be said to lapse on the dissolution of the Assembly." [p. 768] " . .
In the absence of cl. (5) it would have followed that all pending business, on the analogy of the English convention, would lapse on the dissolution of the Legisla tive Assembly.
It is true that the question raised before us by the present petition under Pal.
196 is not free from difficulty but, on the whole, we are inclined to take the view that the effect of cl.
(5) is that all cases not falling within its scope are not subject to the doctrine of lapse of pending business on the dissolution of the Legislative Assem bly.
In that sense we read cl.
(5) as dealing exhaustively with Bills which would lapse on the dissolution of the Assembly.
If that be the true position then the argument that the Bill which was pending assent of the President lapsed on the dissolution of the Legislative Assembly cannot be upheld." [P. 769] 31.
It is true that Purushothaman Nambudiri case dealt with a legislative measure and not a pending business in the nature of motion.
But, we are persuaded to the view that neither the doctrine that dissolution of a House "passes a sponge over parliamentary slate" nor the specific provisions contained in any rule or rules flamed under Article 118 of the Constitution determine the effect of dissolution on the motion for removal of a judge under Article 124.
the reason is that Article 124(5) and the law made thereunder exclude the operation of Article 118 in this area.
Section 3 of the Act provides: "3(1) If notice is given of a motion for presenting an address to the President praying for the removal of a Judge signed, (a) in the case of a notice given in the House of the People, by not less than one hundred members of that House; 50 (b) in the case of a notice given in the Council of States, by not less than fifty members of that Council; then, the Speaker or, as the case may be, the Chairman may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him, either admit the motion or refuse to admit the same.
(2) If the motion referred to in sub section (1) is admitted, the Speaker or, as the case may be, the Chairman shall keep the motion pending and constitute, as soon as may be, for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for, a Committee consisting of three members of whom (a) One shall be chosen from among the Chief Justices and other Judges of the Supreme Court; Co) one shall be chosen from among the Chief Justices of the High Courts; and (c) one shall be a person who is, in the opinion of the Speaker or, as the case may be, the Chairman, a distinguished jurist; Proviso &) Omitted Sub sections) as (3) to (9)) unnecessary here.
Section 6.(2) provides: "(2) If the report of the Committee contains a finding that the Judge is guilty of any misbe haviour or suffers from any incapacity, then, the motion referred to in sub section (1) of section 3 shall, together with the report of the Committee, be taken up for consideration by the House or the Houses of Parliament in which it is pending.
" The effect of these provisions is that the motion shall be kept pending till the committee submits its report and if the committee finds the Judge guilty, the motion shall be taken up for consideration.
Only one motion is envisaged which will remain pending.
No words of limitation that the motion shall be kept pending subject to usual effect of dissolution of the House can or should be imported.
The reason is that a law made by the Parliament and binding on the House can provide against the doctrine of lapse.
The law envisaged in article 124(5) is Parliamentary law which is of higher quality and efficacy than rules made by the House for itself under Article 118.
Such a law can, and under the present statute does 51 provide against the doctrine of lapse.
Further, article 118 expressly states that each House of Parliament may make rules "for regulating, subject to the provisions of this Constitution".
In State of Punjab vs Sat Pal Dang & Ors. ; this Court held that the law for purposes of Article 209 (analogues to Article 119) could even take the form of an Ordinance promulgated by the Governor of a State under Article 213 and that wherever there is repugnance between the Rules of Procedure framed under Article 208 (Article 118 in the ease of Parliament), the law made under Article 209 shall prevail.
In the constitutional area of removal of a Judge, the law made under Article 124(5) must be held to go a little further and to exclude the operation of the Rules under Article 118.
Indeed, no question of repugnance could arise to the extent the field is covered by the law under Article 124(5).
Such a view would indeed obviate some anomalies which might otherwise arise.
Rajya Sabha is not dissolved and a motion for presentation of address for the removal of the Judge can never lapse there.
Section 3 applies to both the Houses of Parliament.
The words "shall keep the motion pending" cannot have two different meanings in the two different contexts.
It can only mean that the consideration of the motion shall be deferred till the report of the committee implying that till the happening of that event the motion will not lapse.
We are of the view that the argument that such a motion lapses with the dissolution of the House of Parliament is not tenable.
The second limb of Contention A is that the question whether a motion has lapsed or not is a matter pertaining to the conduct of the business of the House of which the House is the sole and exclusive master.
No aspect of the matter, it is contended, is justificiable before a Court.
Houses of Parliament, it is claimed, are privileged to be the exclu sive arbiters of the legality of their proceedings.
Strong reliance has been placed on the decision in oft quoted decision in Bradlaugh vs Gosserr, There the exclusiveness of parliamentary jurisdiction on a matter related to the sphere where Parliament, and not the Court, had exclusive jurisdiction even if the matters were covered by a statute.
But where, as in this country and unlike in England, there is a written constitution which constitutes the funda mental and in that sense a "higher law" and acts as a limi tation upon the Legislature and other organs of the State as grantees under the Constitution, the usual incidents of parliamentary sovereignty do not obtain and the concept is one of 'limited Government '.
Judicial review is, indeed, an incident of and flows 52 from this concept of the fundamental and the higher law being the touchstone of the limits of the powers of the various organs of the State which derive power and, authori ty under Constitution and that the judicial wing is the interpreter of the Constitution and, therefore, of the limits of authority of the different organs of the State.
It is to be noted that the British Parliament with the Crown is Supreme and its powers are unlimited and courts have no power of judicial review of legislation.
This doctrine is in one sense the doctrine of ultra vires in the constitutional law.
In a federal set up the judiciary becomes the guardian of the Constitution.
Indeed, in A.K. Gopalan vs The State of Madras, ; Arti cle 13 itself was held to be ex abundante cautela and that even in its absence if any of the fundamental rights were infringed by any legislative enactment, the court had always power to declare the enactment invalid.
The interpretation of the Constitution as a legal instrument and its obligation is the function of the Courts.
"It is emphatically the province and duty of the judicial department to say what the law is".
In Re: Special Reference Case; , Gajendragadkar, CJ said: ". .though our Legislatures have plenary powers, they function within the limits pre scribed by the material and relevant provi sions of the Constitution.
In a democratic country governed by a written Constitution, it is the Constitution which is supreme and sovereig. . " But it is the duty of this Court to interpret the Con stitution for the meaning of which this Court is final arbiter.
Shri Kapil Sibal referred us to the following obser vations of Stephen J. in Bradlaugh vs Gosserr, supra: ".
It seems to follow that the House of Commons has the exclusive power of interpret ing the statute, so far as the regulation of its own proceedings within its own walls is concerned; and that even if that interpreta tion should be erroneous, this court has no power to interfere with it directly or indi rectly. " [p. 280 & 281] ".
The House of Commons is not a Court of Justice; but the effect of its privilege to regulate its own internal concerns practically invest it with the judicial character when it has to apply to particular cases the provi sions of Acts of Parliament.
53 We must presume that it discharges this func tion properly and with due regard to the laws, in the making of which it has so great a share.
If its determination is not in accord ance with law, this resembles the case of an error by a judge whose decision is not subject to appeal.
There is nothing startling in the recognition of the fact that such an error is possible.
If, for instance, a jury in a crimi nal case gives a perverse verdict, the law has provided no remedy.
The maxim that there is no wrong without a remedy does not mean, as it is sometimes supposed, that there is legal remedy for every moral or political wrong. . " [p. 285] The rule in Bradlaugh vs Gossett, supra, was held not applicable to proceedings of colonial legislature governed by the written constitutions Barton vs Taylor, and Redillusion (Hong Kong) Ltd. vs Attorney General of Hong Kong, ; The principles in Bradlaugh is.
that even a statutory right if it related to the sphere where Parliament and not the courts had exclusive jurisdiction would be a matter of the Parliament 's own concern.
But the principle cannot be extended where the matter is not merely one of procedure but of substantive law concerning matters beyond the Parliamen tary procedure.
Even in matters of procedure the constitu tional provisions are binding as the legislations are en forceable.
Of the interpretation of the Constitution and as to what law is the Courts have the constitutional duty to say what the law is.
The question whether the motion has lapsed is a matter to be pronounced upon the basis of the provisions of the Constitution and the relevant laws.
In deed, the learned Attorney General submitted that the ques tion whether as an interpretation of the constitutional processes and laws, such a motion lapses or not is exclu sively for the courts to decide.
The interpretation of the laws is the domain of the courts and on such interpretation of the constitutional provisions as well as the , it requires to be held that under the law such a motion does not lapse and the Courts retain jurisdiction to so declare.
Contention A is answered accordingly.
RE: CONTENTIONS (B), (C) AND (D): 34.
These contentions have common and over lapping areas and admit of being deal with and disposed of together.
On tile interpretative criteria apposite to the true meaning and scope of Articles 121, 124(4) and 124(5), indeed, three constructional options become avail able: 54 First: The entire power for taking all steps for the removal of a Judge, culminating in the presentation of an address by different Houses of Parliament to the Presi dent, is committed to the two Houses of Par liament alone and no initiation of any investigation is possible without the initiative being taken by the Houses them selves.
No law made by Parliament under Article 124(5) could take away this power.
The bar of Article 121 is lifted the moment any Member of Parliament gives notice of motion for the removal of a Judge and the entire allegations levelled by him would be open for discussion in the House itself.
It will be for the majority of the Members of the House t decide if and how they would like to have the allegations investigated.
Any abridging this power is bad.
Second: Since a motion for presenting an address to the President referred to in Arti cles 121 and 124 (4) has to be on ground of "proved" misbehaviour and incapacity, no such motion can be made until the allegations relating to misbehaviour or incapacity have first been found to be proved in some forum outside either Houses of Parliament Law under Article 124(5) is mandatory and until the Parliament enacts a law and makes provision for an investigation into the alleged misbeha viour or incapacity and regulates the proce dure therefor, no motion for removal of a Judge would be permissible under Article 124(4) and the House of Parliament would not be brought into the picture till some authori ty outside the two Houses of Parliament has recorded a finding of misbehaviour or incapac ity.
The emphasis is on the expression 'proved '.
Third: That Article 124(5) is only an enabling provision and in the absence of any enactment by the Parliament under that provi sion it would be open to either House to entertain a motion for the removal of a Judge.
However, it is open to the Parliament under Article 124(5) to enact a law to regulate the entire procedure starting with the investiga tion of the allegations against the Judge concerned and ending with the presentation of the address by the two Houses of Parliament.
It would be open to the Parliament to desig nate any authority of its choice for investi gating the allegations and also to regulate the 55 procedure for the consideration of the matter in either House.
As soon as a law has been enacted all its provisions would be binding on both Houses of Parliament and would even override any Rules flamed by the two Houses under Article 118 of the Constitution.
It will not be permissible for either House to act contrary to the provi sions of such Act.
The question as to when and in what circumstances motion would be allowed to be moved in either House of Parliament to lift the ban against the discussion of conduct of a Judge under Article 121 would be accord ing to such Act of Parliament.
In regard to the first and the second alternative propo sitions, the deliberations of the Joint Select Committee would indicate a sharp divide amongst the eminent men who gave evidence.
Particularly striking is the sharp contrast between the opinions of Mr. K.K. Shah and Mr. M.C. Setalvad.
The first view would tend to leave the matter entirely with the House, which can adopt any procedure even differing from case to case.
The matter would be entirely beyond judicial review.
Then there is the inevitable ' element of political overtone and of contemporary political exacerbations arising from inconvenient judicial pronouncements thus endangering judicial independence.
The third view would suffer from the same infirmities except that Parliament might itself choose to discipline and limit its own powers by enacting a law on the subject.
The law enacted under Article 124(5) might be a greatly civi lized piece of legislation deferring to values of judicial independence.
But then the Parliament would be free to repeal that law and revert hack to the position reflected in the first view.
The third view can always acquire back the full dimensions of the first position at the choice of the Parliament.
The second view has its own commendable features.
It enables the various provisions to be read harmoniously and, together, consistently with the cherished values of judicial independence.
It also accords due recognition to the word "proved" in Article 124(4).
This view would also ensure uniformity of procedure in both Houses of Parliament and serve to eliminate arbitrariness in the proceedings for removal of a Judge.
It would avoid duplication of the inves tigation and inquiry in the two Houses.
Let us elaborate on this.
56 36.
Article 121 ,and the material parts of Article 124 read as under: "121.
Restriction on discussion in Parlia ment.
No discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the Presi dent praying for the removal of the Judge as hereinafter provided.
Establishment and constitution of Supreme Court.
(1). . . . . . (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than the Chief Justice of India shall always be consulted: Provided further that (a) a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office in the manner provided in clause (4).
(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of not less than two thirds of the members of that House present and voting has been pre sented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
(5) Parliament may by law regulate the proce dure for the presentation of an address and for the investigation and proof of the misbe haviour or incapacity of a Judge under clause (4).
" Article 121 suggests that the bar on discussion in Parliament with respect to the conduct of any Judge is lifted 'upon a motion for presenting an address to the President praying for the removal of a Judge as hereinaf 57 provided '.
The word 'motion ' and 'as hereinafter provid ed ' are obvious references to the motion for the purpose of clause (4) of Article 124 which in turn, imports the concept of "proved" misbehaviour or incapacity.
What lifts the bar under Article 121 is the 'proved ' misbehaviour or incapaci ty.
Then arises the question as to how the investigation and proof of misbehaviour or incapacity preceding the stage of motion for removal on the ground of "proved" misbehaviour or incapacity under Article 124(4) is to be carried on.
Clause (5) of Article 124 provides for enactment of a law for this purpose.
The seminal question is whether clause (5) is merely an enabling provision particularly in view of the use of the word 'may ' therein, or it incorporates a condition precedent on the power of removal of the parliament.
In other words, can the function of removal under Article 124(4) be per formed without the aid of a law enacted under clause (5)?If it can be, then the power for investigation and proof of misbehaviour or incapacity of a Judge must be found in clause (4) itself and the scope of clause (5) limited only to enactment of a law for this limited purpose if the Par liament so desires and not otherwise.
The other view is that clause (5) contains a constitutional limitation on the power of removal contained in clause (4) so that it can be exer cised only on misbehaviour or incapacity "proved" in accord ance with the law enacted under clause (5).
In such situa tion, the power of the Parliament would become available only for enacting the law under clause (5) and if misbeha viour or incapacity is "proved" in accordance with such law.
The motion which lifts the bar contained in Article 121 is really a motion for such removal under clause (4) of Article 124 moved in the House after the alleged misbehavior or incapacity has been proved in accordance with the law enact ed by the Parliament under clause (5) of Article 124.
In this connection, the parliamentary procedure commences only after proof of misbehaviour or incapacity in accordance with the law enacted under clause (5), the machinery for investi gation and finding of proof of the misbehaviour or incapaci ty being statutory.
governed entirely by provisions of the law enacted under clause (5).
This also harmonises Article 121.
The position would be that an allegation of misbeha viour or incapacity of a Judge has to be made, investigated and found proved in accordance with the law enacted by the Parliament under Article 124(5) without the Parliament being involved upto that stage; on the misbehaviour or incapacity of a Judge being found proved in the manner provided by that law, a motion for presenting an address to the President for removal of the Judge on that ground would be moved in each House under Article 124(4); on the motion being so moved after the proof of misbehaviour or incapacity and it being for presenting an address to the President praying for removal of the Judge, the bar.
on 58 discussion contained in Article 121 is lifted and discussion can take place in the Parliament with respect to the conduct of the Judge; and the further consequence would ensue de pending on the outcome of the motion in a House of Parlia ment.
If, however, the finding reached by the machinery provided in the enacted law is that the allegation is not proved, the matter ends and there is no occasion to move the motion in accordance with Article 124(4).
If it be accepted that clause (4) of Article 124 by contains the complete power of removal and the enactment of a law under clause (5) is merely enabling and not a consti tutional limitation on the exercise of the power of removal under clause (4), then some other questions arise for con sideration.
If clause (5) is merely an enabling provision, then it cannot abridge the scope of the power in clause (4) and, therefore, the power of a House of Parliament under clause (4) cannot be curtailed by a mere enabling law enact ed under clause (5) which can be made only for the purpose of aiding or facilitating exercise of the function under clause (4).
In that situation, enactment of the enabling law under clause (5) would not take the sphere covered by the law outside the ambit of Parliament 's power under clause (4).
The argument that without enactment of the law under clause (5), the entire process from the time of initiation till presentation of the address to the President, including investigation and proof of the misbehaviour or incapacity, is within the sphere of Parliament, but on enactment of a law under clause (5) that area is carved out of the Parlia ment 's sphere and assumes statutory character appears tenu ous.
If the argument were correct, then clause (5), would merely contemplate a self abnegation.
The other view is that clause (4) of Article 124 gives power to the Parliament to act for removal of the Judge on the ground of proved misbehaviour or incapacity in the manner prescribed if the matter is brought before it at this stage; and for reaching that stage the Parliament is required to enact a law under clause (5) regulating the procedure for that purpose.
This means that making of the allegation, initiation of the proceedings, investigation and proof of the misbehaviour or incapacity of a Judge are governed entirely by the law enacted by the Parliament under clause (5) and when that stage is reached, the Parliament comes into the picture and the motion for removal of the Judge on the ground of proved misbehaviour or incapacity is moved for presentation of the address to the President in the manner prescribed.
The matter not being before the Parliament prior to this stage is also indicated by Article 121 which lifts the bar on discussion in Parliament only upon a motion for presenting an address to the President as provided later in Article 124(4).
The bar in 59 Article 121 applies to discussion in Parliament but investi gation and proof of misconduct or incapacity cannot exclude such discussion.
This indicates that the machinery for investigation and proof must necessarily be outside Parlia ment and not within it.
In other words, proof which involves a discussion of the conduct of the Judge must be by a body which is outside the limitation of Article 121.
The word 'proved ' also denotes proof in the manner understood in our legal system i.e. as a result of a judicial process.
The policy appears to be that the entire stage upto proof of misbehaviour or incapacity, beginning with the initiation of investigation on the allegation being made, is governed by the law enacted under Article 124(5) and in view of the restriction provided in Article 121, that machinery has to be outside the Parliament and not within it.
If this be so, it is a clear pointer that the Parliament neither has any role to play till misconduct or incapacity is round proved nor has it any control over the machinery provided in the law enacted under Article 124(5).
The Parliament comes in the picture only when a finding is reached by that machinery that the alleged misbehaviour or incapacity has been proved.
The enacted under Article 124(5) itself indicates that the Parliament so understood the integrated scheme of Articles 121, 124(4) and 124(5).
The general scheme of the Act conforms to this view.
Some ex pressions used in the Act, particularly sections 3 and 6 to suggest that the motion is initiated in the House or is kept pending in the House during investigation can be reconciled, if this Constitutional Scheme is accepted.
Those expressions appear to have been used since the authority tO entertain the complaint is 'Speaker/Chairman ', the complaint is de scribed as 'motion ' and the complaint can be made only by the specified number of Members of Parliament.
In substance it only means that the specified number of M.Ps.
alone can make such a complaint; the complaint must be made to the 'Speaker/Chairman '; on receiving such a complaint if the Speaker/Chairman form the opinion that there is a prima facie case for investigation, he will constitute the judi cial committee as prescribed; and if the finding reached is 'guilty ' then the Speaker/Chairman commences the parliamen tary process in accordance with Article 124(4) for removal of the Judge and the bar in Article 121 is lifted.
If this be the correct position, then the validity of law enacted by the Parliament trader clause (5) of Arti cle 124 and the stage upto conclusion of the inquiry in accordance with that law being governed entirely by statute would be open to judicial review as the parliamentary proc ess under Article 124(4) commences only after a finding is recorded that the alleged misbehaviour or incapacity is proved in the inquiry conducted in accordance with the law enacted under clause (5).
For this reason the argument based on exclusivity of Parliament 's jurisdiction over 60 the process and progress of inquiry under the Judges (in quiry) Act, 1968 and consequently exclusion of this Court 's jurisdiction in the matter at this stage does not arise.
For the same reason, the question of applying the doctrine of lapse to the motion made to the Speaker giving rise to the constitution of the Inquiry Committee under the Act, also does not arise and there can be no occasion for the House to say so at any time.
If the House is, therefore, not required to consider this question since the parliamentary process can commence only after a finding of guilt being proved, the further question of a futile writ also does not arise.
The argument that the House can decide even after a finding of guilt that it would not proceed to vote for removal of the Judge is not germane to the issue since that is permissible in the Constitutional Scheme itself under Article 124(4) irrespective of the fact whether Article 124(5) is a mere enabling provision or a constitutional limitation on the exercise of power under Article 124(4).
It is not the law enacted under Article 124(5) which abridges or curtails the parliamentary process or exclusive ly of its jurisdiction but the Constitutional Scheme itself which by enacting clauses (4) and (5) simultaneously indi cated that the stage of clause (4) is reached and the proc ess thereunder commences only when the alleged misbehaviour or incapacity is proved in accordance with the law enacted under clause (5).
It is only then that the need for discussing a Judge 's conduct in the Parliament arises and, therefore, the bar under Article 121 is lifted.
in short, the point of time when the matter comes first before the Parliament in the Constitutional Scheme, Article 121 provides that the bar is lifted.
The other view creates difficulties by restricting discussion in Parliament on a motion which would be before it.
The suggestion to develop a convention to avoid discus sion at that stage or to prevent it by any other device adopted by the Speaker after admitting the motion, does not appear to be a satisfactory solution or explanation.
That this obvious situation could have been left unprovided for and the field left to a convention to be developed later, while enacting these provisions with extreme care and cau tion in a written Constitution, is extremely unlikely.
This indicates that this area is not left uncovered which too is a pointer that the stage at which the bar in Article 121 is lifted, is the starting point of the parliamentary process i.e. when the misbehaviour or incapacity is proved; the stage from the initiation of the process by ' making the allegation, its mode, investigation and proof are covered by the law enacted under clause (5); in case the allegation is not proved, the condition precedent to invoke the Parlia ment 's jurisdiction under clause (4), does not exist, which is the reason for section 6 of 1968 Act saying so; and in case it is proved, the 61 process under clause (4) commences, culminating in the result provided in it.
In Part V of the Constitution relating to 'The Union ', Article 124 is in 'Chapter IV The Union Judiciary ' while Articles 118 and 119 relating to Parliament 's power to make rules or enact a law to regulate its procedure and the conduct of its business are in 'Chapter II Parliament ' under the heading 'Procedure Generally ' wherein Article 121 also finds place.
The context and setting in which clause (5) appears along with clause (4) in Article 124 indicate its nature connected with clause (4) relating to curtailment of a Judge 's tenure, clause (4) providing the manner of removal and clause (5) the pre requisite for removal distin guished from Articles 118, 119 and 121, all of which relate to procedure and conduct of business in Parliament.
Article 124(5) does not, therefore, operate in the same field as Article 118 relating to procedure and conduct of business in Parliament.
Accordingly, the scheme is that the entire process of removal is in two parts the first parts under clause (5) from initiation to investigation and proof of misbehaviour or incapacity is covered by an enacted law, Parliament 's role being only legislative as in all the laws enacted by it; and the second part only after proof under clause (4) is in Parliament, that process commencing only on proof in accordance with the law enacted under clause (5) Thus the first part is entirely statutory while the second part alone is the parliamentary process.
The Constitution intended a clear provision for the first part covered fully by enacted law, the validity of which and the process thereunder being subject to judicial review independent of any political colour and after proof it was intended to be a parliamentary process.
It is this synthesis made in our Constitutional Scheme for removal of a Judge.
If the motion for presenting an address for removal is envisaged by Articles 121 and 124(4) 'on ground of proved misbehaviour or incapacity ' it presupposes that misbehaviour or incapacity has been proved earlier.
This is more so on account of the expression 'investigation and proof used in clause (5) with specific reference to clause (4).
This indicates that 'investigation and proof ' of misbehaviour or incapacity is not within clause (4) but within clause (5).
Use of the expression 'same session ' in clause (4) without any reference to session in clause (5) also indicates that session of House has no significance for clause (5) i.e., 'investigation and proof ' which is to be entirely governed by the enacted law and not the parliamentary practice which may be altered by each Lok Sabha.
62 45.The significance of the word 'proved ' before the expression 'misbehaviour or incapacity ' in clause (4) of Article 124 is also indicated when the provision is compared with Article 317 providing for removal of a member of the Public Service Commission.
The expression in clause (1) of Article 317 used for describing the ground of removal is 'the ground of behaviour ' while in clause (4) of Article 124, it is, 'the ground of proved misbehaviour or incapaci ty '.
The procedure for removal of a member of the Public Service Commission is also prescribed in clause (1) which provides for an inquiry by the Supreme Court on a reference made for this purpose.
In the case of a Judge, the procedure for investigation and proof is to be in accordance with the law enacted by the Parliament under clause (5) of Article 124.
In view of the fact that the adjudication of the ground of misbehaviour under Article 317 (1) is to be by the Su preme Court, in the case of a Judge who is a higher consti tutional functionary, the requirement of judicial determina tion of the ground is re inforced by the addition of the word 'proved ' in Article 124(4) and the requirement of law for this purpose under Article 124(5).
Use of the word 'may ' in clause (5) indicates that for the 'procedure for presentation of address ' it is an enabling provision and in the absence of the law the general procedure or that resolved by the House may apply but the 'investigation and proof ' is to be governed by the enacted law.
The word 'may ' in clause (5) is no impediment to this view.
On the other hand, if the word 'shall ' was used in place of 'may ' in clause (5) it would have indicated that it was incumbent on the Parliament to regulate even the proce dure for presentation of an address by enacting such a law leaving it no option even in the matter of its procedure after the misbehaviour or incapacity had been investigated and found true. 'Sometimes, the legislature uses the word "may" out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed. ' (See: State of Uttar Pradesh vs Joginder Singh; , at 202.
Indeed, when a provision is intended to effectuate a right here it is to effectuate a constituational protection to the Judges under Article 124 (4) even a provision as in Article 124 (5) which may otherwise seem merely enabling, becomes mandatory.
The exercise of the powers is rendered obligatory.
In Fred eric Guilder julius vs The Right Rev.
The Lord Bishop of Oxford; the Rev. Thomas Tellsson Carter, [1879 80] 5 A.C. 214 at p. 24zt, Lord Blackburn said: ,.The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right. " 63 In Punjab Sikh Regular Motor Service, Moudhapura vs The Regional Transport ,Authority, Raipur & Anr, ; , this Court referring to the word 'may ' in Rule 63 (a) in Central Provinces and Berar Motor Vehicles Rules, 1940, observed: ".
On behalf of the appellant attention was drawn to the expression 'may ' in Rule 63.
But in the context and the language of the rule the word 'may ' though permissive in form, must be held to be obligatory.
Under Rule 63 the power to grant renewal of the counter signa ture on the permit in the present case is conferred on the Regional Transport Authority, Bilaspur.
The exercise of such power of renew al depends not upon the discretion of the authority but upon the proof of the particular cases out of which such power arises. 'Ena bling words are construed as compulsory when ever the object of the power is to effectuate a legal right '.
(See: Julius vs Bishop of Oxford, 5 A.C. 214, 244). " If the word 'may ' in Article124 (5) is given any other meaning that sub Article would render itself, to be treated by the Parliament, as superfluous, redundant and otiose.
The power to prescribe a procedure for the exercise of power under Article 124 (4) could otherwise also be available to the House.
The law envisaged under Article 124(5) is not such a law; but one which would effectuate the constitution al policy and philosophy of the machinery for removal of Judges.
The use of the word 'may ' does not, therefore, neces sarily indicate that the whole of clause (5) is an enabling provision leaving it to the Parliament to decide whether to enact a law even for the investigation and proof of the misbehaviour or incapacity or not.
The mere fact that clause (5) does not form a part of clause (4) itself, as appears to have been considered at one stage when the constitution was being drafted, does not reduce the significance or content of clause (5).
It is likely that the framers of the Constitution thought of clearly demarcating the boundaries and, therefore, indicated that upto the stage of proof of misbehaviour of incapacity the field is covered by a law enacted by the Parliament, the first pan being covered by clause (5) and the latter by clause (4) with the only difference that the Parliament was given the option to regulate even the procedure for the presentation of an address after the misbehaviour or inca pacity had been proved by enacting a law for the purpose to make it more definite and consistent.
64 48.
Similarly, use of word 'motion ' to indicate the process of investigation and proof in the because the allegations have to be presented to the 'Speaker ' does not make it 'motion in the House ' not withstanding use of that expression in Section 6.
Otherwise, section 6 would not say that no further step is to be taken in case of a finding of 'not guilty '.
It only means that when the allegation is not proved, the Speaker need not commence the process under clause (4) which is started only in case it is proved.
The Speaker is, therefore, a statutory authority under the Act chosen because the further process is parliamentary and the authority to make such a complaint is given to Members of Parliament.
Moreover, to the enact ment under Article 124(5) cannot be a safe guide to deter mine the scope of Article 124(5).
If this construction of the inter connection amongst Articles 118,121, 124 (4) and 124 (5) is the proper one to be placed on them, as indeed we so do, the provisions of the do not foul with the Constitutional Scheme.
On scope of the law under Article 124(5), the idea of regulating procedure for (i) Presentation of the address; (ii) Investigation and proof of misbehaviour or incapacity admit of two possible options of interpretation.
The idea of "Presentation of the address" may be confined to the actual presentation of address by both Houses of the Parliament; or may be held to cover the entire process from initiation by the motion in the House till the final act of delivery of the address.
If the first view is correct the law under Article 124(5) would apply at the stage of investigation and proof of misbehaviour or incapacity and at the final stage of presentation of address after the motion is adopted by both the Houses.
The motion and its consideration and adop tion by the House would be outside the ambit of such law and it would be regulated by the rule of procedure made under Article I 18.
This view is too narrow.
By bringing in the rules of procedure of the House made under Article 118 it introduces an element of uncertainty and might affect inde pendence of the judiciary.
Second view is to be preferred.
It enables the entire process of removal being regulated by a law of Par liament ensures uniformity and reduces chances of arbi trariness.
Article I 18 is a general provision conferring on each House of Parliament the power to make its own rules of procedure.
These rules are not binding on the House and can be altered by the House at any time.
A breach of such rules amounts to an irregularity and is not subject to judicial review in view of Article 122.
Article 124(5) is in the nature of a special provi sion intended to regulate the procedure for removal of a Judge under Article 124(4) which 65 iS not a part of the normal business of the House but is in the nature of special business.
It covers the entire field relating to removal of a Judge.
Rules made under Article 118 have no application in this field.
Article 124(5) has no comparison with Article 119.
Articles 118 and 119 operate in the same field viz. normal business of the House.
It was, therefore, necessary to specifically prescribe that the law made under Article 119 shall prevail over the rules of procedure made under Article 118.
Since Article 118 and 124(5) operate in different fields a provision like that contained in Article 119 was not necessary and even in the absence of such a provision, a law made under Article 124 (5) will override the rules made under Article 118 and shall be binding on both the Houses of Parliament.
A violation of such a law would constitute illegality and could not be immune from judical scrutiny under Article 122(1).
Indeed, the Act reflectS the constitutional philoso phy of both the judicial and political elementS of the process of removal.
The ultimate authority remains with the Parliament in the sense that even if the Committee for investigation records a finding that the Judge is guilty of the charges it is yet open to the Parliament to decide not to present an address to the President for removal.
But if the Committee records a finding that the Judge is not guilty, then the political element in the process of removal has no further option.
The law is, indeed, a civilised piece of legislation reconciling the concept of accountability of Judges and the values of judicial independence.
Indeed, the dissenting note of Dr. L.M. Singhvi, in the Report of the Joint Committee on the Judges (Inquiry) Bill, 1964 brings into sharp focus the thrust of the report of the majority.
It is to be recalled that the 1964 Bill vested the power to initiate the process of removal with the Executive.
That was found objectionable and inconsistent with the idea of judicial independence.
However, as to the nature of the authority which was the repository of the power to investigate, the dissenting opinion, by necessary implication, emphasises the majority view which ultimately became the law.
Dr. Singhvi in his dissent says: "10.
The present Bill seeks to provide only the modality of a tribunal clothed in the nomenclature of a Committee.
The Committee contemplated in the Bill may well be consid ered a tribunal or an "authority" within the meaning of Articles 226 and 227 of the Consti tution, rendering itS work subject to judicial review and supervision.
What is more, the Parliament is not left with any choice in the matter and procedure of parliamen 66 tary committee has been wholly excluded.
With this I am not in agreement.
In both these matters in respect of which I have dissented from my esteemed colleagues in the Joint Select Committee, there appears to be an imprint on the provisions of the Bill of the now defunct Burmese Constitution, which provided that a notice of such resolution should be signed by not less than one fourth of the total membership of either Chamber of Parliament and further that the charge would be investigated by a special tribunal (section 143 of the Burmese Constitution).
In the Burmese case, the special tribunal was to consist of the President or his nominee and the Speakers of the Chamber of Nationalities and the Cham ber of Deputies.
I feel that the Burmese analogue is neither inspiring nor instructive, and that the more highly evolved procedures of other democratic constitutions which have been tried and tested for centuries would have served us better".
Our conclusions, therefore, on contentions B, C and D are as under: The constitutional process for removal of a Judge upto the point of admission of the motion, constitution of the Committee and the recording of findings by the Committee are not, strictly, proceedings in the Houses of Parliament.
The Speaker is a statutory authority under the Act.
Upto that point the matter cannot be said to remain outside the Court 's jurisdiction.
Contention B is answered accordingly.
Prior proof of misconduct in accordance with the law made under Article 124(5) is a condition precedent for the lifting of the bar under Article 121 against discussing the conduct of a Judge in the Parliament.
Article 124 (4) really becomes meaningful only with a law made under Article 124(5).
Without such a law the constitutional scheme and process for removal of a Judge remains inchoate.
Contention C is answered accordingly.
The Speaker while admitting a motion and constituting a Committee to investigate the alleged grounds of misbehaviour or incapacity does not act as part of the House.
The House does not come into the picture at this stage.
The provisions of the are not unconstitutional as abridging the powers and privileges of the House.
The is constitutional and is intra vires.
Contention D is disposed of accordingly.
67 RE: CONTENTION (E) 56.
It is urged by Shri Sibal that having regard to the serious consequences that flow from the admission of a motion by the Speaker and the decision to constitute a Committee for investigation, it is incumbent upon the Speak er to afford an opportunity to the Judge of being heard before such a decision is taken.
It is urged that such decision has momentous conseqences both to the Judge and to the judicial system as a whole and that any politically motivated steps to besmear a Judge will not merely affect the Judge himself but also the entire system of administra tion of justice.
If a motion brought up with collateral and oblique motives, it would greatly advance the objects and purposes of if the Judge con cerned himself is heard before a decision to admit a ,"notion which has shattering consequences so far as the Judge is concerned is taken.
The minimum requirements of natural justice, appropriate in the context, says learned counsel, require that the Judge should have an opportunity of being heard.
Shri Jethmalani, on the contrary, contended that it would be highly inappropriate that the Speaker should issue notice to a Judge and call upon him to appear before the Speaker.
That apart, Shri Jethmalani said at that stage of the proceedings where the Speaker merely decides that the matter might bear investigation no decisions affecting the rights, interests or legitimate expectation can be said to have been taken.
Shri Jethmalam sought to point out that these proceedings could not be equated with disciplinary or penal proceedings.
The Speaker does not decide anything against the Judge at that stage.
Referring to the nature and purpose of such preliminary proceedings Corpus Juris Secundum (Vol.
48A) says: "As a general rule, disciplinary or removal proceedings relating to Judges are sui generis and are not civil or criminal in nature; and their purpose is to inquire into judical conduct and thereby maintain standards of judicial fitness".
[p.614] As to the stage at which there is a need for notice and opportunity to the Judge to be heard the statement of the law is: "The general rule is that before a Judge may be disciplined, as by removal, he is entitled to notice and an opportunity to defend even though there is no statute so requiring.
Ordinarily, 68 the right to defend is exercised in a trial or hearing, as considered infra 51.
More specifi cally the Judge is entitled to notice of the particular charges against him.
In addition, notice of the charge should be given suffi ciently in advance of the time for presenting a defence to permit proper preparation of a showing in opposition".
(pp. 613 614) But negativing the position that the Judge would be entitled to notice even at the preliminary stage it is stated: "Investigations may be conducted into matters relating to judicial conduct as a preliminary to formal disciplinary proceedings.
A judiciary commission may conduct an investi gation into matters relating to judicial conduct as a preliminary to formal discipli nary proceedings, and a court may, under its general powers over inferior courts, appoint a special commissioner to preside over a prelim inary investigation.
A court rule providing that a Judge charged with misconduct should be given a reasonable opportunity in the course of a preliminary investigation to present such matters as he may choose, affords him more protection than is required by constitutional provisions".
[p. 615] 58.
The position is that at the stage of the provisions when the Speaker admits the motion under section 3 of the , a Judge is not, as a matter of right, entitled to such notice.
The scheme of the statute and rules made thereunder by necessary implication, exclude such a right.
But that may not prevent the Speaker, if the facts and circumstances placed before him indicate that hearing the Judge himself might not be inappropriate, might do so.
But a decision to admit the motion and constitute a Commit tee for investigation without affording such an opportunity does not, by itself and for that reason alone, vitiate the decision.
Contention E is disposed of accordingly.
RE:CONTENTION (F) 59.
The substance of this contention as presented by the learned counsel for the petitioner, "Sub Committee" argued with particular emphasis by Shri R.K. Garg is that the constitutional machinery for removal of a Judge is merely a political remedy for judicial misbehaviour 69 and does not exclude the judicial remedy available to the litigants to ensure and enforce judicial integrity.
It is urged that the right to move the Supreme Court to enforce fundamental rights is in itself a fundamental right and that takes within its sweep, as inhering in it, the right to an impartial judiciary with persons of impeccable integrity and character.
Without (his the fundamental right to move court itself becomes barren and hollow.
It is urged that the court itself has the jurisdiction nay a duty to ensure the integrity and impartiality of the members composing it and restrain any member who is found to lack in those essential qualities and attainments at which public confidence is built.
It is true that society is entitled to expect the high est and most exacting standards of propriety in judicial conduct.
Any conduct which tends to impair public confidence in the efficiency integrity and impartiality of the court is indeed forbidden.
In Corpus Juris Secundum (Vol.
48A) refer ring to the standards of conduct, disabilities and privi leges of Judges, it is observed: "The State which creates a judicial office may set appropriate standards of conduct for a Judge who holds that office, and in many jurisdictions, courts acting within express or implied powers have adopted or have followed certain canons or codes of judicial conduct.
The power of a particular court in matters of ethical supervision and the maintenance of standards for the judiciary may be exclusive.
Guidelines for judicial conduct are found both in codes of judicial conduct and in general moral and ethical standards expected of judi cial officers by the community.
Canons or codes are intended as a statement of general principles setting forth a wholesome standard of conduct for judges which will reflect credit and dignity on the profession and illsolar as they prescribe conduct which is malum in so as opposed to malum prohibitum they operate to restate those general prinici ples that have always governed judicial con duct.
Although these canons have been held to be binding on judges and may have the force of law where promulgated by the courts, except as legislatively enacted or judicially adopted they do not of themselves have the force and effect of law".
[pp. 593 594] the nature of prescribed conduct it is stated: 70 "A Judge 's official conduct should be free from impropriety and the appearance of impro priety and generally, he should refrain from participation in activities which may tend to lessen public respect for his judicial office.
It is a basic requirement, under general guidelines and canons of judicial conduct, that a Judge 's official conduct be free from impropriety and the appearance of impropriety and that both his official and personal beha viour be in accordance with the highest standard society can expect.
The standard of conduct is higher than that expected of lay people and also higher than that expected of attorneys.
The ultimate standard must be conducted which constantly reaffirms fitness for the high responsibilities of judicial office and judges must so comfor '.
themselves as to dignify the administration of justice and deserve the confidence and respect of the public.
It is immaterial that the conduct deemed objectionable is probably lawful albeit unjudicial or that it is perceived as lowhu mored horseplay.
In particular, a judge should refrain from participation in activities which may tend to lessen public respect for his judicial office and avoid conduct which may give rise to a reasonable belief that he has so participated.
In fact even in his private life a judge must adhere to standards of probity and propriety higher than those deemed acceptable for oth ers.
While a judge does have the right to entertain his personal views on controversial issues and is not required to surrender his rights or opinions as a citizen his right of free speech and free association are limited from time to time by his official duties and he must be most careful to avoid becoming involved in public controversies".
594~596] In Sampath Kumar & Ors.
vs Union of India & Ors, [1985 ] 4 S.C.C. 458, dealing with the qualifications, accomplish ments and attainments of the members of the Administrative Tribunal, which were intended to substitute for the High Courts, this court emphasised the qualities essential for discharging judicial functions.
But we are afraid the proposition that, apart from the constitutional machinery for removal of a Judge, the judiciary itself has the jurisdiction and in appropriate cases a duty to enquire into the integrity of one of its members and restrain the Judge from exercising judicial functions is beset with grave risks.
The court would then indeed be acting as a tribunal1 for the removal of a Judge.
Learned counsel supporting the proposition 71 stated that the effect of restraining a Judge from exercis ing judicial functions is not equivalent to a removal be cause the conditions of service such as salary etc.
of a Judge would not be impaired.
But we think that the general proposition that the court itself has such a jurisdiction is unacceptable.
It is productive of more problems then it can hope to solve.
The relief of a direction to restrain the Judge from discharging judicial functions cannot be granted.
It is the entire Constitutional Scheme including the provisions relat ing to the process of removal of a Judge which are to be taken into account for the purpose of considering this aspect.
It is difficult to accept that there can be any right in anyone running parallel with the Constitutional Scheme for this purpose contained in clauses (4) and (5) of Article 124 read with Article 121.
No authority can do what the Constitution by necessary implication forbids.
Inciden tally, this also throws light on the question of interim relief in such a matter having the result of restraining the Judge from functioning judicially on initiation of the process under the Judge (Inquiry) Act, 1968.
The Constitu tional Scheme appears to be that unless the alleged misbeha viour or incapacity is 'proved ' in accordance with the provisions of the law enacted under Article 124(5) and a motion for presenting an address for removal of the Judge on the ground of proved misbehaviour or incapacity is made, because of the restriction contained in Article 121, there cannot be a discussion about the Judge 's conduct even in the Parliament which has the substantive power of removal under Article 124(4).
If the Constitutional Scheme therefore is that the Judge 's conduct cannot be discussed even in the Parliament which is given the substantive power of removal, till the alleged misconduct or incapacity is 'proved ' in accordance with the law enacted for this purpose, then it is difficult to accept that any such discussion of the conduct of the Judge or any evaluation or inferences as to its merit is permissible according to law elsewhere except during investigation before the Inquiry Committee constituted under the statute for this purpose.
The indication, therefore, is that interim direction of this kind during the stage of inquiry into the alleged misbehaviour or incapacity is not contemplated it being alien to our Constitutional Scheme.
The question of propriety is, however, different from that of legality.
The absence of a legal provision, like Article 3 17(2) in the case of a Member of Public Service Commission, to interdict the Judge faced with such an inquiry from contining to discharge judicial functions pending the outcome of the inquiry or in the event of a finding of misbehaviour or incapacity being proved till the process of removal under Article 124(4) is complete, does not necessarily indicate that the Judge shall continue to function during that period.
That area is to be covered by the 72 sense of propriety of the learned Judge himself and the judicial tradition symbolised by the views of the Chief Justice of India.
It should be expected that the learned Judge would be guided in such a situation by the advice of the Chief Justice of India, as a matter of convention unless he himself decides as an act of propriety to abstain from discharging judicial functions during the interregnum.
Since the learned Judge would continue to hold the office of a Judge unless he resigns or is removed, an arrangement to meet the situation has to be devised by the Chief Justice.
The Constitution while providing for the suspension of a Member of a Public Service Commission in Article 3 17 (2) in a similar situation has deliberately abstained from making such a provision in case of higher constitutional function aries, namely, the Superior Judges and President and Vice President of India, facing impeachment.
It is reasonable to assume that the framers of Constitution had assumed that a desirable convention would be followed by a Judge in that situation which would not require the exercise of a power of suspension.
Propriety of the desirable course has to be viewed in this perspective.
It would also be reasonable to assume that the Chief Justice of India is expected to find a desirable solution in such a situation to avoid embarrass ment to the learned Judge and to the Institution in a manner which is conducive to the independence of judiciary and should the Chief Justice of India be of the view that the interests of the institution of judiciary it is desirable for the learned Judge to abstain from judicial work till the final outcome under Article 124(4), he would advise the learned Judge accordingly.
It is further reasonable to assume that the concerned learned Judge would ordinarily abide by the advice of the Chief Justice of India.
All this is, however, in the sphere of propriety and not a matter of legal authority to, permit any court to issue any legal directive to the Chief Justice of India for this purpose.
Accordingly Contention F is rejected.
RE:CONTENTION (G) 63.
This relates to the mala fides alleged against the Speaker.
The averments in this behalf are identical in both Raj Birbal 's and Sham Ratan Khandelwal 's peti tions.
We may notice the relevant averments: "It is, therefore, disconcerting to note that the Speaker acted contrary to Constitutional practice.
It is assumed that this high Consti tutional functionary would have known of the well settled and established constitutional practice in regard to the fact that motions lapse with the dissolution of the House.
The action of the Speaker, therefore, in admitting the motion in the manner that he did, smacks of mala fides and, therefore, de 73 serves to be struck down.
The action of the Speaker is mala fide on yet another count.
The Speaker has not resigned from the primary membership of the Janta Dal.
The petitioners verily believe that the first signatory to the motion is the erstwhile Prime Minister of India Shri V.P. Singh who happens also to be the leader of the Janta Dal.
The signatories to the said motion, the petition ers verily believe, belong mostly to the Janta Dal, though the details of this fact are not precisely known to the petitioners.
The Speak er, as has been indicated earlier, ought to have allowed parliament to look into the matter and discuss as to whether or not the motion ought to be admitted.
The Speaker ought to have at least tabled the motion in the House to ascertain the views of the Members of parliament belonging to various Houses.
The Speaker, to say the least, ought to have transmitted all materials to Justice Ramaswami and sought a response from him before attempt ing to admit the motion.
The Speaker ought to have dealt with the motion much earlier and transmitted to Justice Rammaswami all the materials as well as the views that might have been expressed to him in the course of his consultations which enabled him to come to a decision.
The Speaker in the very least ought to have ascertained the wishes of the House in this regard.
The Speaker ought not to have decided to admit the motion in the manner he did on the last evening of the 9th Lok Sabha amidst din and noise, when what he spoke was also not entirely audible in the House.
The Speaker is a high Constitutional functionary and ought to have exercised his functions in the highest traditions of the office of this high constitutional function ary.
The Speaker ought also not to have dealt with the motion, the prime movers of which are members of his own party. 'the Speaker ought to have disqualified himself in this regard and placed the matter for the discussion of the House.
The conduct of the Speaker in this entire episode was unbecoming of a high Con stitutional functionary.
The action of the Speaker is mala fide and deserves to be struck down on this count alone." The averments as to mala fides are intermixed with and inseparable from touching the merits of certain constitu tional issues.
Indeed, mala fides are sought to be impugned to the Speaker on the grounds that he did 74 not hear the Judge, did not have the motion discussed in the House etc.
We have held these were not necessary.
But a point was made that the Speaker not having entered appearance and denied these allegations on oath must be deemed to have admitted them.
It appears to us that even on the allegations made in the petition and plea of mala fides which require to be established on strong grounds, no such case is made out.
A case of mala fides cannot be made out merely on the ground of political affiliation of the Speaker either.
That may not be a sufficient ground in the present context.
At all events, as the only statutory au thority to deal with the matter, doctrine of statutory exceptions or necessity might be invoked.
Contention G cannot therefore be accepted.
RE :CONTENTION (H) 65.
This pertains to the locus standi of "Sub Committee on the Judicial Accountability" and the Supreme Court Bar Association to maintain the proceedings.
If this is true, then the petitioners in Transfer Petition No. 278 of 1991 and other writ petitions challenging the Speaker 's decision would not also have the necessary standing to sue.
The law as to standing to sue in public interest actions had under gone a vast change over the years and liberal standards for determining locus standi are now recognised.
The matter has come to be discussed at considerable care and length in S.P. Gupta & Ors.
vs Union of India & Ors. etc.
, [1982] 2 SCR 365.
The present matter is of such nature and the constitutional issues of such nature and importance that it cannot be said that members of the Bar, and particularly the Supreme Court Bar Association have no locus standi in the matter.
An elaborate re survey of the principles and prece dents over again is unnecessary.
Suffice it to say that from any point of view the petitioners satisfy the legal equip ments of the standing to sue.
We, therefore, reject the Contention H. 66.
We are constrained to say that certain submissions advanced on the prayer seeking to restrain the learned judge from functioning till the proceedings of the committee were concluded lacked as much in propriety as in dignity and courtesy with which the learned judge is entitled.
The arguments seemed to virtually assume that the charges had been established.
Much was sought to be made of the silence of the Judge and his refusal to be drawn into a public debate.
If we may say so with respect, learned judge was entitled to decline the invitation to offer his explanation to his detractors, No adverse inference as to substance and validity of the 75 charges could be drawn from the refusal of the learned judge to recognise these forums for his vindication.
While the members of the bar may claim to act in public interest they have, at the same time, a duty of courtesy and particular care that in the event of the charges being found baseless or insufficient to establish any moral turpitude, the judge does not suffer irreparably in the very process.
The ap proach should not incur the criticism that it was calculated to expose an able and courteous judge to public indignity even before the allegations were examined by the forum constitutionally competent to do so.
We wish the level of the debate both in and outside the Court was more decorous and dignified.
Propriety required that even before the charges are proved in the only way in which it is permitted to be proved, the Judge should not be embarrassed.
The constitutional protection to Judges is not for theft person al benefit; but is one of the means of protecting the judi ciary and its independence and is, / therefore, in the larger public interest.
Recourse to constitutional methods ' must be adhered to, if the system were to survive.
Learned Judge in his letter to the Registrar General which he de sired to be placed the Court had, indeed, expressed deep anguish at the way the petitioners had been permitted them selves to sit in judgment over him and deal with him the way they did.
RE: CONTENTION (I) 67.
This argument suggests that the court should, having regard to the nature of the area the decision of the court and its writ is to operate in, decline to exercise its jurisdiction, granting it has such jurisdiction.
It is urged that any decision rendered or any writ issued might, in the last analysis, become futile and infructuous as indeed the Constitution of and investigation by the committee are not, nor intended to be, an end by themselves culminating in any independent legal consequences but only a proceeding prelim inary to and preceding the deliberations of the House on the motion for the presentation of an address to the President for the removal of a Judge.
The latter, it is urged, is indisputably with in the exclusive province of the Houses of parliament over which courts exercise no control or juris diction.
The constitution of and the proceedings before the committee are, it is urged, necessarily sequential to and integral with the proceedings in the Houses of Parliament.
SinCe the committee and its investigations have neither any independent existence nor separate legal effect otherwise than as confined to, and for the purposes and as part of the possible prospective proceedings in the Houses of Parlia ment, the court should decline to exercise jurisdiction on a matter which is of no independent legal consequence of its own and which, in the last analysis, falls and remains entirely in an area outside the courts ' jurisdiction.
It is urged 76 that both from the point of view of infructuousness, propri ety and futility, the court should decline the invitation to interfere even though that part of the proceedings pertain ing to the constitution of the committee might not strictly be within the exclusive area of Parliament.
Courts, it is urged, would not allow its process to expect in a matter which will eventually merge in something over which it will have no jurisdiction.
The elements of infructuousness, it is suggested, arise in two areas.
The first is, as is posited, what should happen if the Houses of Parliament choose to say that in their view the motion has lapsed? Would the court then go into the legality of the proceedings of the Houses of Par liament and declare the decision of the House void? The second area of the suggested source of infructuous ness is as to the consequences of the position that the Houses of Parliament would, notwithstanding the report of the committee, be entitled to decide not to present an address to the President to remove the Judge.
It is, it is said, for the House of Parliament to discipline the Govern ment if the House is of the view that Government is guilty of an illegal inaction on the Speaker 's decision as ulti mately the House has dealt with the committee 's report.
On the first point there is and should be no diffi culty.
The interpretation of the law declared by this court that a motion under section 3(2) of the , does not lapse upon the dissolution of the House is a binding declaration.
No argument based on an assumption that the House would act in violation of the law need be entertained.
If the law is that the motion does not lapse, it is erroneous to assume that the Houses of Parliament would act in violation of the law.
The interpretation of the law is within the exclusive power of the courts.
So far as the second aspect is concerned, what is now sought by the petitioners who seek the enforcement and implementation of the Speaker 's decision is not a direction to the committee to carry out the investigation.
Such a prayer may raise some issues peculiar to that situation.
But here, the Union.
Government has sought to interpret the legal position for purposes of guiding its own response to the situation and to regulate its actions on the Speaker 's decision.
That understanding of the law is now found to be unsound.
All that is necessary to do is to declare the correct constitutional position.
No specific writ of direction need issue to any authority.
Having regard to the nature of the subject matter and the purpose it is ultimately intended to serve all that is necessary is to declare the legal and constitu 77 tional position and leave the different organs of the State to consider matters falling within the orbit of their re spective jurisdiction and powers.
Contention I is disposed of accordingly.
In the result, for the foregoing reasons, Writ Petition Nos. 491 and 541 of 1991 are disposed of by the appropriate declarations of the law as contained in the judgment.
Writ Petition Nos. 542 and 560 of 1991 are dismissed.
Transfer Petition No. 278 of 1991 is allowed.
Writ Petition No. 1061 of 1991 is withdrawn from the Delhi High Court.
The transferred writ petition is also dismissed.
SHARMA, J. I have gone through the erudite Judgment of my learned Brothers, and I regret that I have not been able to persuade myself to share their views.
In my opinion, all these petitions are fit to be dismissed.
The stand of the petitioners in W.P. (C) Nos. 491 of 1991 and 541 of 1991 is that the inquiry with respect to the alleged misbehaviour of Mr. Justice V. Ramaswami, the third respondent in W.P. (C) No. 491 of 1991, which was referred to a Committee under the provisions of the ought to proceed and accordingly the Union of India must take all necessary steps.
The main arguments on their behalf have been ad dressed by Mr. Shanti Bhushan, Mr. Ram Jethmalani and Mr. R.K.Garg, all appearing for the petitioners in W,P. (C) No. 491 of 1991, which has been treated as the main case.
Al though in substance their stand is similar, they are not consistent on some of the points debated during the heating of the case.
They have been supported in general terms by Ms. Indira Jaising and Mr. P.P. Rao, the learned counsel representing the Supreme Court Bar Association, the peti tioner in W.P. (C) No. 541 of 1991, and for the sake of convenience the petitioners in these two cases shall be hereinafter referred to as the petitioners.
The opposite point of view has been pressed by Mr. Kapil Sibal, on behalf of Mrs. Raj Birbal, the petitioner in T.P. (C) No. 278 of 1991, Mr. V.R.Jayaraman intervenor in W.P. (C) No. 491 of 1991 and Mr. Shyam Ratan Khandelwal, the petitioner in W.P.(C) No. 560 of 1991; and in view of their stand, they shall be referred to as respondents in this judgment.
The Committee for the investigation into the alleged misbehaviour of the third respondent was constituted on 12.3.1991 under the provi 78 sions of the (hereinafter re ferred to as the Act) by Shri Rabi Ray, the then Speaker of the Lok Sabha, not a party in W.P. (C) Nos. 491 of 1991 and 541 of 1991, but impleaded by Mr. Shyam Ratan Khandelwal as respondent No. 1 in W.P. (C) No. 560 of 1991.
The Lok Sabha was dissolved the very next day, i.e. 13.3.1991.
Mr. Attorney General appearing on behalf of the Union of India has contended that this Court should affirm the views expressed by the Union of India in its affidavit that on dissolution of the last Lok Sabha, the Motion against the third respondent lapsed and the matter cannot proceed further.
According to the case of the petitioners, once the Committee was constituted, the entire inquiry must be com pleted in accordance with the provisions of the Act, and the stand of the Union Government that the Motion in this regard lapsed on the dissolution of the House is fit to be reject ed.
The Union Government, in the circumstances, is under a duty to act in such manner by way of providing funds et cetera, that it may be practically possible for the Commit tee to complete its task.
Since the obligation to act ac cordingly, arises under the Act, this Court has full author ity to enforce the performance of the statutory duty; and having regard to the circumstances in the present case it is appropriate to exercise that power.
The petitioners further pray that in the meantime the third respondent should not undertake to dispose of judicial matters, and since he has not himself refrained from so doing, no judicial work should be allotted to him.
The Chief Justice of India has also been impleaded as a party respond ent but this Court while issuing Rule Nisi after hearing learned counsel for the parties, did not consider it expedi ent to issue notice to the Chief Justice.
A prayer for interim direction in this regard was also rejected.
During the hearing of the cases another application to the same effect was filed and was heard at considerable length and ultimately rejected by a reasoned order.
Mr. Sibal, the learned counsel for the respondents has challenged the maintainability of the writ petitions, on the ground that the matter is not justiciable.
It was fur ther argued that since the Speaker proceeded to admit the Notice of Motion initiated by 108 Members of the Lok Sabha without reference to the House, the order of the Speaker was void, and the constitution of the Committee is ultra vires.
The Speaker 's order has been challenged also on the grounds of violation of principles of natural justice and mala fides.
So far as the effect of the dissolution of the 79 last Lok Sabha is concerned the respondents have supported the stand of the Union Government that the Motion has lapsed, but consistent with their plea.
of non justiciabili ty, Mr. Sibal has indicated that it is for the House to decide this issue.
Long arguments were addressed by the learned counsel for the parties on the correct interpretation of Article 124(4) and (5) and the Act, and Mr. Sibal has contended that if the construction suggested by him of the provisions of the Act are not accepted, the Act has to be struck down either in its entirety or in part as ultra vires the Constitution.
In W.P. (C) No. 560 of 1991 Mr. Shyam Ratan Khandelwal has, inter alia, prayed for declaring the and the Rules framed thereunder as ultra vires Article 121 and 124(5) of the Constitution; for quashing the decision of the Speaker; and, for issuing a Writ of Mandamus to the Committee not to embark upon or proceed with the inquiry.
He also wants a declaration that the Chief Justice of India cannot withhold allocation of work to the third respondent for discharging his judicial functions, and seeks for consequential directions in this regard.
During the course of his argument, Mr. Sibal, in reply to a query from the Bench, clarified the position that if his plea of non justiciability is accepted, all the petitions may have to be dismissed.
It is appropriate that the point relating to the jurisdiction of this Court, and for that matter of any court in India, is considered first.
If the stand of the respond ents is correct on this issue, it may not be necessary to deal with the other questions raised by the parties.
In support of his argument, Mr. Sibal has relied upon the provisions of Article 122(2) of the Constitution read with Article 93, and has urged that the present matter relates to the conduct of the business of the Lok Sabha and is included within the functions of regulating its procedure, and as such the Speaker who is a Member and officer of the Parlia ment cannot be subjected to the jurisdiction of any Court in respect of the exercise of those powers.
The questions whether the Motion on the basis of which the present inquiry by the Committee has been ordered has lapsed or not and whether the inquiry should further proceed or not are for the House to determine, and its decision will be final.
Reference was also made to Article 100, but the learned counsel clarified his stand that in the present context a special majority as indicated in Article 124(4) will have to be substituted for a simple majority mentioned in Article 100(1).
It has been contended that the Speaker was not free to take a decision by himself to refer the matter to the Committee for inquiry and that too without hearing the Judge concerned; and in any event his order is subject to any decision 80 to the contrary of the House arrived at, at any stage.
Emphasis was laid on the concept of Separation of State powers amongst its three wings, and it was claimed that all matters within the House including moving of motions, ad journment motions and debates are beyond the purview of judicial scrutiny.
Counsel said that it does not make any difference that in the present case it is the Union Govern ment, which has taken a decision for itself on the disputed issue; and the petitioners cannot use this as an excuse for approaching the Court.
The Court should refuse to entertain the writ petitions on this ground, as it cannot be persuaded to do indirectly what it cannot do directly.
The crux is that the matter is in the exclusive domain of the Parlia ment.
Although in my final conclusion I agree with the respondents that the courts have no jurisdiction in the present matter, I do not agree with Mr. Sibal 's contention based on an assumption of the very wide and exclusive juris diction of the Parliament in the general terms, as indicated during his argument.
His stand that the Speaker could not have taken a decision singly also does not appear to be well founded.
He strenuously argued that since the matter relat ing to the removal of a Judge is from the very beginning within the exclusive control of one of the Houses of the Parliament every decision has to be taken by the entire House and if necessary a debate will have to be permitted.
As a result, the bar on discussion in the House on the Judges ' conduct will disappear from the initial stage it self, but that cannot be helped.
He relied upon the inter pretation of Mr. M.C.Setalvad on clauses 4 & 5 of Article 124 as stated by him before the Joint Committee on the Judges (inquiry) Bill, 1964 (being Bill No. 5 of 1964 which was ultimately dropped) and his view that the desired object of avoiding debate on the conduct of a Judge in the Parlia ment can be achieved only by the Speaker carefully exercis ing his discretion after taking into account the impropriety of such a debate.
Although the powers of State has been distributed by the Constitution amongst the three limbs, that is the Legis lature, the Executive and the Judiciary, the doctrine of Separation of Powers has not been strictly adhered to and there is some overlapping of powers in the gray areas.
A few illustrations will show that the courts ' jurisdiction to examine matters involving adjudication of disputes is sub ject to several exceptions.
Let us consider a case in which an individual citizen approaches the Court alleging serious violation of his fundamental rights resulting in grave and irreparable injury, arising as a consequence of certain acts, and the decision of his claim is dependent on the adjudication of a dispute covered by Article 262 or Article 363.
He does not have a legal remedy before the courts.
Similarly a Member of Parliament or of a State Legislature who 81 may have a just grievance in matters covered by Article 122(2) or 212(2) cannot knock the doors of the courts.
Let us take another example where a group of citizens residing near the border of the country are in imminent danger of a devastating attack from an enemy country in which they are sure to lose large number of lives besides theft property.
This can be averted only by accepting the terms offered by the enemy country, which are in their opinion reasonable and will be highly in the interest of the nation as a whole.
The concerned authorities of the State, however, hold a differ ent view and consider starting a war immediately as an unavoidable strategy, even in the face of imminent danger to the border area.
On an application by the aggrieved citi zens, the Court cannot embark upon an inquiry as to the merits and demerits of the proposed action of the State nor can it direct that the residents of the threatened area must be shifted to some safe place before starting of the war.
The examples can be multiplied.
Generally, questions involv ing adjudication of disputes are amenable to the jurisdic tion of the courts, but there are exceptions, not only those covered by specific provisions of the Constitution in ex press terms, but others enjoying the immunity by necessary implication arising from established jurisprudential princi ples involved in the Constitutional scheme.
It was observed by this Court in Smt.
Indira Gandhi vs Raj Narain, at page 415, that rigid Separation of Powers as under the American Constitution or under the Australian Constitution does not apply to our country and many powers which are strictly judicial have been excluded from the purview of the courts under our Constitution.
Judicial power of the State in the comprehensive sense of the expression as embracing all its wings is dif ferent from the judicial power vested or intended to be vested in the courts by a written Constitution.
The issue which arises in the present case is whether under the Con stitutional scheme a matter relating to the removal of a Judge of the superior courts (Supreme Court or High Courts) is within the jurisdiction of the courts or in any event of this Court.
On a close examination of the Constitution it appears to me that a special pattern has been adopted with respect to the removal of the members of the three organs of the State The Executive, the Legislature and the Judici ary at the highest level, and this plan having been con sciously included in the Constitution, has to be kept in mind in construing its provisions.
The approach appears to be that when a question of removal of a member of any of the three wings at the highest level i.e. the President; the Members of the Parliament and the State Legislatures; and the Judges of the Supreme Court and the High Courts arises, it is left to an organ other than where the problem has arisen, to be decided.
82 11.
The President has to be elected by the members of an electoral college as prescribed by Article 54, in the manner indicated in Article 55.
Since he has to exercise his func tions in accordance with the advice tendered by the Council of Ministers, the matter relating to his impeachment has been entrusted by Article 61 to the Parliament.
In the constitution of the two Houses of the Parliament and the Legislatures of the States, the people of the country are involved more directly, through process of election and any dispute arising therefrom is finally settled judicially.
When it comes to a disqualification of a sitting member, the matter is dealt with by Article 103 or 192 as the case may be and what is significant for the purpose of the present case is that instead of entrusting the matter to the rele vant House itself, the Constitution has provided for a different machinery, not within the control of the Legisla ture.
The decision on such a dispute is left to the Presi dent, and he is not to act on the advice of the Council of Ministers, but in accordance with the opinion of the Elec tion Commission which has been held by this Court to be a Tribunal falling squarely within the ambit of Article 136 of the Constitution in All Party Hill Leaders Conference vs
M. A. Sangma; , at 411.
Thus, the power to decide a dispute is not to be exercised by the Legislature, but lies substantially with the courts.
Consistent with this pattern clause (4) of Article 124 in emphatic terms declares that a Judge of the Supreme Court or the High Court shall not be removed from his office except on a special majority of the Members of each House of Parliament.
Both the Execu tive and the Judiciary are thus excluded in this process.
The provisions of the Constitution and the Act and relevant materials which ,viII be discussed later all unmistakably indicate this Constitutional plan.
The scheme, as mentioned above, which according to my reading of the Constitution has been adopted, cannot be construed as lack of trust in the three organs of the State.
There are other relevant considerations to be taken into account while framing and adopting a written constitution, which include the assurance to the people that the possibil ity of a subjective approach clouding the decision on an issue as sensitive as the one under consideration, has been as far eliminated as found practicable in the situation.
And where this is not possible at all, it cannot be helped, and has to be reconciled by application of the doctrine of necessity, which is not attracted here.
Hamilton, in "The Federalist", while discussing the position in the United States, observed that when questions arise as to whether a person holding very high office either in the Judiciary or the Legislature or the President himself has rendered him self unfit to hold the office, they are of a nature which relates chiefly to the injuries done immediately to the society itself.
Any proceeding for their removal will, 83 for this reason seldom fail to agitate the passions of the whole community and divide it into parties more or less friendly or inimical to the person concerned.
The delicacy and the magnitude of a trust which so deeply concerns the reputation and existence of every man engaged in the admin istration of public affairs speak for themselves.
Mr. Sibal has further relied on Hamilton stating that "the awful discretion which a court of impeachment must necessarily have to doom to honour or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust, to a small number of persons.
" The counsel added that presumably that is the reason that the question of removal of a Judge of the superior court has been exclusively entrusted to the parlia ment and further in that spirit the Act requires a large number of Members of the parliament to even give the Notice of Motion.
Quoting from 'Harvard Law Review ' (1912 1913 vol.), counsel argued that judicial office is essentially a public trust, and the right of the public to revoke this trust is fundamental.
In a true republic no man can be born with a right to public office, Under such a system of gov ernment, office, whether elective or appointive, is in a sense a political privilege.
The grant of this privilege flows from the political power of 'the people, and so, ulti mately must it be taken away by the exercise of the politi cal power resident in the people.
After referring to the view of many Jurists of international repute Mr. Sibal again came back to "The Federalist", considering the inappropri ateness of the Supreme Court of United States of America to be entrusted with the power of impeachment in the following words: "It is much to be doubted whether the members of that Tribunal at all times be endowed with so eminent a portion of fortitude, as would be called for in the execu tion of so difficult a task, and it is still more to be doubted whether they would possess the degree of credit and authority, which might, on certain occasions be indispens able towards reconciling the people to their decision".
I am not sure whether these are the.precise considerations which appealed to the framers of our Constitution to adopt the Scheme as indicated earlier, but there is no doubt that the subject dealing with the removal of the very high function aries in three vital limbs of the State, received special treatment by the Constitution.
My conclusion is further supported by the materials discussed below.
Learned counsel for the parties referred to the historical background of the relevant provisions of the Constitution and the Act, as also to the constitutional provisions of several other countries, as aid to the inter pretation of the legal position in relation to removal of Judges of the superior courts.
Mr. Sibal laid great emphasis on the evidence of Mr. 84 Setalvad and several other persons before the Joint Commit tee on the Judges (inquiry) Bill, 1964.
His argument is that the Bill was dropped as a result of the opinion expressed before the Joint Committee, and consequently another Bill was drafted which was ultimately adopted by the Parliament as the 1968./Act.
The provisions of the earlier Bill, objec tions raised thereto, and the fact that the Act of 1968 was passed on a subsequent Bill, reconstructed immediately after the decision to drop the original Bill, are all permissible aids to the interpretation of the legal position which has to be ascertained in the present cases before us.
Although the learned counsel for the petitioners challenge their admissiblity, portions of the documents referred to by Mr. Sibal were attempted to be construed on behalf of the peti tioners as supporting their stand.
In my view, it is permis sible to take into consideration the entire background as aid to interpretation.
The rule of construction of statutes dealing with this aspect was stated as far back as in 1584 in Heydon 's case: 76 E.R. 637, and has been followed by our Court in a large number of decisions.
While interpreting Article 286 of our Constitution, reliance was placed by this Court in the Bengal Immunity Company vs The State of Bihar, at 632 & 633, on Lord Coke 's dictum in Heydon s case and the observations.
of the Earl of Halsbury in Eastman Photographic Material Company vs Comptroller General of Patents L R., at p. 576 reaffirm ing the rule in the following words: "My Lords, it appears to me that to construe the statute in question, it is not only legit imate but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act had given rise, and to the later Act which provided the remedy.
These three being compared I cannot doubt the con clusion".
In B. Prabhakar Rao vs State of Andhra Pradesh, [1985] Suppl.
2 SCR 573, the observa tions at p. 591, quoted below, are illuminat ing: "Where internal aids are not forthcoming, we can always have recourse to external aids to discover the object of the legislation.
Exter nal aids are not ruled out.
This is now a well settled principle of modern statutory con struction.
Thus 'Enacting History ' is rele vant: "The enacting history of an Act is the surrounding corpus of public knowledge rela tive to its introduction into Parliament as a Bill, and subsequent progress through, and ultimate passing by, Parliament.
In particular it is the extrinsic material assumed to be within the contemplation of Parliament when it passed the Act." Again "In the period im 85 mediately following its enactment, the history of how an enactment is understood forms part of the contemporanea expositio, and may be held to throw light on the legislative inten tion.
The later history may, under the doc trine that an Act is always speaking, indicate how the enactment is regarded in the light of development from time to time".
"Official statements by the government department admin istering an Act, or by any other authority concerned with the Act, may be taken into account as persuasive authority on the meaning of its provisions".
Justice may be blind but it is not to be deaf.
Judges are not to sit in sound proof rooms.
Committee reports, Parliamentary debates, Policy statements and public utterances of official spokesmen are of relevance in statu tory interpretation.
But 'the comity, the courtsey and respect that ought to prevail between the two prime organs of the State, the legislature and the judiciary ', require the courts to make skilled evaluation of the extra textual material placed before it and exclude the essentially unreliable. "Nevertheless the court, as master of its own procedure, retains a residuary right to admit them where, in rare cases, the need to carry out the legisla tor 's intention appears to the court so to require".
With a view to correctly interpret the Act which was the subject matter of that case, the history and the succession of events including the initial lowering the age of superan nuation, the agitation consequent upon it, and the agreement that followed the agitation were all taken into considera tion.
I, accordingly, propose to briefly state the relevant background of both the Constitutional provisions and of the Act.
At the time of framing of the Constitution of India, the Constitutions of several other countries, which appeared to be helpful were examined, and a Draft was initially prepared.
On the amendment moved by Sir Alladi Krishnaswamy Iyyar the relevant provision was included in the Draft in terms similar to section 72(ii) of the Commonwealth of Australia COnstitution Act (1900) except the last sentence in the following terms: "Further provision may be made by the Federal Law for the procedure to be adopted in this behalf.
" When the matter was finally taken up by the Constituent Assembly the Debates indicate that there was a categorical rejection of the suggestion to entrust the matter to the Supreme Court or a Committee of a 86 number of sitting Judges of the Supreme Court; and while doing so, the law of the other Commonwealth countries were taken into consideration.
So far the last sentence of the draft was concerned, Sir Alladi explained the position by stating "that such a provision does not occur in other Constitutions, but there is a tendency to overelaborate the provisions on our side and that is the only justification for my putting in that clause.
Before further considering the Debates and the other steps in flaming of the Constitution, it may be useful to appreciate the relevance and importance of the point which has an impact on the controversial issue before us.
Accord ing to the petitioners, the question relating to the removal of a Judge comes to the Parliament only on receipt of a report by the Committee under the Act.
The Parliament or any of its Houses, not being in the picture earlier, does not have any control over the Committee, which is to function purely as a statutory body, and, therefore, amenable to the jurisdiction of this Court.
If this stand is correct, what was the position before 1968, when there was no Act? The question is whether the Parliament did not have any power to take any action even if an inquiry in the alleged misbeha viour or incapacity of a Judge was imminently called for.
In other words whether the exercise of the power under clause (4) of Article 124 by the Parliament was dependent on the enactment of a law under clause (5) and until this condition was satisfied no step under clause (4) could be taken.
If on the other hand the Parliament 's power was not subject to the enactment of a law, was it divested of this jurisdiction when it passed an Act? On what principle could the initial jurisdiction of the Parliament disappear in 1968? Since this aspect has a bearing, it was the subject matter of some discussion during the arguments of the learned advocates.
Mr. Sibal was emphatic in claiming that clause (5) was enabling in nature, and clause (4) could not be inter preted as dependent on clause (5).
He relied on Mr. Setal vad 's evidence before the Joint Committee of Bill No. 5 of 1964.
The stand of Mr. Shanti Bhushan, instructed by Mr. Prashant Bhushan, the Advocate on record on behalf of the petitioner in the leading case Writ Petition (C) No. 491 of 1991, has been that clause (5) was merely enabling, but not in the sense as stated by Mr. Setalvad in his evidence.
In the view of the latter, it is open to the Parliament either to follow the procedure laid down by an Act made under clause (5) or to ignore the same in any case and adopt any other procedure.
In other words, even after the passing of the 1968 Act, the Parliament can choose either to proceed according to the said Act or to act independently ignoring the same.
Mr. Shanti Bhushan said that this is not permissi ble.
Once the 1968 Act was enacted, the Parliament is bound to follow it, but earlier 87 it was free to proceed as it liked.
He, however, was quite clear in his submission that the exercise of power under clause (4) could not be said to be conditional on the enact ment of a law under clause (5), and that to interpret the provisions otherwise would lead to the extraordinary result that the Parliament was in a helpless condition for about 18 years till 1968, if a Judge was rendered unfit to continue.
I agree with the learned counsel.
The other learned advocates appearing for the peti tioners did not advert to this aspect pointedly.
The stand of Mr. Garg is that whether or not the third respondent is removed, or whether the inquiry proceeds before the Commit tee or not, he must cease to function as a Judge, as his image being under a cloud, must be cleared so that the people may have trust in the judiciary.
Mr. Ram Jethmalani, the other learned counsel who appeared on behalf of the petitioner in Writ petition (C).No. 491 of 1991, was ini tially of the view as Mr. Shanti Bhushan on the co relation of clause (4) and (5), but after some discussion, he recon sidered the position and took a positive stand that the exercise of power under clause (4) was dependent on a law being enacted under clause (5), and that the Parliament was bound to proceed in accordance with the provisions of the Act.
Now coming back to the Debates, Mr. Santhanam sug gested an amendment for including more details to which the answer of Sir Alladi was as follows: "We need not be more meticulous and more elaborate than people who have tried a similar case in other jurisdictions.
I challenge my friend to say whether there is any detailed provision for the removal of Judges more than that in any other Constitution in the world".
He requested the House to accept the general principle, namely, that the President in consultation with the Supreme Legislature of this country shall have that right, and assured that, "That does not mean that the Supreme Legisla ture will abuse that power".
He rejected the idea of making further additions to the provision relating to the framing of the law by saying, "To make a detailed provision for all these would be a noble procedure to be adopted in any Con stitution.
You will not find it in any Constitution, not even in the German Constitution which is particularly de tailed, not in the Dominion Constitution and not even in the Act of Settlement and the later Acts of British Parliament which refer to the" removal of Judges".
Some members strong ly suggested that the Supreme Court of India or a number of sitting Judges of the Court should be 88 involved in the proceeding, to which Sir Alladi had strong objection.
He called upon the members, "not to provide a machinery consisting of five or four Judges to sit in judg ment over a Chief Justice of the Supreme Court.
Are you really serious about enhancing the dignity of the Chief Justice of India ? You are.
I have no doubt about it".
The clause was ultimately drafted as mentioned above vesting the power in the "Supreme Parliament" as "there must be some power of removal vested somewhere".
He pointed out that the matter was not being left in the discretion of the either House to remove a Judge, but ultimate soverign power will be vested in the two Houses of the Parliament and, "that is the import of my amendment".
In this background, the Article was finally included in the Draft.
Although as was clear from the statements of Sir Alladi as also the language used, the intention of the Sub commit tee preparing the Draft was not to make clause (4) dependent on clause (5), still presumably with a view to allaying any misapprehension which could have arisen by including the entire provisions in one single clause, they were divided and put in two separate clauses and while so doing, the language was slightly changed to emphasise the limited scope of the law.
Clause (4) does not state that the misbehaviour or incapacity of the Judge will have to be proved only in accordance with a law to be passed by the Parliament under clause (5).
Clause (4) would continue to serve the purpose as it does now, without any amendment if clause (5) were to be removed from the Constitution today.
There is no indica tion of any limitation on the power of the Parliament to decide the manner in which it will obtain a finding on misbehaviour or incapacity for further action to be taken by it.
Clause (5) merely enables the Parliament to enact a law for this purpose, if it so chooses.
The word 'may ' has been sometimes understood in the imperative sense as 'shall ', but ordinarily it indicates a choice of action and not a com mand.
In the present context, there does not appear to be any reason to assume that it has been used in its extraordi nary meaning.
It is significant to note that while fixing the tenure of a Judge in clause (2) of Article 124, proviso Co) permits the premature removal in the manner provided in clause (4) without mentioning clause (5) at all.
The signif icance of the omission of clause (5) can be appreciated by referring to the language of clause 2(A) of Article 124 directing that the "age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide".
On an examination of all the relevant materials, I am of the view that the exercise of power under clause (4) was not made conditional on the enactment of a law under clause (5), and the reason for inserting 89 clause (5) in Article 124 was, as indicated by Sir Alladi, merely for elaborating the provisions.
The other provisions with reference to which the matter needs further examination are Article 121 of the Constitution and the Act of 1968.
The object of Article 121 is to prevent any discussion in Parliament with respect to the conduct of a Judge of the Superior Courts, except when it cannot be avoided.
The Article, accordingly, prohibits such a discussion except upon a motion for presenting an 'address ' to the President for removal of a Judge.
The point is that if the entire proceeding in regard to the removal of a Judge from the very initial stage is assumed to be in the House, does the bar under Article 121 get lifted at that very stage, thus frustrating the very purpose of the Arti cle.
There is a complete unanimity before us, and rightly so, that the object of Article 121 to prevent a public discussion of the conduct of a Judge is in public interest and its importance cannot be diluted.
Mr. Shanti Bhushan elaborated this aspect by saying that any such discussion in the House is bound to be reported through the media and will thus reach the general public and which by itself, irrespec tive of the final outcome of the discussion, will damage the reputation of the Judge concerned and thereby the image of the entire judiciary; and must not, therefore, be permitted until a report against the Judge after a proper inquiry is available.
Mr. Sibal also agreed on the significance of Article 121 and relied on the views of several eminent international jurists, but we need not detain ourselves on this point, as there is no discordant note expressed by anyone before us.
The question, however, is as to whether the object of Article 121 will be defeated, if clause (4) of Article 124 is construed as complete in itself and independ ent of clause (5), and clause (5) be understood as merely giving an option to the Parliament to enact a law, if it so chooses; and further whether the inquiry before the Commit tee is within the control of the House of the Parliament so as to exclude an outside interference by any other authori ty, including the courts.
It is true that the provisions of an Act control or determine the constitutional provisions, but where the meaning of an Article is not clear it is permissible to take the aid of other relevant materials.
Besides, in the present context, where it is necessary to assess the effect of the construction of the other provisions of the Constitution and of the Act on Article 121, the Act provides useful assist ance; and its importance has been greatly enhanced in view of the points urged in the arguments of the learned counsel for the parties before us.
All the learned advocates for the petitioners as also the Attorney General are positive that the Act is a perfectly valid piece of legislation and no part of it is illegal or ultra vires.
It is on 90 this premise that the writ petitions of the petitioners have been filed and the reliefs are prayed for.
Mr. Sibal repre senting the respondents has halfheartedly challenged the Act, making it clear at the same time that if his interpre tation of the provisions is accepted no fault can be found with the Act.
Besides, the foundation of the reliefs, asked for in the writ petitions, is the Act and the inquiry there under and if the Act itself goes, the reference to the Committee of Inquiry itself will have to be held as nonex istent in the eye of Law and the writ petitions will have to be rejected on that ground alone.
We must, therefore, assume for the purpose of the present cases, that the Act is good and on that basis if the petitioners be found to be entitled to any relief, it may be granted.
I am emphasising this aspect as the Act gives a complete answer to the main ques tion as to whether the Committee is subject to the control of the Lok Sabha, and whether this construction of the provisions defeats the purpose of Article 121.
The is a short enactment containing only seven sections.
Section 1 gives the title and the date of commencement, Section 2 contains definitions and Section 7 deals with power to make rules.
The expression "motion" which has not been defined in the Act is signifi cant in the scheme and naturally, therefore, has been sub ject of considerable discussion during the hearing of these cases.
The Lok Sabha Rules flamed under Article 118 of the Constitution deal with "motions" in Chapter XIV.
There are separate rules of procedures for conduct of business adopted by the Rajya Sabha.
In view of the facts of this case, I propose to refer only to the Lok Sabha Rules.
Section 3(1) of the states that if a notice of"motion" is given for presenting an address to the Presi dent for the removal of a Judge, signed, in the case of a notice given in the Lok Sabha, by not less than 100 members, and in the case of a notice given in the Rajya Sabha, by not less than 50 members of the House, the Speaker or the Chair man, as the case may be, after consulting such persons as he deems fit, as also such relevant materials which may be available to him, either admit the "motion" or refuse to admit the same.
The manner in which this section refers to "motion" in the Act for the first time without a definition or introduction clearly indicates that it is referring to that "motion" which is ordinarily understood in the context of the two Houses of Parliament attracting their respective rules.
Section 3 does not specify as to how and to whom this notice of "motion" is to be addressed or handed over and it is not quite clear how the Speaker suddenly comes in the picture unless the Lok Sabha Rules are taken into account.
Rule 185 states that notice of "motion" shall be given in writing addressed to the Secretary General and its ' admissi bility should satisfy the conditions detailed in Rule 186.
Rule 187 directs the 91 Speaker to examine and decide the admissibility of a "mo tion" or a part thereof.
Rule 189 says that if the Speaker admits notice of a "motion" and no date is fixed for discus sion of such "motion", it shall be notified in the BUlletin with the heading "No,Day Yet Named Motions".
It is at this stage that 1968 Act by Section 3(1) takes over the matter and asks the Speaker to take a decision for admitting this "motion" or refusing it after consulting such persons and materials as he deems fit.
The conclusion is irresistible that the provisions of the Act have to be read along with some of the Lok Sabha Rules.
Rules 185, 186 and 187 should be treated to be supplementary to the Act.
Then comes sub section (2) of Section 3 which is of vital importance in the present context.
It says that if the "motions" referred to in sub section (1) is admitted, the Speaker "shall keep the motion pending" and constitute a Committee for investigation into the allegations consisting of three members of whom one shall be chosen among Chief Justice and other Judges of the Supreme Court and another from among the Chief Justices of the High Court.
The situs where the "motion" is pending is almost conclusive on the issue whether the House is seised of it or not.
Unless the "motion" which has to remain pending, as directed by Section 3(2) is outside the House and the Speak er while admitting it acts as a statutory authority and not qua Speaker of the Lok Sabha, as is the case of the peti tioners before us, the petitioners will not have any base to build their case on.
If the Speaker has admitted the "mo tion" in the capacity as the Speaker and consequently, therefore, representing the House, and has constituted a Committee, it will be entirely for him and through him the House, to pass any further order if necessary about the future conduct of the Committee, and not for this Court, for, the Committee cannot be subjected to a dual control.
So the question to ask is where is the "motion" pending, which is promptly answered by the provisions in the Act, by de claring that it remains pending in the House.
Section 6 deals with the matter from the stage when the report of the Committee is ready and sub section (1) says that if the report records a finding in favour of the Judge, "the motion pending in the House" shall not be proceeded with.
If the report goes against the Judge, then "the motion referred to in sub section (1) of Section 2 shall, together with a report of the Committee, be taken for consideration by the House or the Houses of Parliament in which it is pending".
The Act, therefore, does not leave any room for doubt that the "motion" remains pending in the House and not outside it.
This is again corroborated by the language used in Proviso to Section 3 (2) which deals with cases where no tices of"motion" under Section 3(1) are given on the same date in both Houses of Parliament.
It says that in such a situation, no Committee shall be constituted unless the "motion" has been "admitted in 92 both Houses" and where such "motion"has been admitted "in both Houses", the Committe shall be constituted jointly by the Speaker and the Chairman.
The rule making power dealt with in Section 7 is in the usual terms enumerating some of the subject matters without prejudice to the generality of the power, and permits the Joint Committee of both Houses of Parliament to frame the rules, and accordingly, the Judges (Inquiry) Rules, 1969 were made.
Rule 2(e) of these Rules describes "motion" as motion admitted under Section 3(1) of the Act.
Supplementing the provisions of Section 6(2), Rule 16(2) provides that "a copy of the motion admitted under sub section (1) of section 3 shall be reproduced as an Annexure to such an address".
Sub rule (4) states that "the address prepared under subrule (1) and the motion shall be put to vote together in each House of Parliament".
It is clear that it is not an inadvertent reference in the Act of the "motion" being pending in the House; the provisions unmistakably indicate that the Act and the Rules envisage and deal with a "motion" which is admitted in the House and remains pending there to be taken up again when the date is fixed by the Speaker on receipt of the report from the Committee.
The language throughout the Act has been consist ently used on this premise and is not capable of being ingored or explained away.
Nowhere in the Act or the Rules, there is any provision which can lend any support to the stand of the petitioners before us.
The scope of the Act and the Rules is limited to the investigation in pursuance of a "Motion" admitted by the Speaker.
At the Conclusion of the investigation the Commit tee has to send the report to the Speaker (or the Chairman as the case may be) along with a copy of the original Mo tion.
If the finding goes against the Judge, section 6(2) of the Act directs that the Motion, the same original Motion, shall together with the report be taken up for consideration by the House where the Motion is pending.
The relevant part of section 6(2) mentions: "the Motion referred to in sub section (1) of section 3 shall together with the report of the Committee, be taken up for consideration by the House. in which it is pending".
Rule 16(4) states that the address and the Motion shall be put to vote together in each House of Parliament.
What the Act and the Rules contemplate is the original Motion to be taken up for consideration by the House, and if this Motion is held to have exhausted itself on admission by the Speaker, as has been urged on behalf of the petitioners, nothing remains on which the Act would operate.
The concept of the original Motion being pending in the House, to be taken up for debate and vote on the receipt of the report of the Committee, is the life and soul of the Act, and if that Motion disappears nothing remains behind to attract the Act.
This 93 idea runs through the entire Act and the Rules, and cannot be allowed to be replaced by a substitute.
The existence of a Motion pending in the House is a necessary condition for the application of the Act.
Bereft of the same, the Act does not survive.
It is, therefore, not permissible to read the Act consistent with the stand of the petitioners that the House is not seised of the Motion and does not have anything to do with the inquiry pending before the Committee, until the report is received.
If clauses (4) and (5) of Article 124 are construed as suggested on behalf of the petitioners, the Act will have to be struck down as ultra vires, or in any event inoperative and infructuous and on this ground alone the Writ Petitions are liable to be dismissed.
It has been contended that if the Motion is held to be pending in the House on its admission, the object of Article 121 shall be defeated.
The apprehension appears to be misconceived.
The mandate of the Constitution against discussion on the conduct of a Judge in the House is for everybody to respect, and it is the bounden duty of the Speaker to enforce it.
He has to ensure that Article 121 is obeyed in terms and spirit, and as a matter of fact there is no complaint of any misuse during the last more than 41 years.
The question, however, is whether it will not be feasible for the Speaker to maintain the discipline, if the Motion on admission becomes pending in the House.
Before 1968 Act was passed, the motion, like any other motion, was governed by the Lok Sabha Rules, and Rule 189 enabled the Speaker to notify it as a No Day Yet Named Motion without fixing a date, and to permit the matter to be discussed only at the appropriate stage.
After the Act, what was left within the discretion of the Speaker, has been replaced by mandatory statutory provision, directing that the motion shall remain pending in the House, to be taken up only on receipt of a finding of the Committee against the Judge.
The pendency of the motion in the House, therefore, cannot be a ground to violate Article 121.
Mr Sibal, however, claimed that the members of the House are entitled to express their opinion on the proposed endictment from the very initial stage and as a part of his argument relied upon the statement of Mr. Setalvad before the Joint Committee.
Mr. Shanti Bhushan challenged the views of Mr. Setalvad on the ground that they would foul with Article 121.
I am afraid, the statements of Mr. Setalvad, referred to above, have not been properly appeciated by either side.
The modified Bill, on the basis of which the 1968 Act was passed, had not been drafted by then and Mr. Setalvad was expressing his opinion on the earlier Bill, which substantially vested the power of removal of a Judge in the Executive, and kept the Parliament out of the picture until the receipt of a report on the 94 alleged misbehaviour or incapacity.
If that Bill had been passed, the effect would have been that the entire proceed ing beginning with the initiation of the inquiry and con cluding with the report would have remained completely outside the House, an interpretation which is being attempt ed by the present petitioners before us, on the present Act too.
The objection to the entrustment of the power to the Executive was mainly on the ground that the intention of the Article 124 to leave the removal of a Judge in the hands of the Parliament would be frustrated.
In answer to a query of the Chairman of the Committee, Mr. Setalvad said that as a result of the provisions of the Bill (then under considera tion) the Parliament would be completely kept out until a finding of another body was received by the House and this would militate against the constitutional scheme.
In this background when his attention was drawn to the bar of Arti cle 121 he replied that it was possible to prevent a prema ture discussion in the Parliament, by the Speaker exercising his authority with discretion.
He referred to the Lok Sabha Rules in this context and furher recommended for the Speaker to be vested with larger powers.
He was emphatic that the President should not be entrusted with the matter, even at the initial stage, and that it should be left in the hands of the Speaker to take appropriate steps.
The suggested substitution of the Speaker (and the Chairman) in place of the President was in accordance with the view that the matter is within the exclusive domain of the two Houses of the Parliament which could exercise its powers through the respective representatives Speaker and the Chairman.
About Mr. Setalvad 's evidence I would like to clarify the position that I am not treating his opinion as an authority, and I have taken into account the same as one step in the history of the present legislation starting from the original Bill of 1964.
The report of the JointCommittee (presented on 17th May, 1966) sets out the observations of the Committee with regard to the principal changes proposed in the Bill.
Para graph 17 of the Report dealing with clause (2) states that the expression "Special Tribunal" has been substituted by "Committee" and "Speaker" and "Chairman" have been brought in "with a view to ensuring that the Committee may not be subject to writ jurisdiction of the Supreme Court & the High Courts".
With respect to clause (3), the following observa tions of the Committee are relevant: "The Committee are of the view that to ensure and maintain the independence of the judici ary, the Executive should be excluded from every stage of the procedure for investigation of the alleged misbehaviour or incapacity of a Judge and that the initiation of any proceed ing against a Judge should be made in Parlia ment by a notice of a motion.
The Committee 95 also feel that no motion for presenting an address to the President praying for the removal of a Judge should be admitted unless the notice of such motion is signed in the case of a motion in the Lok Sabha, by not less than one hundred members of that House and in the case of a motion in Rajya Sabha, by not less than fifty members of that House.
Fur ther, the Committee are of the opinion that the Speaker or the Chairman or both, as the case may be, may after consulting such persons as they think fit and after considering such materials, as may be available, either admit or reject the motion and that if they admit the motion, then they should keep the motion pending and constitute a Committee consisting of three members, one each to be chosen from amongst the Chief Justice and other Judges of the Supreme Court, Chief Justice of the High Courts and distinguished Jurists, respective ly".
Paragraph 20 of the Report deals with clause (6) and the proposed changes, that were more consistent with the motion being pending in the House or Houses.
Ultimately, another Bill on the lines suggested by the aforesaid Joint Committee was drafted and adopted.
Mr. Setalvad 's opinion is relevant as an important step in this history of legislation and can be referred to as such.
The wider proposition put forward by Mr. Sibal that the House was seised of the matter so effectively as to entitle every member to demand a discussion in the House at any stage is, however, not fit to be accepted.
This will not only violate Article 121, but also offend the provisions of the 1968 Act.
It is not correct to assume that if the right of the individual member to insist on immediate discussion is denied, the consequence will be to deprive the Parliament of the control of the motion.
When the Speaker exercises authority either under the Lok Sabha Rules or under the.1968 Act, he acts on behalf of the House.
As soon as he ceases to be the Speaker, he is divested of all these powers.
When he acts the House acts.
It is another matter that he may con sult other persons before admitting the motion, and while so doing, he may consult the members of the House also, but without permitting a discussion in the House.
The consulta tion, which the Act permits, is private in nature, not amounting to a public discussion while the object of Article 121 is to prevent a public debate.
It may also be open to the Speaker to consult the House on a legal issue which can be answered without reference to the conduct of Judge in question, as for example, the issue (involved in the present case) whether on account of dissolution of the old House the Motion has lapsed and the Committee of Inquiry is defunct.
What is prohibited is not every matter 96 relating to the removal of a Judge; the bar is confined to a discussion with respect to the conduct of a Judge in the discharge of his duties.
28: Mr. Shanti Bhushan strenuously contended that such portion of the 1968 Act which direct or declare the initial motion admitted by the Speaker to remain pending in the House, should be interpreted as creating a legal fiction limited for the purpose of ensuring that the bar under Article 121 is not lifted prematurely.
I do not see any justification for placing this construction on the Act.
This issue could not arise with reference to the original Bill which was ultimately dropped, as under its scheme the matter could not have reached the Parliament before the report the Special Tribunal was laid before the Houses under the Presi dent 's direction.
The petitioners are trying to put an interpretation on the present Act that may lead to the same conclusion, that is, that the Parliament does not come in the picture until the receipt of the report from the Commit tee.
This is wholly inconsistent with the original Bill not Finding favour with the Parliament.
But apart from this consideration, let us assume that the petitioners are right, and the matter does not reach the Parliament at all before it is ready for consideration on the basis of the Inquiry Report.
It cannot be suggested that even at that stage a discussion on the conduct of a Judge is banned; and before this stage is reached there is no occasion for relying upon Article 121 to prevent a discussion.
The situation, there fore, does not require the aid of any legal fiction.
The consequence of accepting the argument of Mr. Shanti Bhushan will be to render the aforesaid provisions of the statute wholly superfluous.
Also, had it been a case of a legal fiction as suggested, it would attract the observations of Lord Asquith in East End Dwellings Co. Ltd And Finsbury Borough Council: , (followed in 'this country in numerous cases) to the effect that if you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevita bly have flowed from or accompanied it; and if the statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
The alternative sug gestion of Mr. Shanti Bhushan that the motion, on its admis sion, having served its purpose, is completely exhausted, and a new motion is to be moved again by a member on the receipt of the Report from the Committee, has also no merit, for if the motion completely exhausts itself and there.
fore does not remain in existence any further, no problem about the lifting of the bar under Article 121 arises for being solved with the help of a legal fiction.
An attempt was made by mr. Shanti Bhushan to derive some support 97 from that part of clause (4) of Article 124 which requires the voting in the two Houses to take place in the same session.
The provision appears to me to be absolutely irrel evant.
The clause does not require that the entire proceed ing with respect to the removal of a Judge commencing with the notice of motion has to be within the same session.
It refers only to the voting part.
A close reading of the entire Act indicates that the language therein, which com pletely demolishes the petitioners ' case, was consciously chosen to make the House seised of the matter, and conse quently it became necessary to include the provisions di recting the motion to remain pending for the purpose of preventing a premature discussion.
The Act has, thus, very successfully respected both Articles 124 and 121 in their true spirit, by neatly harmonising them.
Let us consider another argument of the petitioners that by reason of the expression "on the ground of proved misbehaviour or incapacity" occurring in clause (4) of Article 124 it should be held that until an adverse verdict of misbehaviour or incapacity by some other body is received by the House, the matter does not come within its purview.
The body in contemplation of clause (4) may be an authority, completely unassociated with either House of the Parliament or the Speaker or the Chairman, and the Parliament may not have any control over the same.
Such authority would be purely statutory, not amenable to the discipline of the Parliament, but subject to the Court 's jurisdiction.
Merely for the reason that a statute under clause (5) prescribes the procedure in this regard by entrusting the Speaker to take a decision at the initial stage, he could not cease to be a statutory authority.
In other words, he acts in his individual capacity under the power vested by the law and not in a representative capacity.
1 do not find this con struction of clauses (4) and (5) acceptable.
This would, in substance, deny the Parliament the power to remove a Judge exclusively vested in it by Constitution.
Let us ignore the present Act and consider another statute with provisions in express terms on the lines suggested by the petitioners, that is, entitling the statutory authority to act independ ently of the Parliament, the Speaker and the Chairman.
If that could be permissible it would lead to the Parliament being reduced to a helpless spectator, dependent on the statutory authority, to act on or to ignore a complaint.
This would be in complete violation of the intention of the Constitution to vest the power to remove a Judge exclusively in the Parliament.
It must, therefore, be held that the Parliament is in control of the matter from the very begin ning till the end, and it acted correctly in accepting the objections of the Joint Committee to the original Bill, aforementioned, and in passing the Act of 1968, iii the form we find it.
By the introduction of the Speaker and the requirement of a large number of members of either House to initiate the matter, the 98 House is brought in control of the proceeding through its representative the Speaker or the Chairman.
It has to be noted that "the ground of proved misbehaviour or incapacity" is necessary only for putting the matter to vote in the House under clause (4), and is not a condition precedent for initiating a proceeding and taking further steps in this regard.
Mr Sibal projected another extreme point of view by contending that a finding of the Committee in favour of the Judge cannot be held to be binding on the Parliament on account of the limited scope of a statute passed under clause (5).
There is no merit in this argument either.
Clause (4) authorises the Parliament to act on the ground of proved misbehaviour or incapacity and clause (5) permits it to pass a law to lay down the manner in which it may become possible to do so.
It is true that the Parliament can exer cise its power without formally framing a law.
The House in question could in the absence of a law, decide on the proce dure to be followed in a given case but it was perfectly open to it to pass an Act laying down a general code to be followed until the Act is repealed or amended.
It is a well established practice for a large body to entrust investiga tions to a smaller body for obvious practical reasons, and such an exercise cannot be characterised as indulging in abnegation of authority.
It could have asked a Parliamentary Committee to enquire into the allegations or employed any other machinery for the purpose.
The ratio in State of Uttar Pradesh vs Batuk Deo Pati Tripathi and Anr., , is attracted here.
In that case the Administrative Committee of the High Court, constituted under the Rules of the Court resolved that the District Judge should be retired compulsorily from the service, and the Registrar of the High Court communicated the decision to the State Government and thereafter circulated to all the Judges of the High Court for their information.
The State Government passed orders retiring the District Judge, whereupon he filed a writ petition in the High Court.
The matter was heard by a Full Bench and the majority of the Judges held that the writ petitioner could not have been compulsorily retired on the opinion recorded by the Administrative Committee, as the Full Court was not consulted.
The application was allowed and a writ was accordingly issued.
On appeal by the State Government this Court reversed the decision holding that Article 235 of the Constitution authorised the High Court to frame the rules for prescribing the manner in which the power vested in the High Court had to be exercised, and observed that though the control over the subordinate courts is vested constitutionally in the High Court by the Article, it did not follow that the High Court has no power to pre scribe the manner in which that control may, in practice, be exercised; and in fact, the very circumstance that the power of control, which comprehends matters of a wide ranging authority, vests in the entire body of Judges 99 makes it imperative that the rules are flamed so that the exercise of the control becomes feasible, convenient and effective.
The parliament is a far larger body than the High Court and the observations apply to it with greater force.
So long as the statute enables the House to maintain its control either directly or through the Speaker, the entrust ment of the investigation does not amount to abdication of power.
It is a case where the Parliament has taken a deci sion to respect the verdict of the Committee in favour of the Judge, consistently with clause (4) and no fault can be .found.
It has been stated on behalf of the respondents that the question whether the Motion against the respondent No. 3 has lapsed as a result of the dissolution of the old House is agitating the minds of the members of the Lok Sabha and the issue is under consideration of the new Speaker.
In support, he produced a copy of the proceeding of the House.
If the present Speaker holds that the Motion has lapsed, and the Committee does not have any duty to perform, the pro ceeding cannot be proceeded with any further.
In reply the learned counsel for the petitioners claimed that after the matter is entrusted to the Committee, neither he nor the Parliament at this stage can undo the admission of the Motion by the earlier Speaker, or withdraw the investiga tion.
If the petitioners are right, then what happens if a member of the Committee becomes unavailable by any reason whatsoever or another member renders himself unfit to be on the Committee, say by reason of his apparent and gross bias, against or in favour of the Judge concerned, coming to light after the formation of the Committee ? The answer is that the House which is in control of the proceeding is entitled to take all necessary and relevant steps in the matter, except discussing the conduct of the Judge until the stage is reached and the bar under Article 121 is lifted.
If on the other hand it is held that the Committee is an independ ent statutory body not subject to the control of the House directly or through the Speaker, as the petitioners suggest, the Act may be rendered unworkable.
Besides, this would impute to the Parliament to have done exactly what the Constituent Assembly refused to do by accepting Sir Alla di 's impassioned appeal, referred to above in para graph 19, not to lower the dignity of the Chief Justice of India by providing a machinery consisting of 5 or 4 Judges to sit in appeal over him.
It may be noted here that the Constitution has considered it fit to entrust the inquiry in the alleged misbehaviour of a member of a Public Service Commission, a constitutional functionary but lower in rank than the Supreme Court, to the Supreme Court without associ ating a Chief Justice of the High Court or any other person lower in rank.
If the Committee is held to be functioning under the supervision and control of the parliament, with a view to aid it for the purpose of a proceeding pending in the House, it will be the parliament which will be in con trol of the proceeding and not the Committee.
100 32.
Mr Jethmalani was fervent in his exhortation to construe the Constitution and the Act in a manner which will protect the independence of the judiciary from the politi cians, and this, according to him, is possible only if this Court comes to an affirmative conclusion on the question of justiciability.
There cannot be two opinions on the necessi ty of an independent and fearless judiciary in a democratic country like ours, but it does not lead to the further conclusion that the independence of judiciary will be under a threat, unless the matter of removal of Judges, even at the highest level, is not subjected to the ultimate control of Courts.
The available materials unmistakably show that great care was taken by the framers the Constitution to this aspect and the matter was examined from every possible angle, before adopting the scheme as indicated earlier.
So far as the district courts and subordinate courts are concerned, the control has been vested in the High Court, but when it came to the High Court and Supreme Court Judges, it was considered adequate for the maintenance of their independence to adopt and enact the Constitution as we find it.
I do got see any reason to doubt the wisdom of the Constituent Assembly in entrusting the matter exclusively in the hands of the Parliament and I do not have any ground for suspicion that the Members of Par liament or their representatives, the Speaker and the Chair man, shall not be acting in the rue spirit of the Constitu tional provisions.
Similarly, the task of enacting a law under clause (5) was taken up seriously by consid ering every relevant aspect, and the process took several years before the Act was passed.
do not propose to deal with this point any further beyond saying that the mandate of the Constitution is binding on all of us, and I would close by quoting the following words from Hamilton: "If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact stand ard of perfection, society would soon become a general scene of anarchy, and the world a desert.
Where is the standard of perfection to be found ? Who will undertake to unite the discordant opinions of a whole community, in the same judgment of it; and to prevail upon one conceited projector to renounce his infal lible criterion for the fallible criterion of his more conceited neighbour? To answer the purpose of the adversaries of the Constitu tion, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious".
It has not been suggested on behalf of the petition ers or by anybody else that it is open to the Court to examine the legality of a final decision taken by the Par liament under clause (4).
Even after a verdict against the Judge is returned by the Committee, the Parlia ment or for that matter any of the two Houses can refuse to vote in favour of the Motion for removal of a Judge, and the Court shall not have any jurisdiction to interfere in the matter.
Is it conceivable, in the circumstances, that at the intermediate stage of investigation the Court has got the power to intervene ? The answer is in the negative for more than one reason.
If the control of the House continues on the proceeding throughout, which can he exercised through the Speaker, it cannot be presumed that the Court has a parallel jurisdiction, which may result in issuance of contradictory directions.
Besides, the Court cannot he expected to pass orders in the nature of step in aid, where the final result is beyond its jurisdiction.
Any order passed or direction issued by this Court may result in merely an exercise in futility, and may cause a situation, embarassing both for the highest judicial and legislative authorities of the country.
The Constitution cannot he attributed with such an intention.
I, therefore, hold that the courts including the Supreme Court do not have any jurisdiction to pass any order in relation to a proceeding for removal of a Judge of the superior courts.
Reference was made by the learned counsel for the parties to the Constitutions of several other countries, but I do not consider it necessary to discuss them excepting the Australian Constitution as they do not appear to be helpful at all.
As has been mentioned earlier the language of Arti cle 124 (4) is similar to section 72(ii) of the Common wealth of Australia Constitution Act (1900), except with this difference that the Australian Constitution Act.does not specifically provide for any law to he made for regulat ing the procedure and investigation.
However, the constitu tional and the legal position in Austraila is not helpful to resolve the present dispute before us, as the Commonwealth of Australia Constitution Act (1900) has adopted rigid Separation of Powers between the Executive, Legislature and Judiciary (as has been observed by this Court on many occa sions including at page 415 in Smt.
Indira Gandhi vs Raj Narain, , relented to above in paragraph 9.
Reference has been made by P.H. Lane in his commentary on the Australian Constitution to the proceedings which were initiated for removal of Mr. Justice Murphy under section 72 (ii) of the Constitution Act.
On account of sharp difference amongst the members of the Select Committee of the Senate appointed to inquire into the matter and a further failure to resolve the situation by establishing a second Committee and in view of certain other facts an adhoc legislation was passed under the name of Parliamentary Commission of Inquiry Act, 1986.
Under this Act further steps were being taken when Mr. Justice Murphy moved the High Court of Austraila for an order of injunction challenging the validity of the Act and alleging that one of the members of the Commission constituted under the Act (a 102 retired Judge) was disqualified on account of bias.
The application was dismissed on merits without adverting to the question of justiciability.
This decision, to my mind, is of no help to the petitioners before us, mainly on account of the difference in the Constitutional scheme of the two countries with respect to the Separation of Powers.
The judicial powers there have been exclusively vested in the courts by section 71 of the Constitution Act of 1900.
Lane has at page 372 of his book opined that sec tion 72 (ii) may be non justiciable, since it seems to place the exercise under the section in Parliament itself.
He, however, further proceeds to say that the Parliament could seek the High Court 's help, for example, in the peripheral matter of the meaning of misbehaviour or incapacity in section 72(ii).
He has also referred to certain other provi sions of the Constitution Act, and analysed the roles of Parliament and Court with his comments.
I do not consider it necessary to proceed further beyond saying that Mr. Justice Murphy 's case does not provide any aid in deciding the issue in the cases before us.
Although our Constitution was made after examining the Constitutions of many other countries, it has adopted a pattern of its own.
The learned counsel also placed a large number of decisions; both Indian and foreign and since I have not found them relevant, I have refrained from discussing them.
None of the cases in which this Court has either interfered with the decision of the House or has refused to do so, related to a proceeding for removal of a Judge, and are clearly distinguishable in view of my opinion expressed above.
I am also not dealing with the other points urged by Mr. Sibal, as I agree with him on the main issue of justiciability.
I am avoiding to express any opinion on the controversy whether the Motion lapsed or not on the dissolution of the earlier House, as the issue is for the Lok Sabha to decide.
In view of the above findings this Court cannot pass any order whether permanent or temporary on the prayer that the respondent No. 3 should not be allowed to exercise his judicial powers.
In the result all the F writ petitions are dismissed.
The prayer for transfer of Writ Petition No. 1061 of 1991 in Transfer Petition No. 278 of 1991 is allowed and that Writ Petition is also dismissed.
There will be no order as to costs.
N.P.V. Petitions dis posed of.
| The appellant company was incorporated in the United Kingdom, with its registered office in London and its business in the United Kingdom consisted of stores and groceries, including tea which represented only about 10% of its business there.
Its operations in India were carried on by a branch with its head office in Calcutta, and the business there consisted mainly in the sale of " packeted " tea throughout India.
The Delhi office of its Indian branch controlled the salesmen and other employees employed in the Punjab, Delhi State, Rajasthan and Uttar Pradesh, but had no connexion with the export side of the business.
The Indian Branch had no subscribed capital nor any reserves, and the capital used in India was money advanced from the company 's fund in England.
The dispute between the respondents who were the employees of the Delhi office and the company related, inter alia, to (1) fixation of grades and scales of pay; (2) whether retrospective effect should be given to the new scales of, pay; and (3) bonus for the year 1951.
The respondents contended that the total global profits of the appellant company should form the basis for determining the claim to bonus on the ground that it was an integrated industry which had trading activities in various countries.
The Tribunal found that the Indian workmen did not in any way contribute to the profits which the appellant company derived from its ex India business, that the Indian branch maintained separate accounts which had been audited and accepted by the Income tax authorities as showing the profit and loss of the Indian branch of the business, and that though, at the relevant time, the appellant company was one legal entity and the capital of the Indian branch came from London, the Indian branch was treated as a separate entity for all practical purposes.
The Tribunal also found that for 195 I there was no available surplus for distribution as bonus to the employees in India.
In the matter of fixation of grades and scales of pay, the Tribunal found that the existing scale of wages of the Delhi employees was far below the standard of a living wage, and for fixing the wage level it took into consideration the company 's global capacity to pay and came to the conclusion that having regard to its global 151 resources the company was financially able to bear a slightly higher wage structure.
Accordingly, the Tribunal revised the grades by giving an increase of 20% to all workers.
As to the date from which the revised grades were to take effect, the Tribunal directed that they should have retrospective effect from January 1, 1954, instead of January 1, 1953, as claimed by the Union.
The appellant contended that the Tribunal erred in taking into consideration the global financial resources of the company in support of an increase in wages while holding that the Indian branch was a separate entity for the payment of bonus, that the financial resources of the Indian branch did not show any capacity to pay higher wages, and that, in any case, there was no reliable evidence to show that the existing wage structure required revision if it was compared to the wage structure in similar industries in the Delhi region.
A question was also raised as to whether the Industrial Tribunal, Delhi, had jurisdiction to make an award in respect of employees of the Delhi office who were employed outside the State of Delhi.
Held: (1) that on the finding that the Delhi office controlled all its employees in the matter of appointment, leave, transfer, supervision, etc., whether employed in Delhi State or outside it, the Industrial Tribunal, Delhi, had jurisdiction to adjudicate on the dispute between the appellant company and its workmen of the Delhi office, as the Delhi State Government was the appropriate Government within the meaning of section 2 of the , and under section 18 of the Act the award made by the Tribunal was binding on all persons employed in the Delhi office; (2) that in the circumstances in which the appellant com pany operated in India at the relevant time and on the finding that no part of the profits made in India was diverted to England and that the Indian business depended on its own trading results the global profits of the company could not be made the basis for awarding bonus to Indian workmen, and that the latter can claim bonus only if there was an available surplus of profits of the Indian business; Muir Mills Co. Ltd. vs Suti Mills Mazdoor Union, Kanpur, ; , Ganesh Flour Mills Co. Ltd vs Employees of Ganesh Flour Mills, A.I.R. 1958 S.C. 382, Burn and Co., Calcutta vs Their Employees, ; and Baroda Borough Municipality vs Its workmen; , , referred to.
(3) that in determining the question of a revision of the wage scale, the relevant considerations were : (1) whether the existing wage structure required revision by reason of its being below the standard of living wage, and (2) whether the industry could bear the additional burden of an increase in the wage scale on the basis of industry cum region by reason of its financial resources in India ; that judged by the considerations stated 152 above, it could not be said that the Tribunal erred in revising the wage structure on the basis of the evidence adduced before it ; and that the increase in the wages was not beyond the financial resources of the company as disclosed by its trading results in India.
There is a distinction between bonus and wage.
Bonus comes out of profits and is paid, if after meeting prior charges, there is an available surplus.
Wages primarily rest on contract and are determined on a long term basis and are not necessarily dependent on profits made in a particular year.
Crown Aluminium Works vs Their Workmen, ; and Express Newspapers (Private) Ltd. vs The Union of India, , relied on.
(4) that the new scales of pay should be brought into effect from November 1, 1955, instead of January 1, 1954, as directed by the Tribunal.
|
vil Appeal No. 4395 of 1986.
From the Judgment and Order dated 10.8.1984 of the Punjab and Haryana High Court in L.P.A. No. 748 of 1983.
F.S. Nariman, S.S. Shroff and Mrs. P.S. Shroff for the Appellant.
Respondent in person.
R.K. Garg, and A. Saran for the Intervener.
The Judgment of the Court was delivered by DUTT, J.
This appeal by special leave has been preferred by the State of Haryana against the judgment of the Division Bench of the High Court of Punjab & Haryana whereby the Division Bench has set aside the judgment of a learned Single Judge of the High Court dismissing the writ petition of the respondent Shri P.C. Wadhwa, a member of the Indian Police Service.
who was the Inspector General of Police, Haryana, from June 30, 1979 to July 25, 1980.
It appears that certain adverse remarks were made by the Home Secretary to the Govern ment of Haryana against Shri Wadhwa, the Inspector General of Police for the said period.
The adverse remarks were duly accepted by the competent authority under the All India Services (Confidential Rolls) Rules, 1970, hereinafter referred to as 'the Rules '.
After such acceptance, the adverse remarks were communicated to Shri Wadhwa by the Home Secre tary by his letter dated May 4, 1982, about two years three months after the close of the relevant period of March 31, 1980.
The re spondent did not make any representation against the adverse remarks to the reviewing authority under the Rules.
Instead, he chose to file a writ petition before the Punjab & Haryana High Court challenging the authority of the Home Secretary to write a confidential report assessing the performances, character, conduct and qualities of the respondent as the Inspector General of Police and prayed for the quashing of such report or adverse remarks.
1034 A learned Single Judge of the High Court took the view that as the Home Secretary was specifically empowered by the State Government as the reporting authority under Rule 2(e) of the Rules, he had the authority to write the report or to make adverse remarks against the performances of the Inspector General of Police, Haryana.
In that view of the matter, the learned Single Judge dismissed the writ petition.
Being aggrieved by the judgment of the learned Single Judge, the respondent filed an appeal against the same to the Division Bench of the High Court and, as stated al ready, the Division Bench set aside the judg ment of the learned Single Judge and allowed the writ petition holding inter alia, that the Home Secretary had no authority to submit any report against the performance of the respond ent for the aforesaid period during which he was the Inspector General of Police, Haryana.
Hence this appeal by special leave by the State of Haryana.
The only point that is involved in this appeal is whether the State Government was justified in specifically empowering the Home Secretary as the reporting authority for the purpose of writing a confidential report in respect of the Inspector General of Police.
Section 3 of the empowers the Central Government to make rules for the regulation of recruitment, and the conditions of services of persons appointed to an All India Service.
By virtue of section 3, the Central Government framed the Rules.
Under Rule 1(3), the Rules shall apply to the writ ing and the maintenance of the confidential reports on the members of the Service.
Clauses (e), (f) and (a) of Rule 2 of the Rules are as follows: "2.
Definitions In these rules, unless the context otherwise requires: (e) 'reporting authority ' means the authority who was, during the period for which the confidential report is written, immediate ly superior to the member of the Service and such other authority as may be specifically empowered in this behalf by the Government; (f) 'reviewing authority ' means the authority who was, 1035 during the period for which the confidential report is written, immediately superior to the reporting authority and such other authority as may be specifically empowered in this behalf by the Government; (a) 'accepting authority ' means the authority who was, during the period for which the confidential report is written, immediate ly superior to the reviewing authority and such other authority as may be specifically empowered in this behalf by the Government;" In this connection, it may be pointed out that it is not disputed that the conjunction 'and ' occurring in clauses (e), (f) and (a) should be read as 'or '.
Under clause (e), the 'reporting authority ' may be either immediately superior to the member of the Service or such other authority as may be specifically empowered in this behalf by the Government.
The expression 'immediately superior ' obviously indicates that the reporting authority should be the immediate superi or officer in the same Service to which the member of the Service belongs.
The position is the same as in the cases of 'reviewing authority ' and 'accepting authority '.
So, under the first part of clause (e), the reporting authority of the respondent could be a person who is immediately superior to him in the Police Service.
At this stage, it is necessary to refer to sections 3 and 4 of the .
Sections 3 and 4 are as follows: "Section 3.
The superintendence of the police throughout a general police district shall vest in and shall be exercised by the State Government to which such district is subordi nate; and except as authorized under the provisions of this Act, no person, officer, or Court shall be empowered by the State Govern ment to supersede, or control any police func tionary.".
"Section 4.
The administration of the police throughout a general police district shall be vested in an officer to be styled the Inspec tor General of Police, and in such Deputy Inspectors General and Assistant Inspectors General as to the State Government shall seem fit.
The administration of the Police throughout the local jurisdiction of the Magistrate of the district shall, under the general control and direction of such Magis trate, be vested 1036 in a District Superintendent and such Assist ant District Superintendents as the State Government shall consider necessary," It is clear from sections 3 and 4 that the administra tion of the police throughout a general police district shall be vested in the Inspector General of Police.
The position and status of the Inspector General of Police have been described in Rule 1.2 of the Punjab Police Rules, 1934, Volume I. Rule 1.2 provides as follows: "Rule 1.2.
The responsibility for the command of the police force, its recruitment, disci pline, internal economy and administration throughout the general police district vests in the Inspector General of Police.
He is head of the Police Department, and is responsible for its direction and control and for advising the Provincial Government in all matters connected with It.
In the discharge of his duties as Inspector General arid in the execu tion of order of Government he is bound to act in conformity with the system and regulations regarding the functions, discipline and admin istration of the Force contained, in the (V of 1861) and in these rules.
Orders of the Provincial Government affecting the Police force, in whole or in part, will be issued through him.
Inspector General is assisted in the control and administration of the Police force by such number of Deputy Inspectors General and Assistant Inspectors General as the Pro vincial (Government may from time to time appoint.
" Under Rule 1.2, the Inspector General of Police is the head of the Police Department and is responsible for its direction and control and for advising the Provincial Gov ernment in all matters connected with it.
Thus, the Inspec tor General of Police being the head of the Police Depart ment, there is no immediately superior officer to him in the Police Service.
Consequently, the first part of clause (e) will not have any application to the respondent.
Now the question is whether the State Government can specifically empower any authority to be the reporting authority of the Inspector General of Police under the second part of clause (e).
Apart from any legal provision, it is just and proper that a reporting authority 1037 must be a person to whom the member of the Service is an swerable for his performances.
In other words, the reporting authority should be a person higher in rank than the member of the Service.
Indeed, that is apparent from the first part of clause (e).
It is true that under the second part of clause (e), there is no indication as to the status and position of the authority who may be specifically empowered by the Government as the reporting authority, but from the point of view of propriety and reasonableness and having regard to the intention behind the rule which is manifest, such an authority must be one superior in rank to the member of the Service concerned.
If that be not so, there will be an apparent conflict between the first part and second part of clause (e).
We are, therefore of the view that the State Government can specifically empower only such authority as the reporting authority as is superior in rank to the In spector General of Police.
It is, however, submitted by Mr. Nariman, learned Coun sel appearing on behalf of the State of Haryana, that the Home Secretary is the head of the Police Department under the Business of the Haryana Government (Allocation) Rules, 1974, hereinafter referred to as the Business Rules.
The Business Rules have been framed by the Haryana Government in exercise of the power conferred by clauses (2) and (3) of Article 166 of the Constitution of India.
Rules 1 to 4 of the Business Rules are as follows: "1.
These rules may be called the Busi ness of the Haryana Government (Allocation) Rules, 1974.
The Business of the Government of the State of Haryana shall be transacted in the Departments specified in the Schedule annexed to these rules and shall be classified and distributed among those Departments as laid down therein.
The Governor shall, on the advice of the Chief Minister, allot among the Ministers the business of the Government by assigning one or more Departments to the Charge of a Minister.
Provided that nothing in this rule shall prevent the assigning of one Department to the charge of more than one Minister.
Each Department of the Secretariat shall consist of the 1038 Secretary to the Government, who shall be the official head of that Department, and of such other officers and servants subordinate to him as the State Government may determine: Provided that: (a) more than one Department may be placed in charge of the same Secretary; and (b) the work of a Department may be divided between two or more Secretaries.
" Rule 2 provides inter alia that the Business of the Government of the State of Haryana shall be transacted in the Departments specified in the Schedule.
Under rule 4 each Department of the Secretariat shall consist of the Secretary to the Government, who shall be official head of that De partment.
In the Schedule to the Business Rules, Item No. 17 under the Home Department inter alia relates to "Police, Railway Police and P.A.P." Much reliance has been placed by the learned Counsel for the State of Haryana on Rule 4 read with Item No. 17.
It is submitted by him that the Home Secretary being the head of the Home Department and as the Police Department has been placed under the Home Department, the Home Secretary must necessarily be the head of the Police Department.
We are unable to accept this contention.
The Business Rules have been framed under clauses (2) and (3) of Article 166 of the Constitution for the more conven ient transaction of the business of the Government of Har yana and for the allocation of business among the Ministers.
Under Rule 4, the Secretary of each Department of the Secre tariat is the head of that Department.
Thus, the Secretary of the Home Department is the head of the Home Department being a Department of the Secretariat, but merely because he has to conduct the business, on behalf of the Government, of the Police Department, he does not thereby become the head of the Police Department.
Item No. 37 under the General Administration Department in the Schedule relates to Judges of the High Court and officers of the Superior Judicial Service.
The Chief Secretary of the Government of Haryana is the head of the General Administration Department by virtue of Rule 4 of the Business Rules.
But that does not mean that the Chief Secretary is also the head of the Administration relating to the Judges of the High Court and officers of the Superior Judicial Service.
Similarly, Item No. 21 of the General Administration Department relates to Council of Ministers and its 1039 Committees.
Surely, the Chief Secretary has no authority whatsoever on the Council of Ministers and its Committees.
There is, therefore, no substance in the contention made on behalf of the appellant that as Police, Railway Police and P.A.P. have been placed under the Home Department, the Secretary of the Home Department is the head of the Police Department by virtue of Rule 4 of the Business Rules.
The Rules of Business that have been framed under Article 166 cannot override the provisions of the Act or any statutory rules.
Indeed, the Business Rules also do not attempt to override Rule 1.2 of the Punjab Police Rules, for it cannot.
There is much substance in the contention made by the re spondent appearing in person and Mr. Garg, learned Counsel appearing on behalf of the intervener, the IPS Officers ' Association, that the Business Rules framed under Article 166 cannot be relied upon for the purpose of interpretating the provision of clause (e) of Rule 2 of the Rules.
In view of sections 3 and 4 of the read with Rule 1.2 of the Punjab Police Rules, the Inspector General of Police, Haryana, is the head of the Police Department.
The immediate authority superior to the Inspector General of Police is the Minister in Charge of the Police Department.
The only authority who could be specifically empowered as the reporting authority in regard to the Inspector General of Police under clause (e) of Rule 2 of the ' Rules is the Minister in Charge and the Chief Minister, being superior to the Minister in Charge, may be the reviewing authority under clause (f) of Rule 2.
In acting as the reporting authority the Minister in Charge may be assisted by the Home Secre tary, but the confidential report relating to the perform ance of the Inspector General of Police has to be written by the Minister in Charge.
The Minister in Charge of the Police Department is supposed to be aware of the performance of the Inspector General of Police.
As the Chief Minister is the reviewing authority, he will also act as the accepting authority on the basis of the principle as laid down under Rule 6B of the Rules providing that where the accepting authority writes or reviews the confidential report of any member of the Service, it shall not be further necessary to review or accept any such report.
In other words, the Chief Minister will act both as the reviewing authority and the accepting authority.
In this connection, we may notice the statements made in the writ petition filed by the respondent in the High court of Punjab & Haryana.
It has been stated in paragraph 14 that reports of the work and conduct of the various Secretaries to the Government are written and recorded by the Minister in Charge of the Departments concerned 1040 and not even by the Chief Secretary so that the Minister in Charge of the Departments concerned are the 'immediate superior ' authorities to the Secretaries concerned within the meaning of Rule 2(e) of the Rules.
Further, it has been stated that before independence the report on the work and conduct of the Inspector General of Police, Punjab, was being recorded by the Minister in Charge of the Department and such a position continued even after the independence till 1974 when the Haryana State Government passed the order dated May 3, 1974 under clause (e) of Rule 2 of the Rules, inter alia, specifically empowering the Home Secretary as the reporting authority for writing out the confidential reports in regard to the Inspector General of Police, Har yana.
The statements made in paragraph 14 have not been denied by the State of Haryana in its counter affidavit filed in the High Court.
The Division Bench of the High Court was, therefore, perfectly justified in quashing the confidential report written by the then Home Secretary on the work and conduct of the respondent Shri Wadhwa.
Before we part with this appeal, we may dispose of another contention of the respondent about the delay in communicating to him the impugned adverse remarks.
Under Rule 5 of the Rules, a confidential report assessing the performances, character, conduct and qualities of every member of the service shall be written for each financial year, or calendar year, as may be specified by the Govern ment, ordinarily within two months of the close of the said year.
Rule 6 provides that the confidential report shall be reviewed by the reviewing authority ordinarily within one month of its being written.
Under Rule 6A, the confidential report, after review, shall be accepted with such modifica tions as may be considered necessary, and countersigned by the accepting authority, ordinarily within one month of its review.
Thus, the whole process from the writing of the confidential report to the acceptance thereof has to be completed ordinarily within a maximum period of four months.
Further, under Rule 7 the adverse remarks, if any, in a confidential report shall be communicated to the officer concerned within three months of the receipt of the confi dential report.
Thus, a total period of seven months has been laid down as the maximum period within which adverse remarks, if any, has to be communicated to the officer concerned.
It has been already noticed that the adverse remarks were sent to the respondent after two years three months, that is, after twenty seven months of the close of the year.
It is submitted by the respondent that in view of the delayed communication.
the adverse remarks lost all importance and should be struk down on that ground.
1041 The whole object of the making and communication of adverse remarks is to give to the officer concerned an opportunity to improve his performance, conduct or charac ter, as the case may.
The adverse remarks should not be understood in terms of punishment, but really it should be taken as an advice to the officer concerned, so that he can act in accordance with the advice and improve his service career.
The whole object of the making of adverse remarks would be lost if they are communicated to the officer con cerned after an inordinate delay.
In the instant case, it was communicated to the respondent after twenty seven months.
It is true that the provisions of Rules 5, 6, 6A and 7 are directory and not mandatory, but that does not mean that the directory provisions need not be complied with even substantially.
Such provisions may not be complied with strictly, and substantial compliance will be sufficient.
But, where compliance after an inordinate delay would be against the spirit and object of the directory provision, such compliance would not be substantial compliance.
In the instant case, while the provisions of Rules 5, 6, 6A and 7 require that everything including the communication of the adverse remarks should be completed within a period of seven months, this period cannot be stretched to twenty seven months, simply because these Rules are directory, without serving any purpose consistent with the spirit and objec tives of these Rules.
We need not, however, dilate upon the question any more and consider whether on the ground of inordinate and unreasonable delay, the adverse remarks against the respondent should be struck down or not, and suffice it to say that we do not approve of the inordinate delay made in communicating the adverse remarks to the respondent.
For the reasons aforesaid, this appeal is dismissed.
There will, however, be no order as to costs.
N.P.V. Appeal dis missed.
| The defendant had an overdraft account with a particular branch of the plaintiff bank in the city.
A suit was insti tuted against him by that branch in 1952 for recovery of certain sums with interest.
He died on 6th November 1960.
The widow informed another branch of the bank of the death of her husband on 20th December, 1960.
The applications for impleading the legal representa tives of the defendant and for setting aside abatement were made in 1968, about 8 years after the death of the defend ant.
The delay in making these applications was sought to be explained with the plea that the concerned branch of the bank had no knowledge of the death of the defendant till it was informed by the other branch.
The High Court rejected the applications on the ground that no sufficient cause was shown for setting aside abate ment.
It held that an intimation of the death of the defend ant to the bank in the other branch could not be treated as no intimation to the branch which was the plaintiff in the suit.
Allowing the appeal by special leave, the Court, HELD: The High Court was in error in rejecting the application to set aside abatement and to condone delay.
[1095C] All branches of a bank could not be imputed with con structive knowledge of the death of a customer simply be cause one of the branches had been informed of it, for notice to one branch of a bank is no notice to the other branches.
[1092H; 1094H] 1091 In the instant case, it is not stated or proved that the branch which had filed the suit had information earlier about the death of the defendant.
It is evident from the record that even on 3rd June, 1968 the counsel for the defendant did not know about the death of the defendant.
The fact that a particular branch of the plaintiff bank had knowledge of the death was not sufficient to impute the concerned branch with constructive notice.
[1093A; 1094A, H; 1095A] (1918) The Times Law Reports, Vol.
XXXV, p. 142 referred to.
The provisions of 0. 22, R. 10 A of the Civil Procedure Code requiring a pleader appearing for a party to the suit to inform the court when he comes to know of the death of that party, whereupon the court is enjoined to give notice of such death to the other party, casts a duty only on the pleader and is not absolutely mandatory.
[1095B]
|
N: Civil Appeal Nos.
1684 85 of 1988.
From the Judgment and order dated 27.8.1987 of the Bombay High Court in First Appeal No. 48 and 74 of 1986 K.J. John and Sanjay Grover for the Appellant.
S.K. Mehta, M.K. Dua, S.M. Sarin, Aman Vachher, R.J. Goulay, Mrs. S.C. Dhanda and H.K. Puri for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The short question involved in this case is whether an insurer who has issued a policy insuring any person specified in the policy against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of a motor vehicle in a public place, is liable to pay compensation to such third party or to his or her legal representatives as the case may be when the liability arises when the motor vehicle is in the custody of a repairer.
One Sayed Hussain was a partner of a firm by name M/s. International Ship Repairers carrying on business at Vasco da Gama, Goa which was the owner of an Ambassador car.
He entrusted the said car 173 to Guru, proprietor of M/s. Auto Electrical Works on 26th February, .1983 with instructions to carry out electrical repairs to the car and handed over the keys of the car to the repairer for that purpose.
The car had been insured by the owner with M/s. Oriental Insurance Co. Ltd. as required by the provisions of the (hereinafter referred to as 'the Act ').
On the evening of February 26, 1983 Filomena F. Lobo, respondent No. 1 herein, aged 27 years was returning home along with her friend and was walking on the left side of the road.
She noticed a car parked near Damodar Mandap and proceeded further only to be knocked down by the very car which had reversed and dashed against her back.
The front tyre of the car passed over her abdomen and she had to be treated at Dr. Vernekar 's hospital and thereafter at Salgaoncar 's Medical Research Centre.
After being discharged from the hospital where she spent about 20 days she was advised further treatment at Jaslok Hospital, Bombay and she was undergoing treatment even when she instituted a Claim petition before the Motor Accidents Claims Tribunal, South Goa at Margao impleading the firm of which Sayed Hussain was a partner, Guru, the proprietor of M/s. Auto Electrical Works, Momad Donttach, the employee of the repairer, who was repairing the car at the time of the accident and the insurer M/s.
Oriental Insurance Co. Ltd. as respondents.
She filed the Claim Petition under section 110 A of the Act claiming a compensation of Rs.1,00,000 for injuries sustained by her on account of the motor vehicle accident referred to above.
The respondents contested the petition.
The owner of the car, that is the insured and M/s. Oriental Insurance Co. Ltd. the insurer pleaded that the car had been entrusted to the repairer to do electrical repairs job as an independent contractor and that Momad Donttach attached to the garage of the repairer had taken away the car for driving without holding a valid driving licence and without the consent of the owner of the motor vehicle owner.
Hence neither the insurer that is the insurance company, nor the insured, that is, the owner of the vehicle, was liable to pay any compensation.
Momad Donttach the employee of the repairer pleaded that he did not drive the vehicle involved in the accident at any time, that the vehicle had been entrusted to carry out repairs to Guru, the repairer, that he being a mechanic was carrying out the repairs by sitting on the front seat, i.e., the seat other than that of the driver, that suddenly the vehicle got into motion and started going in the reverse direction and that before he could take the driver 's seat and apply the brakes the vehicle got into the ditch and stopped.
He further contended that the applicant was guilty of contributory negligence in as 174 much as she in exercise of due diligence ought not to have walked A through the very little space between the vehicle and the wall.
He, however, did not deny that she suffered injuries on account of one of the wheels of the vehicle running over her body.
Guru, the repairer pleaded that Momad Donttach was not his employee and he had never engaged him for any work and that it was not true that he was driving the vehicle when the said vehicle was allegedly given for electrical repairs.
On the above pleadings the Tribunal framed among others the following issues:(i) Whether the applicant proved that the accident which caused injuries to the claimant on 26.2.83 at Vasco, was due to the rash and negligent driving on the part of the mechanic,; (ii) whether the applicant proved that the amount of compensation claimed was due.
reasonable and adequate; and (iii) whether the owner of the vehicle and the insurer proved that the mechanic had driven the car without holding a valid licence and without the consent of the owner The Tribunal on a consideration of the oral and documentary evidence placed before it found that the claimant had suffered injuries on 26.2.1983 on account of the rash and negligent handling of the motor vehicle by Momad Donttach; that the claimant was not guilty of any contributory negligence; that she was entitled to a compensation of Rs.90,000 for the injuries suffered by her; that Momad Donttach had a valid driving licence; that the car had been entrusted by the owner to Guru, the repairer for carrying out repairs; Momad Donttach was an employee of Guru; that the accident had taken place when the repairs were being effected to the car; and that the insurer and all other respondents were liable to pay the compensation of Rs.90,000 jointly and severally with interest thereon at six per cent per annum from the date of the claim till its complete satisfaction The Tribunal passed its award accordingly Aggrieved by the decision of the Tribunal the insurer M/s Oriental Insurance Co. Ltd and Guru to whom the car had been entrusted for carrying out the repairs filed appeals before the High Court of Bombay Panaji Bench.
The High Court allowed the appeal filed by the insurer M/s. Oriental Insurance Co. Ltd. but however held that under section 92A of the Act the insurer was liable to the extent of Rs. 7,500 only.
The appeal filed by Guru was dismissed holding that he and his mechanic Momad Donttach alone were jointly and severally liable to pay the compensation.
The result of the judgment of the High Court was that the entire compensation minus Rs.7,500 which the insurer was asked to pay under section 92A of the Act had to be paid by Guru the repairer of the car and his mechanic Momad Donttach.
Aggrieved by the decision of the High Court Guru has filed the above appeals by special leave.
175 There is no dispute that the insurer had issued a policy in respect of the car in question as provided in the Act; that the claimant had suffered injury on account of the negligence of the employee of the repairer, the appellant herein; and that the car had been entrusted by the owner to the repairer to carry out the repairs.
The only question of law which arises for consideration in this case is whether the insurer is liable to pay compensation to the claimant.
Under the Law of Toris the owner of a motor vehicle is no doubt not liable to pay compensation to any third party who suffers any injury on account of the negligence of the employee of an independent contractor, who has taken the vehicle from the owner for his own (independent contractor 's) use.
The question involved in this case has, however, to be resolved in the light of the provisions of the Act.
The material part of section 94(1) of the Act reads thus: "94.
Necessity for insurance against third party risk (1) No person shall use except as a passenger or cause or allow any other person to use a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this Chapter .
" The above provision requires every person, who uses a motor vehicle in a public place, except as a passenger, to take out a policy of insurance complying with the requirements of Chapter VIII of the Act.
It also requires a person, who causes or allows any other person, to use his motor vehicle in a public place to take out policy of insurance complying with the requirements of Chapter VIII of the Act unless there is in force a policy of insurance in relation to the use of the vehicle by that other person, as required by Chapter VIII of the Act.
Section 95 of the Act contains the requirements of such policies and limits of liability.
The relevant portion of section 95 of the Act reads thus: "95.
Requirements of policies and limits of liability (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which (a) is issued by a person who is an authorised insurer or by a cooperative society allowed under section 108 to transact the business of an insurer, and 176 (b) insures the person or classes of persons specified in the policy to the extent specified in sub section (2) (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place The portion of section 95 of the Act, extracted above, requires every person, who is the owner of a motor vehicle to take out a policy against any liability which may be incurred by him in respect of the death of or injury to any person or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place, from an authorised insurer or a cooperative society allowed under section 108 of the Act to transact the business of an insurer.
Under section 95(2)(c) of the Act in the case of motor vehicles other than those referred to in clauses (a) or (b) of section 95(2) the policy of insurance should cover the amount of liability incurred.
Under section 125 of the Act whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of section 94 of the Act shall be punishable with imprisonment which may extend to three months, or with fine which may extend to one thousand rupees, or with both.
Thus if a policy is taken in respect of a motor vehicle from an insurer in compliance with the requirements of Chapter VIII of the Act, the insurer is under an obligation to pay the compensation payable to a third party on account of any injury to his/her person or property or payable to the legal representatives of the third party in case of death of the third party caused by or arising out of the use of the vehicle at a public place.
The liability to pay compensation in respect of death of or injury caused to the person or property of a third party undoubtedly arises when such injury is caused when the insured is using the vehicle in a public place.
It also arises when the insurer has caused or allowed any other person (including an independent contractor) to use his vehicle in a public place and the death of or injury to the person or property of a third party is caused on account of the use of the said vehicle during such period, unless such other person has himself taken out a policy of insurance to cover the liability arising out of such an accident.
In the instant case neither Guru Govekar, the repairer, nor his mechanic Momad Donttach had taken a policy of insurance covering the liability to pay compensation payable to a third party, when a motor vehicle taken for repair from its owner has caused the death or 177 injury to any third party giving rise to the liability to pay compensation.
When the owner of a motor vehicle entrusts his vehicle to a repairer to carry out repairs he is in fact allowing the repairer to use his vehicle in that connection.
It is also implicit in the said transaction that unless there is any cantract to the contrary the owner of the vehicle also causes or allows any servant of the repairer who is engaged in the work of repairs to use the motor vehicle for the purpose of or in connection with the work of repairs and when such work of repair is being carried out in a public place if on account of the negligence of either the repairer or his employee, who is engaged in connection with the work of repair, a third party dies or suffers any injury either to his person or property, the insurer becomes liable to pay the compensation under the provisions of the Act.
In this context we may refer to the provisions of section 35(1) of the Road Traffic Act, 1930 which was in force in England, which at the relevant time read as follows: "35(1).
Subject to the provisions of this Part of this Act, it shall not be lawful for any person to use, or to cause or permit any other person to use, a motor vehicle on a road unless there is in force in relation to the user of the vehicle by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act.
" The above provision came up for consideration before the English Court of Appeal in Monk vs Warbey and others, In that case the plaintiff claimed damages for personal injuries sustained by him as the result of a collision between a motor coach driven by him and motor car belonging to the defendant, Warbey.
The motor car had been lent by Warbey to the defendant Knowles on whose behalf it was being driven at the material time by the defendant May, and, as the plaintiff alleged, being driven negligently.
Warbey, the owner of the car, was insured against third party risks, but neither Knowles nor May was insured against those risks.
The plaintiff alleged that the defendant Warbey by permitting the car to be used by Knowles and May, when no policy of insurance was in force in relation to such user, committed a breach of the duty imposed by section 35 of the Road Traffic Act, 1930.
The plaintiff further alleged that neither Knowles nor May was possessed of any means with which to pay any sum in respect of the damage sustained by the plaintiff.
The defendant Warbey pleaded in the course of his defence (i) that the action against him was based upon the alleged breach of a statutory duty and it was 178 not such a breach as gave a cause of action to an injured member of the public; (ii) that in any event the damage was too remote in law; and (iii) that the action against the defendant Warbey was premature in that he could not be joined with Knowles and May until the rights, if any, against them had been exhausted The trial Court rejected the defence of Warbey and made a decree against him for 70.
Warbey appealed to the Court of Appeal.
Greer.
L.J in the course of his judgment explained the object of enacting section 35 of the Road Traffic Act, 1930 and the basis of the liability of the owner of the vehicle at pages 80 81 thus: "Consequently the Road Traffic Act, 1930, was passed for the very purpose of making provision for third parties who suffered injury by the negligent driving of motor vehicles by uninsured persons to whom the insured owner had lent such vehicles How could Parliament make provision for their protection from such risks if it did not enable an injured third person to recover for a breach of section 35? That section which is in Part II of the Act headed 'Provision against third party risks arising out of the use of motor vehicles ', would indeed be no protection to a person injured by the negligence of an uninsured person to whom a car had been lent by the insured owner.
if no civil remedy were available for a breach of the section The Act requires every person who runs a car to have an insurance on the use of the car, and to provide himself with a certificate stating the terms of the insurance.
Section 35, sub section 1 says that 'subject to the provisions of this Part of this Act, it shall not be lawful for any person to use, or to cause or permit any other person to use, a motor vehicle on a road unless there is in force in relation to the user of the vehicle by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Part of this Act. ' There is no dispute that the appellant committed a breach of the section, but it is argued that taking the Act as a whole it is clear that it was not intended to confer a right upon an injured third person to claim damages for such a breach.
It seems to me that the situation is exactly within the language of A.L. Smith L.J in Groves vs Lord Wimborne, where he said at page 406: ' in question, ' the Factory & Workshop Act, 1878 'which followed numerous other Acts in pari materia, is not 179 in the nature of a private legislative bargain between employers and workmen, as the learned judge seemed to think, but is a public Act passed in favour of the workers in factories and workshops to compel their employers to do certain things for their protection and benefit. ' The Lord Justice then said at page 407: 'Could it be doubted that, if section 5 stood alone, and no fine were provided by the Act for contravention of its provisions, a person injured by a breach of the absolute and unqualified duty imposed by that section would have a cause of action in respect of that breach? Clearly it could not be doubted.
That being so, unless it appears from the whole 'purview ' of the Act, to use the language of Lord Cairns in the case of Atkinson vs Newcastle Waterworks Co., , that it was the intention of the Legislature that the only remedy for breach of the statutory duty should be by proceeding for the fine imposed by section 82, it follows that, upon proof of a breach of that duty by the employer and injury thereby occasioned to the workman, a cause of action is established. ' The result of the above construction may be stated as follows: prima facie a person who has been injured by the breach of a statute has a right to recover damages from the person committing it unless it can be established by considering the whole of the Act that no such right was intended to be given.
So far from that being shown in this case, the contrary is established.
To prosecute for a penalty is no sufficient protection and is a poor consolation to the injured person though it affords a reason why persons should not commit a breach of the statute.
" Maugham, L.J. and Roche, L.J. agreed with the above view expressed by Greer, L.J.
The above decision was later on approved by the House of Lords in McLeod (or Houston) vs Buchanan, Summarising the effect of the decision in Monk vs Warbey (supra) in Shawcross on Motor Insurance, Second Edition at page 6 it is observed thus: "(1) The owner who delivers his car to a repairer will be liable to a third party who sustains personal injuries and is unable to recover from the repairer because the repairer has no insurance (g).
" We agree with the view expressed in Monk vs Warbey (supra).
In India the opinion appears to be divided on the liability of the insurer of a motor vehicle when the accident giving rise to the claim takes place 180 when the motor vehicle is in the custody of a repairer.
In Vijayanagaram Narasimha Rao and Others vs Chanashyam Das Tapadia and others, , Ramaswamy, J. of the High Court of Andhra Pradesh held that once the owner had entrusted the motor vehicle to the licensed mechanic to effect repairs, testing being integral part of effecting repairs and the accident had taken place during the course of testing the vehicle, the necessary conclusion was that the mechanic acted within his limits of authority and in the course of the employment for and on behalf of the owner.
Therefore, the owner should be vicariously liable for the acts of the mechanic.
Accordingly, he held that both the owner and the insurance company were also jointly and severally liable for the payment of the compensation to the third party, who had suffered the injury by virtue of the provisions of the Act.
The decision of the High Court of Madhya Pradesh in Shantibai and others vs The Principal, Govindram Sakseria Technological Institute, Indore and others, is also to the same effect.
G.L. Oza, J., as he then was, in the course of the said decision rejected the contention of the insurance company based on the exemption clause which exempted the insurance company from liability arising out of an accident during the period when the motor vehicle was used 'for hire or used for organised racing, pace making, reliability speed testing ', which was also one of the contentions urged before us in the present case although the said contention could not be urged in the circumstances of this case.
We do not agree with the decision in D. Rajapathi vs University of Madurai and others, in which it has been held that the doctrine of vicarious liability could not be extended to a case where the accident had taken place on account of the negligence of the driver employed by an independent contractor even when the claim is made not under the Law of Torts but under the provisions of the Act.
While it may be true, as we have observed earlier, that under the Law of Torts, the owner may not be liable on the principle of vicarious liability, the insurer would be liable to pay the compensation by virtue of the provisions of section 94 and section 95 of the Act, referred to above We may now refer to the decision of this Court in the New Asiatic Insurance Co. Ltd. vs Pessumal Dhanamal Aswani and ors.
, In that case the owner of a motor car had insured it with the appellant, insurance company, under a comprehensive policy.
He had permitted another person, who had insured his own car with another company, to drive it and while the other person was driving the car it met with an accident.
As a result of the accident one person died and another person sustained injuries.
Both of them were in the car.
The heirs of the man who died and the Person who sustained 181 injuries filed suits for damages.
This Court held that on a consideration of the provisions of sections 93 to 96 of the Act the insurer was liable to indemnify the person or class of persons specified in the policy in respect of any liability which the policy purports to cover in the case of that person or those classes of persons.
If the policy covers the insurer for his liability to the third party, the insurer was bound to indemnify the person or classes of person specified in the policy.
The same was the effect of sub section (1) of section 96 of the Act which provided that the insurer was bound to pay to the person entitled to the benefit of a decree he had obtained in respect of any liability covered by the terms of the policy against any person irrespective of the fact that the insurer was entitled to avoid or cancel the policy.
This meant that once the insurer had issued a certificate of insurance in accordance with sub section (4) of section 95 of the Act the insurer had to satisfy any decree which a person receiving injuries from the use of the vehicle insured had obtained against any person insured by the policy.
He was liable to satisfy the decree when he had been served with a notice under sub section (2) of section 96 of the Act about the proceedings in which the judgment was delivered.
Thus on the facts of the case before us we are of the view that the insurer is liable to pay the compensation found to be due to the claimant as a consequence of the injuries suffered by her in a public place on account of the car colliding with her on account of the negligence of the mechanic who had been engaged by the repairer who had undertaken to repair the vehicle by virtue of the provisions contained in section 94 of the Act which provides that no person shall use except as a passenger or cause or allow any other person to use a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of Chapter VIII of the Act.
Any other view will expose innocent third parties to go without compensation when they suffer injury on account of such motor accidents and will defeat the very object of introducing 'the necessity for taking out insurance policy under the Act.
We, therefore, allow the appeal and modify the order passed by the High Court and direct the insurer, the Oriental Insurance Company Ltd. to pay to the claimant Miss Filomena F. Lobo a sum of Rs.90,000 along with interest and costs as directed by the Tribunal.
The parties shall, however, bear their own costs in this Court and in the High Court.
| The appellant filed an application for contempt against the respondent in the High Court complaining of interference by the respondent with the due course of judicial proceedings.
A Single Judge of the High Court after considering the application, affidavits and submissions made on behalf of the parties took the view that it was not a fit case in which the court should exercise its jurisdiction under the contempt of Courts Act and dismissed the application.
The appellant filed the instant appeal under section 19(1) of the Act.
The respondent took a preliminary objection to the maintainability of the appeal under section 19(1).
While upholding the objection and dismissing the Appeal, this Court, ^ HELD: The High Court derives its jurisdiction to punish for contempt from Article 215 of the Constitution.
The appeal will lie under Section 19(1) of the Act only when the High Court makes an order or decision in exercise of its jurisdiction to punish for contempt.
The High Court exercises its jurisdiction or power as conferred on it by Article 215 of the Constitution when it imposes a punishment for contempt.
When the High Court does not impose any punishment on the alleged 889 contemnor the High court does not exercise its jurisdiction or power to punish for contempt.
The jurisdiction of the High Court is to punish.
When no punishment is imposed by the High Court, it is difficult to say that the High Court has exercised its jurisdiction or power as conferred on it by Article 215 of the Constitution.
[892C E] Whenever a court, tribunal or authority is vested with a jurisdiction to decide a matter, such jurisdiction can be exercised in deciding the matter in favour or against a person.
For example, a civil court is conferred with the jurisdiction to decide a suit; the civil court will have undoubtedly the jurisdiction to decree the suit or dismiss the same.
But when a court is conferred with the power or jurisdiction to act in a particular manner, the exercise of jurisdiction or the power will involve the acting in that particular manner and in no other.
Article 215 confers jurisdiction or power on the High court to punish for contempt.
The High Court can exercise its jurisdiction only by punishing for contempt.[893F G] The contention of the appellant that there would be no remedy against the erroneous or perverse decision of the High Court in not exercising its jurisdiction to punish for contempt, is not correct.
When the High Court erroneously acquits a contemnor guilty of criminal contempt, the petitioner who is interested in maintaining the dignity of the Court will not be without any remedy.
Even though no appeal is maintainable under section 19(1) of the Act, the petitioner in such a case can move this Court under Article 136 of the Constitution.
[894B C] Right of appeal is a creature of the statute and the question whether there is a right of appeal or not will have to be considered on an interpretation of the provision of the statute and not on the ground of propriety or any other consideration.
[894D E] A contempt is a matter between the court and the alleged contemnor.
Any person who moves the machinery of the court for contempt only brings to the notice of the court certain facts constituting contempt of court.
After furnishing such information he may still assist the court, but the aggrieved party under section 19(1) can only be the contemnor who has been punished for contempt of court.
[894E G] Smt.
Ujjam Bai vs State of Uttar Pradesh, [1963] 1 S.C.R. 778 and Paradakanta Mishra vs Mr. Justice Gatikrushna Mishra, [1975]1 S.C.R. 524, referred to. 890
|
Appeal No. 73 of 1953.
Appeal by special leave against the judgment and Decree dated the 31st January, 1950, of the High Court of judicature at Madras.
(Rao and Nayudu JJ.) in Appeal No. 409 of 1946 arising out of the judgment and Decree dated the 31st January, 1946, of the Court of the Subordinate judge of Bapatla in Original Suit No. 96 of 1944.
(1) 12 Rang.
243 (P.C.) 425 B. Somayya, Senior Advocate (M. Krishna Rao, with him) for the appellant.
D. Munikaniah, Senior Advocate (K. R. Choudhury, with him) for the respondent.
December 8.
The Judgment of the Court was ,delivered by MUKHERJEA J.
This appeal is directed against a Judgment and decree of a Division Bench of the Madras High Court dated the 31st January, 1950, reversing, on appeal, those of the Surbordinate judge, Bapatla, passed in Original Suit No. 96 of 1944.
The suit, out of which the appeal arises, was commenced by the infant plaintiff, now appellant before us, represented by his maternal uncle as next friend, for recovery of possession, on partition, of a half share in the properties described in the schedule to the plaint on the allegation that they were the joint family properties of himself and his father, the defendant No. 1, in which he had an equal share with the latter.
The plaintiff is admittedly the son of defendant No. 2, who is one of the legally married wives of defendant No. 1, but the latter denied that he was the father of the plaintiff and charged the plaintiff 's mother with misconduct.
The defendant No. 3 in the suit, who is the other living wife of defendant No. 1 and has no issue of her own, is alleged to have developed ill feeling and jealousy towards the plaintiff and his mother and poisoned her husband 's mind against them, so much so, that the defendant No. 1 had actually instituted a suit in the Court of the District Munsif at Ongole questioning the legitimacy of the plaintiff.
It was because of such conduct on the part of defendant No. 1 that the present suit had to be instituted.
The defence put forward by defendant No. 1 to the claim of the plaintiff was a denial of his paternity, and the whole controversy in the suit centered round the point as to whether the plaintiff was the legitimate son of defendant No. 1 by defendant No. 2, Ms second wife.
On the admitted facts of the case, there could be no question that the operation of section 112 of the Indian Evidence Act would be attracted and the 426 plaintiff being born during the continuance of a lawful wedlock between his mother and his alleged father, a Conclusive presumption of legitimacy would arise, unless it was proved that the parties to the marriage had no access to each other at any time when he could have been begotten.
The point for determination, therefore, was, whether on the evidence adduced in the case the defendant No. 1, upon whom the burden Of proving non access admittedly lay, had succeeded in discharging that burden.
The trial court decided this point in favour of the plaintiff and against defendant No. 1 and in that view substantially allowed the plaintiff 's claim.
On an appeal being taken against this decision by defendant No. 1 to the Madras High court, the learned Judges, who heard the appeal, came to the opposite conclusion and held that from the facts and circumstances of the case an inference of non access between the husband and the wife could reasonably be drawn.
The result was that the decision of the trial court was reversed and the plaintiff 's suit dismissed.
it is the propriety of this decision of the Madras High Court that is challenged before us on behalf of the plaintiff, to whom special leave to file the appeal in forma pauperis was granted by this court.
It may be stated at the outset that the presumption which section 112 of the Indian Evidence Act contemplates is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the section, namely, non access between the parties to the marriage at a time when, according to the ordinary course of nature the husband could have been the father of the child.
Access and non access again connote, as has been held by the Privy Council (1), existence and non existence of opportunities for marital intercourse.
It is conceded by Mr. Somayya, who appeared on behalf of the plaintiff appellant, that non access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by (1) Vide Karapaya vs Mayandy.
12 Rang 243.
427 evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is highly favoured by law it is necessary that proof of non access must be clear and satisfactory.
Mr. Somayya has also not contended seriously before us that the principle of English common law (1), according to which neither a husband nor a wife is permitted to 'give evidence of non access after marriage to bastardise a child born in lawful wedlock, applies to legitimacy proceeding in India.
No such rule is to be found anywhere in the Indian Evidence Act and it may be noted that the old common law doctrine has itself been abrogated in England by the provision of section 7 of the Matrimonial Cause Act, 1950 (2 ).
The position in law being thus made clear, the question for our consideration primarily is whether the learned judges of the High Court came to a correct decision on the facts of the case.
For this purpose, it is necessary to have a clear picture of all the material events as they transpired in evidence, and we will begin with a narrative of the earlier facts about which there is little or no controversyl.
Defendant No. 1 admittedly married three wives.
The first wife died leaving a son aged 2 or 3 years at the time of her death.
The defendant No. I then married the mother if the plaintiff and that was in or about the year 1930.
From the time of this marriage down to about 1940 the couple seemed to have lived quite happily, except that there was no issue of the marriage.
Sometime before June, 1940, the plaintiff 's mother fell ill and was sent to the Government hospital at Guntur for treatment.
Her step son, that is to say, the son of defendant No. 1, by his predeceased wife,.
who was also suffering from certain ailments, at the time, accompanied her to the hospital.
After about a month both of them returned and as defendant No. 2 was medically advised to live separately from her husband for some time she went to her father 's place (1) Vide Russel vs Russel, ; (2)Vide Re Feniot, 428 The son of defendant No. 1 came back to the house ' of his father but his illness grew worse and in June, 1940, he died.
In August, 1940, defendant No. 1 married his third wife who is defendant No. 3 in the suit.
The case of defendant No. 2 is that her husband treated her well for about a year after he married the third defendant but later on grew cold and indifferent and began to neglect her.
She made a grievance of this to her husband, but the latter told her that she might ' go away.
Thereupon the defendant No. 2 did go to her father 's place and on 19th March, 1942, she filed an application in the Court of the District Munsif at Ongole praying for leave to use her husband in forma pauperis for separate maintenance.
There were allegations in the plaint of abandonment and neglect by the husband.
The defendant No. 1 in his answer to this application, which was filed on 7th September, 1942, denied that he neglected his wife, or was in any manner indifferent to her health and comforts.
It was averred that as the petitioner did not bear him any child and the son by his first wife unfortunately died, he had no other alternative but to marry a third wife for the sake of progeny.
It was expressly stated in the counter affidavit that the second wife was living all along in what was described as the mud terraced house and was getting her supply of food and other necessary articles from her husband ; as a matter of fact, after consuming all that she required for herself she was sending the surplus, that remained, to her parents.
It appears that, before this application for leave to 'Sue as a pauper was heard by the court, there was an amicable settlement arrived at between the parties through the mediation of certain well wishers and two documents, namely Exs.
P 5 and P 6, were executed by and between the parties both on the 28th September, 1942.
Exhibit P 5 purports to be a deed of maintenance and under it the husband agreed to pay a sum of Rs. 100 per annum for food and raiment to his second wife during the period of her natural life, the payment to be made by the 30th of Magha Bahula 429 every year.
Certain properties specified in the schedule to this document were kept as security for due payment of these amounts.
The only recitals in this document were that the executant married a third wife as no son was born to him by the second wife, that thereupon the second wife instituted a suit for maintenance against him, and that under the advice of respectable friends the document was executed with the provisions contained therein.
By exhibit P 6, the other document, a residential house, known as the mud terraced house, was given to defendant No. 2 for the purpose of her residence during her lifetime.
The material portion of the document stands as follows : "You are my wife.
Due to the affection I have towards you, I have given to you the property mentioned in the schedule hereunder . and this very day delivered possession of the same to you for your residential purposes for your lifetime.
Hence from now you shall live in the said house and without powers of gift and sale the schedule property shall, after your lifetime, pass to me and my heirs.
" Within a few days after the execution of his document defendant No. 1, on 5th of October, 1942, paid a sum of Rs. 100 to his second wife as maintenance allowance for one year in terms of the maintenance deed exhibit P 5, and the defendant No. 2 acknowledged payment of this money by putting her thumb impression on a receipt which has been marked exhibit D 3 in the suit.
It may be mentioned here that the defendant No. 1 bad sometime before built another house which is described as "tiled house" or "upstair house" and he probably had the intention of removing to that house.
As a matter of fact, however, he did not remove thereto, the ostensible reason assigned being that certain religious ceremonies connected with entering into a new house could not be performed.
It is the case of defendant No. 2 that, after these documents were executed and registered at Addanki, she came back to the mud terraced house and lived there, since then, for several months along with her husband.
During this period she became enceinte and when the 430 time for confinement came, she was taken to the Bayer Hospital at Cherala where on the 16th of October, 1943, she gave birth to the plaintiff.
After delivery, she resided with her child at her father 's house and her husband came there at times to visit them.
When the infant was 7 months old, she ;took him to her husband 's place but her husband asked 'her to remain for some time more with her father.
While staying at her father 's house, she received summons of a suit instituted by her husband (being Suit No. 326 of 1944) in the Court of the District Munsif at Ongole against her praying for cancellation of the maintenance deed and the deed of settlement mentioned above on the ground that she was unchaste and had become pregnant by "immoral ways" and that the son born of her was not his son.
It was after this notice that the present suit was instituted.
As the plaintiff was admittedly born on the 16th of October, 1943, he must have been conceived sometime towards the latter part of December, 1942, or the beginning of January, 1943.
The material point for consideration, therefore, is whether the defendant No. 1 has succeeded in showing that there was no opportunity of access between him and defendant No. 2 during this period ? The defendant No. 1 expressly stated in his deposition that his second wife was a perfectly chaste woman up to the time when the documents Exs.
P 5 and P 6 were executed, and, even when she received the maintenance allowance of Rs. 100 from him in October, 1942.
His specific case is that defendant No.2 did never come to reside with him in the mud terraced house after the compromise was arrived at in the maintenance case.
Where she stayed was unknown to him and he heard that she went to Eddanapudi where she was living an immoral life with her paramour, one Cherakuri Venkanna.
This part of the story of defendant No. 1, has not been, belived by either of the courts below and may be rejected as altogether untrustworthy.
The learned judges of the High Court, although they disbelieved the specific allegation of un chastity made against defendant No. 2 by her husband 431 and did not find that &he was at Eddanapudi at the material period, yet relied on two sets of facts to be noticed presently, as establishing conclusively that defendant No. 2 did not live at the mud terraced house at any time after October, 1942, when she received the sum of Rs. 100 as maintenance allowance for one whole year from, her husband.
The learned judges found, therefore, that there was no opportunity for intercourse between defendant No. 2 and her husband at the period when the boy must have been conceived.
In the first place, the High Court takes the documents Exs.
P 5 and P 6 as amounting to a sort Of separation arrangement under which the parties agreed to live separately from each other and this, according to the learned judges, fully bears out the story of the husband that defendant No. 2 never came to reside in the mud terraced house.
The receipt of a sum of Rs. 100 by defendant No. 2 as advance payment of maintenance allowance for one year on 5th of October, 1942, indicates, according to the learned judges, a final confirmation of the separation arrangement and from this time onwards there was a definite cessation of marital relations between the parties.
The second set of circumstances relied upon by the High Court are the events which happened subsequent to 5th of October, 1940, and which fortify the theory of a sepa ration between the husband and the wife.
It is said that the story of defendant No. 2 that her husband accompanied her to the Bayer Hospital at Chirala when she went there for her confinement is incredible.
It is equally incredible that defendant No. 2 did remain in her father 's house for so long a period after delivery with the consent of her husband.
It would be an extremely unnatural conduct on the part of the husband, according to the High Court, if, as the evidence shows, he refused to recognise his own son when he was taken to him seven months after his birth and there is no explanation as to why he would file a suit for cancellation of the maintenance deed and the deed of settlement, by imputing unchastity to his wife and bastardy to his own son if the story of defendant 432 No. 2 about her previous relations with her husband was true.
In our opinion, the learned judges of the High Court approached the facts of the case from a wrong standpoint altogether and their conclusions are based for the most part upon surmises and speculations and not what was actually proved by the evidence.
There is no warrant, we think, for holding that the documents Exs.
P 5 and P 6 were in the nature of a separation agreement.
Such an inference not only goes against the tenor or the express terms of the documents but is not borne out even by the evidence of the mediators through whose mediation the documents were brought into being or of the persons who were admittedly present at the time when the documents were executed and signed the same as attesting witnesses.
Exhibit P 5, as stated already, simply mentions the fact of the third marriage of defendant No. 1 and the institution of a suit for maintenance by his second wife.
There is nothing in this document which even impliedly suggests that in consideration of receiving an allowance of Rs. 100 a year, the wife agreed to reside separately from her husband.
So far as exhibit P 6 is concerned, the gift is expressly stated to be an affec tionate gift by the husband to the wife and it clearly indicates that it was the intention of the parties that the wife should reside there, and delivery of possession of the house was given to the wife on the very same day that the document was executed.
We do not think that there is any justification for holding that these recitals were false and were not intended to be operative.
D. W. 8, who is one of the attesting witnesses to the documents and was examined on behalf of defendant No. 1, says in his deposition that the documents were read over to the executant and he executed them after consenting to the recitals.
P.W. 5, who was one of the mediators, says that defendant No. 2 used to live in the mud terraced house after compromise.
Unless there is cogent evidence to the contrary and apparently there is no such evidence in the present case we should certainly 433 presume that, the document exhibit P 6 was acted upon and that the possession of the mud terraced house was actually given to defendant No. 2 in accordance with its terms.
The High Court, in its judgment, records a rather curious finding on this point.
"It may be," ' thus the judgment runs, "that even down to exhibit D 3 one may presume that in the very house allotted to her by exhibit P 6 she lived, so that up to the date of exhibit D 3 it may be that there is no impossibility of cohabitation between the parties.
The real trouble arises with reference to the state of affairs after exhibit D 3.
We find in exhibit D 1 1 which is the plaint in O.S. No. 326 of 1944 filed by the present first defendant against the present second defendant for a cancellation of Exs.
P 5 and P 6 that he makes a definite allegation therein that from the time that the plaintiff married his third wife there has not been any bodily connection between him and the defendant.
" The learned judges, in our opinion, misdirected themselves in allowing these statements made by the husband himself in the suit instituted by him nearly two years after the material period, to influence their decision in regard to the effect of exhibit P 6.
Defendant No. 1 definitely admits that his second wife was perfectly chaste at the time when the sum of Rs. 100 was given to her on 5th of October, 1942, and the receipt exhibit D 3 was taken.
There is not a scrap of evidence to show that there was any bitterness of feelings between the parties at that time.
There could be no doubt that the feelings of the husband were changed and had become extremely bitter towards the plaintiff 's mother before he filed the suit for cancellation of the deeds in July, 1944; but the statements made by the husband in the plaint in that suit were made long after the dispute arose between the parties, no matter whatever the reason might be which gave rise to the dispute.
In our opinion, the subsequent conduct of defendant No. 1 or the statements made by him in the suit of 1944 could not be regarded as part of the res gestae and were not admissible as evidence against the plaintiff.
The ,defendant No. 1 could not certainly constitute himself an agent of the plaintiff for the purpose of making 434 admissions against the interest of the latter.
If the story.
of defendant No. 1 that the wife went to Eddanapudi and lived there an immoral life is disbelieved, as it has been disbelieved by the High Court, the conclusion becomes irresistible that she did reside at the mud terraced house as alleged by her and this is fully borne out by the terms of the document exhibit P 6.
There is no evidence of any unnatural conduct on the part of defendant No. 1 towards the plaintiffs mother at about the time when the plaintiff was conceived.
We do not consider it unreasonable, much less unnatural, if the father of defendant No. 2 alone took her to the hospital at Chirala at the time of her delivery and himself bore all the hospital expenses; nor is it a matter to be surprised at if defendant No. 2 after delivery stayed for several months with her infant child in her father 's house.
Apparently for some reason or other, the husband took up an unnatural attitude, but this was a subsequent event and whether he had really any grievance against his wife, or his unnatural behaviour was due to the instigation of his third wife, it is not necessary for us to investi gate.
On the evidence, as it stands, we are clearly of opinion that the defendant No. 1 did not succeed in proving that there was no opportunity for intercourse between him and defendant No. 2 at the time when the plaintiff was conceived.
He rested his whole case upon the allegation of unchastity of the plaintiff 's mother and of the plaintiff being born as the result of fornication.
While rejecting that story, the High Court, in our opinion, erred in holding that there was no opportunity for access between the parties at the material period, relying mainly upon what the husband himself said and did much after the estrangement of feelings took place between the parties, no matter whatever that was due to.
In our opinion, on the evidence in the record thefindings of the High Court cannot possibly stand.
The result is that the appeal 'is allowed, the judgment and decree of the High Court are set aside and those of the trial judge restored.
The plaintiff will have his costs of all the 'courts.
435 The court fees payable to the Government will come out of defendant No. 1 in this case.
We certify for two counsel and an agent in this appeal.
Appeal allowed.
| A joint Hindu family consisting of two branches owned a sugar mill.
After partition, the two kartas entered into a partnership in 1943, to carry on the business of the sugar mill.
The two partners represented the respective joint families, and the partnership deed provided that the death of any of the parties shall not dissolve the partnership and either the legal heir or the nominee of the deceased partner should take his place.
One of the kartas died in 1945 leaving as members of his branch of the family, three widows and two minor sons.
The other partner continued the business of the sugar mill in the firm name.
For the assessment year 1950 51, the assessee (respondent firm) applied for registration on the basis of the partnership agreement of 1943.
The Income tax Officer, Appellate Assistant Commissioner and the Tribunal held that there was no partnership between the members of the two families after the death of one of the kartas.
On a reference to the High Court, it was held that the partner ship business was carried on by the representatives of the two families after the dent), of one of the kartas.
In the appeal to this Court, on the question as , to whether during the assessment year 19 50 51, the assessee, was a firm within the meaning of section 16(1) of the Income tax Act, 1922, or an association of persons.
HELD: The High Court was wrong in its finding.
But, as a result ,of the concession by the appellant, that there was a partnership from 13th December 1949, when one of the minor sons had become a major, the status of the assessee was that of a firm for the assessment year 1950 51.
[498B] A joint Hindu family as such cannot be a partner of a firm, but it may through its karta enter into a partnership with the karta of another family.
[495H] Kshetra Mohan Sanyasi Charan Sadhukhan v, Commissioner of Excess Profits Tax, [19541 S.C.R. 268.
followed.
A widow, though a member of a joint family, cannot become its manager.
[495B] Commissioner of Income tax, C.P. & Berar vs Seth Lakshmi Narayan Raghunathdas, and Pandurang Dakhe vs Pandurang Gorle.
I.L.R. overruled.
Therefore, in the instant case, when one of the kartas died, the partnership had come to an end.
There was no scope for applying section 42(c) of the Partnership Act, 1932, because, the section is applicable only to a partnership with more than two partners.
In such a case.
if one of them dies, the firm is dissolved, but if there is a contract to 488 489 the contrary, the surviving partners will continue the firm.
On the other hand, if there are only two partners and one of them dies, the firm automatically comes to an end and, thereafter, there is no partnership for a third party to be introduced.
Section 31, which deals with the validity of a contract between the partners to introduce a third party into the partnership without the consent of all the existing partners, presupposes the subsistence of a partnership and does not apply to a partnership of two partners, which is dissolved by the death of one of them.
[492E H] Hansraj Manot vs Messrs, Gorak Nath Pandey, , disapproved.
Further, there was no evidence that the representatives of the two families constituted a new partnership and carried on the business of the sugar mill before 13th December 1949, when, it was conceded a new partnership had come into existence.
|
ivil Appeal No. 1643 of 1984.
From the Judgment and Order dated 6.7.
1982 of the Allahabad High Court in Writ Petition No. 1499 of 1974 G.L. Sanghi, Mrs. section Dixit and Pradeep Misra for the Appel lants.
Kuldip Singh, Additional Solicitor General, Ashok K. Srivastava, C.V. Subba Rao, Mrs. Sushma Suri and A. Subba Rao for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
This appeal by special leave is directed against the judgment of the Allahabad High Court dismissing the writ petition of the appellants whereby they challenged inter alia the validity of rule 328(2) of the Railway Estab lishment Code as amended by the Railway 82 Board by Advance Correction Slip No. 70.
The appellants were appointed Trade Apprentices in Locomotive Component Works (for short 'LCW ') in or about January, 1959.
There was a merger of LCW with Diesel Locomo tive Works, Varanasi, (for short 'DLW ') on August 1, 196 1, as a result of which, all the members of the staff of LCW were taken over by DLW.
On July 19, 1962, the appellants were appointed Skilled Artisans after successfully complet ing a training for three years and a half.
The regular channel of promotion to higher posts from the post of Skilled Artisan is in the following order: 1.
Skilled Artisan.
Highly Skilled Grade II.
Highly Skilled Grade I. 4.
Chargeman C. 5.
Chargeman B. 6.
Chargeman A. 7.
Assistant Foreman.
Foreman.
It is apparent from the above channel of promotion that the next higher post to which the appellants could be pro moted was the post of Highly Skilled Grade II.
In September, 1963, the appellants were, however, promoted to the post of Instructor C which is equivalent to the post of Chargeman C.
There is a controversy between the parties as to whether the post of Instructor C was an ex cadre post or not.
According to the appellants, it was an interchangeable post with Chargeman C.
We shall have occasion to consider the question later in this judgment.
It may be stated, however, that there is no dispute that the post of Instructor C is a selection post and the appellants were selected and promoted to existing vacancies in that post.
The next post to which the appellants were promoted on September 22, 1964 is the post of Chargeman B upon their selection by a constituted Selection Board on a regular basis.
Some of the respondents, who are direct recruits, also competed with the appellants for the post of Chargeman 83 B, but they could not qualify themselves in the written test.
To complete the narrative, it may be stated that the appellants have now been promoted to the post of Chargeman A.
On August 11, 1966, the General Manager of DLW prepared certain seniority lists including a seniority list of Chargeman B on the basis of the rules or guidelines framed by him.
The said seniority list was challenged by certain direct recruits by filing writ petitions before a learned Single Judge of the Allahabad High Court.
The learned Single Judge quashed the seniority list and also the guidelines or rules framed by the General Manager, DLW, on the basis of which the seniority list was prepared.
The principal ground on which the seniority list and the rules or guidelines framed by the General Meeting, DLW, were quashed by the learned Single Judge was that the General Manager, DLW, was not the General Manager of the Railway and, as such, he had no authority to frame rules or guidelines for the purpose of preparation of the seniority list.
Further, the learned Judge held that the said rules or guidelines dated August 11, 1966 were violative of Articles 14 and 16 of the Consti tution of India.
Several appeals were preferred against the judgment of the learned Single Judge including one preferred by the Railway Administration before the Division Bench of the High Court.
While upholding the finding of the learned Single Judge that the General Manager, DLW, was not competent to frame rules or guidelines, the Division Bench could not agree with the finding of the learned Single Judge that the said rules or guidelines were violative of Articles 14 and 16 of the Constitution.
It was observed that there would have been no objection if the General Manager, DLW, had utilised the relevant statutory rules in drawing up the seniority list but, admittedly, the rules in question were ignored.
Further, the Division Bench pointed out that all the concerned employees in the writ petition agreed before the learned Single Judge that the seniority list might be prepared on the basis of the relevant rules contained in the Railway Establishment Code and the Railway Establishment Manual.
The Division Bench also found that the DLW project was not a temporary project, but appeared to be a permanent project.
Upon the above findings, the Division Bench upheld the quashing of the seniority list and directed the General Manager, DLW, to prepare a fresh seniority list in the tight of the statutory provisions contained in the Railway Estab lishment Code and the Railway Establishment Manual.
After the aforesaid judgment of the Division Bench of the High 84 Court, what the Railway Board did before preparation of any seniority list by the General Manager, DLW, was to issue Advance Correction Slip No. 70 inserting rules 324 to 328 in the Railway Establishment Manual after rule 323 in Chapter III.
Of the rules, so inserted, that which vitally affected the appellants is rule 328(2) which provides as follows: "328(2).
Selection and promotions made in the Diesel Locomotive works from 1.8.1961 up to the date of notification of these rules shall not be valid.
" The Rules were amended by the Board by virtue of its power under rule 157 which provides that the Railway Board have full powers to make rules of general application to non gazetted railway servants under their control.
The date of notification of the amended Rules is March 11, 1973.
In view of rule 328(2), the promotions which were granted to the appellants from August 1, 1961 up to March 11, 1973 shall not be valid.
Needless to say, rule 328(2) has vitally affected the appellants by making invalid all the promotions given to them between the said period.
As a result, the appellants were reverted back to the position of Skilled Artisans.
The General Manager, DLW, by his circular dated December 7/8, 1973 directed the appellants to appear at the trade test.
it was further directed that if the staff concerned would fail to appear in the trade test, they would be passed over for fixation of seniority in the Highly Skilled Grade Il, although the appellants had in 1962 crossed the position of Highly Skilled Grade Il.
The appellants made a represen tation against the said circular to the General Manager, DLW, on December 12, 1973.
That representation was turned down by the General Manager on the ground that in view of the said rule 328(2), the claim for either higher positions or exemption from passing any trade test was not tenable.
It was also stated that if the appellants would fail to appear in the trade test, they would be passed over for fixation of seniority in the Highly Skilled Grade Il.
Being aggrieved by the introduction of the said rule 328(2) directly affecting the appellants and also the said circular of the General Manager, DLW, requiting the appel lants to appear at the trade test for the purpose of prepa ration of the seniority list in Highly Skilled Grade II, the appellants filed a writ petition before the High Court.
The High Court overruled the contention of the appellants that the new rules, which have been inserted in the Railway Establish 85 ment Manual including rule 328(2) by the Advance Correction Slip No. 70 by the Railway Board by virtue of its power under rule 157 of the Railway Establishment Code, were invalid.
The High Court held that the said rules were quite valid and were not arbitrary or discriminatory as contended on behalf of the appellants.
In regard to the promotions of the appellants.
The High Court took the view that they were only interim and provisional and not regular promotions under the normal rules, and that such provisional selection and promotions conferred no rights on the appellants to hold the posts to which they were promoted.
Upon the above find ings, the High Court dismissed the writ petition.
Hence this appeal by special leave.
Mr. Sanghi, learned Counsel appearing on behalf of the appellants, has challenged before us the validity of rule 328(2) as inserted in the Railway Establishment Manual by the Advance Correction Slip No. 70.
It has been already noticed that in view of the said rules, the promotions of the appellants up to the position of Chargeman A stand set aside and the appellants are reverted back to their original position of Skilled Artisan.
In other words, the length of service of the appellants for a period of about nine years has been completely wiped out by rule 328(2).
The High Court took the view that the promotions which were granted to the appellants were by way of interim meas ure and did not confer on them any title to the posts to which they were promoted.
In support of that view, the High Court has referred to the order of the General Manager, DLW, dated May 14/16, 1962 which reads as follows: "As an interim measure, all supervisory tech nical posts in the Mechanical Department will be treated as ex cadre posts and promotions will be regulated by selection.
" Before considering the question of the validity of rule 328(2), we may first of all examine whether the promotions of the appellants up to the post of Chargeman B were by way of interim measures, as found by the High Court, and/or whether such promotions are permissible by the Rules or not.
In this connection, we may refer to the circular of the Railway Board dated May 27, 1963 regarding the procedure to be followed for filling up selection posts (non gazetted).
The Board directed that if the requisite number of staff was not available in the grade next to the grade for which the selection was being held, the administration could go to the .lower grade in order to make up four 86 times the number required to be called up for selection but, in no case, can the eligibility be extended to staff in the grade lower than three times.
This circular of the Board is quite consistent with rule 2 16 of the Railway Establishment Manual.
Rule 216 also provides for a similar procedure.
The direction of the Board read with the provision of rule 2 16 clearly empowers the administration to select persons from two grades lower than the post to which promotion was to be made.
The next circular dated November 2, 1963 of the General Manager, DLW, regarding the formation of panel for promotion of mechanical supervisors and instructors is significant.
The said circular clearly provided that all staff in Mechan ical Department including instructoral staff under the Principal Technical Training School in two grades below the grade for which selection was going to be held, were eligi ble.
The Skilled Artisans having not less than one year 's service were permitted to apply for the post of Instructor in the grade of Rs.205 280 (AS) which is equivalent to that of Chargeman C.
In the channel of promotion, which has already been noticed above, the feeder post for promotion to the post of Chargeman C is Highly Skilled Grade I but, in view of the said circular dated May 27, 1963 of the Board read with rule 2 16 of the Railway Establishment Manual, persons holding posts two grades below the post to which the promotion was to be made, that is, the post of Instructor which is equivalent to the post of Chargeman C, were allowed to apply for the same.
The reason for the said circular or the said rule is that at all times suitable candidates might not be available and just to avoid administrative inconven ience, the promotions are given from posts below the feeder post.
The said circular of the General Manager, DLW, dated November 2, 1963 does not show that the promotion to the posts of selection and/or promotion to the posts of Instruc tors would be by way of interim measure or ad hoc arrange ment.
In the absence of any such indication, it will not be unreasonable to presume that such promotions were anything other than by way of interim measure or ad hoc arrangement, as contended on behalf of the respondents.
In view of the said circular dated November 2, 1963, the appellants applied for the posts of Instructors and they were selected after the requisite tests.
In the office order No. 3421 dated December 30, 1963, appointing the appellants to the post of Instructor (Machinist Gr.
C), it is clearly stated that they are appointed to the post of Instructor (Machinist Gr.
C) against existing vacancies.
Again, a similar circular dated July 18, 1964 was issued from the office of the General Manager, DLW, with regard to the filling up of 87 the posts of Chargeman B in the scale of Rs.250 380 (AS).
It was clearly stated in the circular that the staff in the Mechanical Department in two grades below the grades for which the selections would be held, were eligible to apply.
The appellants applied for the post and had to appear at the written and viva voce examinations.
Some of the private respondents also appeared in the said examinations along with the appellants but they failed, while the appellants succeeded and were empanelled for appointment to the post of Chargeman (Machinist) B.
In view of such an empanelment, the appellants were appointed Chargemen B in the grade of Rs. 250 380 against existing vacancies sometime in February, 1965.
We may now refer to a very significant document which is office order No. 25 dated January 22, 1966.
In that order, it is stated that the staff mentioned therein will have their paper lien maintained in the Shops/Division as men tioned against each and will seek their promotions in their respective Division/Shops.
In the list annexed to the said order, the present designation of the first appellant has been mentioned as "Instructor B ' ' and his revised position or designation as "Chargeman B".
In the last column under the heading "placed where lien is kept", it is stated that his lien is kept under the production Engineer (PE).
The present and revised designation of the appellant Nos. 2 and 3 have been shown as Chargeman B. The place of lien of the appellant No. 2 has been stated to be under the Production Engineer, while that of the third appellant has been stated to be under the Works Manager (B).
It is urged on behalf of the respondents that the said officer order No. 25 does not show that the appellants have any lien on the posts of Chargeman B. It only mentions that they have a lien on certain places.
We are unable to accept this contention.
A person may have lien on a post and not a lien on a place.
And all that the said order means that they have lien on the post of Chargman B, but in certain places under either the Production Engineer or the Works Manager.
There can be no doubt that a person appointed to a post on an ad hoc basis cannot have any lien on the post.
It is only when a person appointed on a permanent basis, he can claim lien on the post to which he is so appointed.
It is, therefore, not correct to say that the appellants were appointed or promot ed to the post of Instructor C or Chargeman C on an ad hoc basis or by way of an interim measure, as held by the High Court in the impugned judgment.
If they were appointed on ad hoc or purely temporary basis, they could not have been promoted to the post of Chargeman B and the said order No. 25 dated January 22, 1966 would have been quite inconsistent with such ad hoc or temporary appointments.
88 At this stage, it will be pertinent to refer to the counter affidavit of the Railway Administration in the previous writ proceedings.
In paragraph 15 of the counter affidavit, it has been stated inter alia that the post of Junior Instructor carries the same scale of pay as Charge man 'C ' and that the two posts being of the same rank and scale, staff of the one post could be transferred to the other post and vice versa.
This statement in the counter affidavit of the Railway Administration clearly indicates that the post of Instructor C and Chargeman C are inter changeable posts.
Further, it is stated as follows: "Respondent Nos. 8 to 11 (which include the three appellants herein) in the first instance offered for the post of Instructors in grade Rs.205 280 (equivalent to Chargeman 'C ' grade) and they were selected by duly constituted Selection Board.
Subsequently they offered for the post of Chargeman B grade Rs.250 280 (AS) and were promoted as such after having been selected by a Selection Committee.
Respondents Nos.
8 to 11 were appointed to grade Rs.205 280 and subsequently to grade Rs.250 280 after having been selected by a duly constituted Selection Board ' . . . ." In the circumstances, we are of the view that the appel lants were not appointed on an ad hoc or a purely temporary basis by way of interim measure as held by the High Court, but they were appointed on a permanent basis in the post of Instructor or Chargeman Grade C, which are interchangeable posts and, thereafter, promoted to the post of Chargeman Grade B.
The appointment or promotion of the appellants to the post of Chargeman C from the post of Skilled Artisan or to Chargeman B were made in accordance with the circular of the Railway Board and/or in accordance with rules 216 of the Railway Establishment Manual.
It cannot, therefore, be said that the appellants were promoted to the post of Chargeman C illegally or in violation of any rule.
There is a controver sy between the parties as to whether the post of Instructor C is an ex cadre post or not.
It is submitted on behalf of the respondents that the post of Instructor C being an ex cadre post, the appellants could not be appoint ed or promoted to the post of Chargeman C.
This contention is unsound and is fit to be rejected.
It is the clear case of the Railway Administration, as pointed out above, that the posts of Instructor C and Chargeman C are interchange able posts.
Even assuming that the post of Instructor C is an ex cadre post, nothing turns out on that inasmuch as according to 89 the Railway Administration itself, the two posts being of the same rank and scale, the staff of one post could be transferred to the other post and vice versa.
The appellants might have been appointed to the post of Instructor C, but they were transferred to the post of Chargeman C and, there fore, there was no difficulty in promoting them to the post of Chargeman B.
Now, we may consider the question as to the propriety otherwise of rule 328(2) as inserted in the Railway Estab lishment Manual by the Railway Board in exercise of its power under rule 157 of the Railway Establishment Code.
It has already been noticed that in the previous writ proceed ings the Division Bench of the High Court quashed the sen iority list and directed the General Manager, DLW, to pre pare a fresh seniority list in the light of statutory provi sions contained in the Railway Establishment Code and the Railway Establishment Manual.
The Principal ground for quashing the seniority list was that the General Manager, DLW, had no authority to frame guidelines or rules for the purpose of preparing the seniority list.
It has also been noticed that while the learned Single Judge took the view that the guidelines or rules framed by the General Manager were violative of Articles 14 and 16 of the Constitution, the Division Bench took a contrary view and after consider ing the rules or guidelines in detail came to the finding that none of the guidelines or rules framed by the General Manager was contrary to the provisions of Articles 14 and 16 of the Constitution.
Indeed, the Division Bench was of the view that no objection could be taken to the said rules or guidelines, but it had to quash the seniority list framed on the basis of such guidelines or rules inasmuch as the Gener al Manager had no authority to frame such rules or guide lines.
Accordingly, the Division Bench directed the General Manager to prepare the seniority list in accordance with the existing statutory rules.
It is curious that instead of preparing the seniority list in accordance with the existing statutory rules, as directed by the High Court, the Railway Board amended the rules and inserted by the Advance Correction Slip No. 70, among others, rule 328(2) which has been extracted above.
That rule wipes out not only the promotion granted to the appellants up to the post of Chargeman Grade B, but also the length of service of the appellants for about nine years.
The appellants have been directed by the order dated decem ber 7/8, 1973 of the General Manager to appear in a trade test in respect of the post of Highly Skilled Artisan Grade Il, otherwise their seniority in the said post will be passed over.
In other words, the appellants are in a way 90 reverted to the post of Skilled Artisan which they were holding before their promotion to the post of Instructor/Chargeman C.
No reason appears to have been given for the introduction of rule 328(2) by the Advance Correc tion Slip No. 70.
It was not the case of the Railway Admin istration in the previous writ proceedings that the promo tions that were given to the appellants were purely on an ad hoc basis.
The High Court in the previous writ proceedings did not also find that the appellants ' promotion to the post of Instructor/Chargeman C or to the post of Chargeman B were on ad hoc basic.
We have, after considering the relevant facts, come to the finding that the appellants were regular ly promoted to the post of Chargeman C and, thereafter, to Chargeman B.
In the circumstances, we do not find any justi fication for the Railway Board to incorporate a new rule, that is, rule 328(2) to the serious prejudice of the appel lants.
The Railway Administration was to comply with the order of the High Court and in compliance with the order, it should have prepared the seniority lists in accordance with the existing rules.
It is not the case of the Railway Admin istration that under the existing rules the seniority list could not be prepared.
There is, therefore, no reasonable justification for the Railway Board to insert in the Railway Establishment Manual rule 328(2).
There can be no doubt that by virtue of rule 157 of the Railway Establishment Code, the Railway Board has the power to frame rules, but such rules must be framed with certain objects in view and must not be arbitrary.
The Court is always entitled to examine whether a particular rule which takes away the vested fight of a railway employee or seriously affects him with retrospective effect, has been made to meet the exigencies of circum stances or has been made arbitrarily without any real objec tive behind it.
In the instant case, we do not find any objective or purpose behind the framing of rule 328(2) to the serious prejudice of the appellants.
In other words, rule 328(2) is arbitrary and, therefore, cannot be allowed to be operative to the detriment of the appellants.
The only justification for rule 328(2) as advanced by the learned Counsel for the respondents is that as the appellants we.re promoted on ad hoc basis to the posts of Chargeman C and Chargeman B, they had no fight to hold these posts and, accordingly, they were to be reverted to the post of Skilled Artisan.
This contention of the respondents does not find support from the counter affidavit filed by the Railway Administration in the previous writ petition nor does it appear from any order or circular of the Railway Board or the Railway Administration in support of the same.
Moreover, we have on a conspectus of the facts and circumstances and the circulars of the Railway Administration come to the finding that the appellants were not promoted on an ad hoc basis.
For the reasons aforesaid, the appeal is allowed and the judgment of the High Court is set aside.
It is directed that the respondents Nos. 1 and 2 shall not give effect to rule 328(2) as inserted in the Railway Establishment Manual by the Advance Correction Slip No. 70 in the cases of the appellants and the respondents Nos.
3 to 6.
The impugned orders dated December 7/8, 1973 and January 7, 1974 are quashed.
The respondents Nos. 1 and 2 are further directed to fix the seniority of the appellants and the said respond ents Nos.
3 to 6 on the basis of their promotions to the posts of Instructor/Chargeman C and Chargeman B.
There will be no order as to costs.
N.V.K. Appeal allowed.
| The petitioner was born and studied upto class IX in Delhi.
In 1982 she left for Nigeria, along with her parents, where her father went on deputation.
There she passed the General Certificate of Education Ordinary Level, conducted by University of London, which was recognised by the Central Board of Secondary Education, New Delhi as equivalent to Class XI in India.
She returned to India along with her family in 1984.
After passing the All India Senior School Certificate Examination in 1985, she appeared for entrance examination for admission to one of the three Medical Colleges in Delhi and passed the test.
But she was denied admission because she had not satisfied the further condition that the last two years of education should be had in a school in Delhi.
Aggrieved by the denial of admission, the petitioner filed a writ petition in this Court.
By an order dated 31st July, 1987 this Court allowed the Writ Petition and directed the respondents to admit her in one of the three Delhi Medical Colleges in the first year course prescribed for the M.B.B.S. Degree.
Giving reasons for the said order, this Court, HELD: 1.
Rules are intended to be reasonable, and should take into account the variety of circumstances in which those whom the rules seek to govern find themselves.
[861C] 2.
The qualifying condition that a candidate appearing for the 859 entrance examination for admission to a Medical College in Delhi should have received the last two years of education in a school in Delhi is unreasonable when applied in the case of those candidates who were compelled to leave India for a foreign country by reason of the posting of the parent by the Government to such foreign country.
There is no real choice in the matter for such a student, and in many cases the circumstances of the student do not permit her to con tinue schooling in India.
Theoretically it is possible for a student to be put into a hostel to continue her schooling in Delhi but in many cases this may not be feasible and the student must accompany the parent to the foreign country.
[860H, 861A] 3.
The rigour of the condition prescribing that the last two years of education should be, received in a school in Delhi should be relaxed, and there should be no insistence on the fulfilment of that condition, in the case of students of parents who are transferred to a foreign country by the Government and who are therefore required to leave India along with them.
Therefore, the denial of admission to the petitioner to a seat in one of the Medical Colleges in Delhi was unreasonable.
[861B, 861E]
|
icable to the members of the Subordinate Judicial Service and the question of confirmation of judi 494 cial officer was completely within the domain of control of the HighCourt under Article 235 of the Constitution the findings of the High Court that the officers should not be confirmed cannot be accepted.
[499E F] The judgment and orders of the Division Bench set aside.
Appellants reinstated in service with the arrears of pay since the date of termination.
The orders of the Full Bench quashing the impugned order of termination of respondent in C.A. No. 2860 of 1985 affirmed, but not the reasons for such quashing.
[499G H] & CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.
59 & 60 of 1982 etc.
From the Judgment and Order dated 9.4.1981 of the Madhya Pradesh High Court in Misc.
Petition Nos.
61 and 120 of 1980.
Dr. Y.S. Chitale, G.L. Sanghi, Mrs. A.K. Verma, Miss F. Desai, section Sukumaran, D.N. Mishra, Vivek Gambhir and S.K. Gambhir for the Appellants.
R.P. Bhatt, T.C. Sharma, Shri Narain and Sandeep Narain for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
The only question that arises for consideration in these appeals by special leave is whether Rule 3 A of M.P. Government Service (Temporary & Quasi Permanent Service) Rules, 1960, hereinafter referred to as 'the Rules ', is applicable to the members of the Subordinate Judicial Service of the Madhya Pradesh Government.
In Civil Appeals Nos.
59 & 60 of 1982, both the appellants were appointed Civil judges on temporary and officiating basis for a period of six months for training and thereafter for a period of two years on probation.
It is not necessary to state in detail the facts, and suffice it to say that both the appellants were not ultimately confirmed by the High Court after the expiry of the period of probation or the extended period of probation.
The High Court recommended the termination of services of the appellants to the State Government and pursuant to such recommendation, the State Government terminated the services of the appellants under Rule 12 of the Rules.
Being aggrieved by the orders of termination of their services, the appellants filed writ petitions 495 before the Madhya Pradesh High Court.
It was contended by them A that in view of Rule 3 A of the Rules, they should be deemed to be in guasi permanent service.
Rule 3 A provides as follows: "R. 3 A. Government servant in respect of whom a declaration under clause (ii) of Rule 3 has not been issued but has been in temporary service continuously for five years in a service or post in respect of which such declaration could be made shall be deemed to be in quasi permanent service unless for reasons to be recorded in writing the appointing authority otherwise order.
" As a declaration under clause (ii) of Rule 3 had not been issued and as the appellants were in temporary service continuously for five years in the post of Civil Judges in respect of which such declaration could be made, it was contended they should be deemed to be in quasi permanent service, and that, accordingly, the orders of termination of their services were illegal and invalid.
It was, however, contended on behalf of the respondents that the question of confirmation came within the purview of Article 235 of the Constitution of India vesting in the High Court control over subordinate courts and, consequently, the provision of Rule 3 A had no application to the members of Subordinate Judicial Service.
The Division Bench of the High Court took the view that if in Rule 3 A in place of the words "appointing authority", the words "competent authority" be read, it would be consistent with Article 235 of the Constitution.
The Division Bench overruled the contention of the appellants that although the High Court considered them unfit for confirmation, yet Rule 3 A would apply as it did not record any reason why they should not be deemed to be in quasi permanent service, as provided in Rule 3 A.
The Division Bench observed as follows: "It was also argued by the learned counsel for the Petitioners that the case of the petitioners was considered by the High Court only for their confirmation and not suitability for employment in a quasi permanent capacity, when a resolution was passed declaring them to be unfit for confirmation.
On this basis, it was argued that the High Court 's resolution could not, therefore, be construed as 'otherwise order ' contemplated by the latter part of Rule 3 A. There is no merit in this contention.
The resolution passed in the Court meeting adjudging them not fit for confirmation 496 satisfies the requirement, as continuance in quasi permanent capacity is included within the ambit or confirmation against the post held by the petitioners.
" Accordingly, the Division Bench dismissed the writ petitions filed by the appellants.
In Civil Appeal No. 2860 of 1985, the High Court of Madhya Pradesh has assailed the judgment and order of its Full Bench.
The respondent, in that appeal also, was appointed a Civil Judge on a temporary and officiating basis for a period of six months for training and thereafter for a period of two years on probation.
In his case also, the High Court did not confirm him after the expiry of the probationary period and he continued without an order of confirmation or discharge.
In a Full Court Meeting held on February 27, 1981, it was decided not to confirm the respondent, presumable in view of certain adverse remarks against him which were directed to be communicated to him.
Ultimately, his services were terminated under Rule 12 of the Rules.
Aggrieved by the order of termination, the respondent filed a writ petition in the High Court of Madhya Pradesh.
The learned Single Judge referred the petition to the Full Bench for answering the following question: "Whether the resolution of the Court Meeting dated 27.2.
1981 satisfies the requirement of an otherwise order of the appointing authority by recording reasons in writing as contemplated under Rule 3 A of the Madhya Pradesh Government Servants (Temporary and Quasi Permanent Ser vice) Rules, 1960?" The Full bench approved of the view expressed by the Division Bench in its judgment which is under appeal in the above Civil Appeals Nos.
59 & 60 of 1982 to the extent that in Rule 3 A in place of the words "appointing authority", the words "competent authority" should be read so as to make the rule workable and consistent with Article 235 of the Constitution.
The Full Bench, however, did not agree with the Division Bench that the finding of the High Court in its resolution that the respondent was not fit for confirmation, could not be regarded as 'reasons ' within the meaning of Rule 3 A, but was the 'conclusion ' of the High Court.
The full Bench also made a distinction between 'reason ' and 'conclusion ' and took the view that as no reason was given by the High Court as to why the respondent should not be deemed to be in quasi permanent service, the impugned order of 497 termination of the service of the respondent was illegal and invalid.
In that view of the matter, the Full Bench quashed the impugned order of termination of the respondent and allowed the writ petition, although the learned Single Judge referred the writ petition to the Full Bench for answering the question as mentioned above.
Dr. Chitale, learned Counsel appearing on behalf of the High Court, submits that both the Division Bench and the Full Bench proceeded on an erroneous view that Rule 3 A would apply to the members of the Subordinate Judicial Service.
He has drawn our attention to the Madhya Pradesh Judicial Service (Classification, Requirement & Conditions of Service) Rules, 1955, hereinafter referred to as 'M.P. Judicial Service Rules ', framed under the proviso to Article 309 of the Constitution.
There can be no doubt the M.P. Judicial Service Rules are special rules applying to the members of the Subordinate Judicial Service of the State of Madhya Pradesh.
Rule 16 provides as follows: "R. 16.
( 1) Every person appointed to the cadre by direct recruitment shall be required to undergo training for a period of one year at the end of which he shall be placed on probation for a period of one year.
(2) The training shall be such as may be prescribed by the High Court.
(3) Every such person shall be required to pass the departmental examinations prescribed for Civil Judges.
(4) The probationers may, at the end of the period of their probation, be confirmed subject to their fitness for confirmation and to having passed the departmental examinations by the higher standard.
(5) The High Court may in any case recommend the extension of the period of probation by a period not exceeding one year.
If the person concerned is not considered fit for confirmation at the end of such period, or fails to pass the prescribed departmental examinations, his services shall be dispensed with." Rule 16(5) provides, inter alia, that if the person concerned is not considered for confirmation at the end of the probationary period, his services.
shall be dispensed with.
Whether a member of Subordinate 498 Judicial Service should be confirmed or not is absolutely the concern of the High Court.
The question of confirmation falls squarely within Article 235 of the Constitution and no rule framed by the State Government can interfere with the control vested in the High Court under Article 235.
In B.S. Yadav vs State of Haryana, ; a Constitution Bench of this Court held that the question whether a particular judicial officer has successfully completed his probation or not is a matter which is exclusively within the domain of the High Court to decide.
In an earlier decision of this Court in High Court of Punjab & Haryana vs State of Haryana, ; it was held that the confirmation of persons appointed to be or promoted to be District Judges was clearly within the control of the High Court under Article 235 of the Constitution.
In view of the above decisions of this Court, it must be held that both the Full Bench and the Division Bench were wrong in placing reliance upon Rule 3 A of the Rules.
As the High Court did not confirm the appellants in Civil Appeals Nos.
59 & 60 of 1982 and the respondent in Civil Appeal No. 2860 of 1985, the question of their being deemed to be in quasi permanent service does not arise.
Further, as the question of confirmation was completely within the domain of the control of the High Court under Article 235 of the Constitution, there was no necessity to read the words "competent authority" in place of the words "appointing authority", for Rule 3 A was inapplicable to the members of the Subordinate Judicial Service.
Moreover, as already noticed, there is a specific provision for termination of service of a judicial officer who is found by the High Court to be unfit for confirmation as provided in Rule 16(5) of the M.P. Judicial Service Rules.
Dr. Chitale, learned Counsel for the High Court, has produced before us the confidential service records of all these judicial officers.
We have carefully gone through the yearly reports of the appellants in Civil Appeal Nos.
59 & 60 of 1982.
Whatever might be the adverse remarks against the appellant No. 1, the report of the learned District & Sessions Judge dated March 31, 1978, is quite favourable except that it has been pointed out in the report that she should be careful to see that all her judgments are properly paragraphed and findings are noted against all issues.
Further, it has been observed that there is need for improvement in the quality of her work.
In view of the said report of the District & Sessions Judge, we do not think that the High 499 Court was justified in not confirming the appellant.
So far as appellant No. 2 in Civil Appeal Nos.
59 & 60 of 1982 is concerned, the report for the period from 1 4 1977 to 31 3 1978 contains the remark "very good".
It was also recorded under the general remarks "He is very industrious.
During the year under report he disposed of 68 old civil suits; ' In the report for the period ending September 30, 1978 it has been observed "His reputation is bad at present.
He has been asked to improve his image." This observation is somewhat vague.
The report for the period ending March 31, 1979 is, however, completely in favour of the appellant.
The performances of the appellant have been found to be highly satisfactory.
As regards the respondent in Civil Appeal No. 2860 of 1985, although he succeeded before the Full Bench on a technical plea based on Rule 3 A of the Rules which is not applicable, we are of the view that the High Court had justification for not confirming the respondent.
It, however, appears from the records that the respondent has improved much and, indeed, the report for the period from 24 10 1985 to 31 3 1986 shows that his performances for the said period were satisfactory.
The subsequent report for the period from 1 4 1986 to 31 3 1987 also shows that on the whole his performances were satisfactory.
Accordingly, we are not inclined to interfere with the order of the Full Bench.
In the circumstances, although we accept the contention made on behalf of the High Court that Rule 3 A of the Rules was not applicable to the members of the Subordinate Judicial Service, and that the question of confirmation of judicial officer was completely within the domain of control of the High Court under Article 235 of the Constitution, we are unable to accept the finding of the High Court that the appellants in Civil Appeals Nos.
59 & 60 of 1982 and the respondent in Civil Appeal No. 2860 of 1985 should not be confirmed as Civil Judges.
In view of the discussion made above, we set aside the judgment and order of the Division Bench in Civil Appeals Nos.
59 & 60 of 1982 and also the impugned orders terminating the services of the appellants.
The appellants are reinstated in service with arrears of pay, since the date of termination, to be paid within three months from date.
So far as Civil Appeal No. 2860 of 1985 is concerned, we affirm the order of the Full Bench quashing the impugned order of termination of services of the respondent, but not the reasons for such quash 500 ing and direct that for a period of three years the respondent shall be The appeals are disposed of as above.
There will, however, be no order as to costs in any of them.
N.P.V. Appeals disposed of.
| % The petitioners, who were engaged on terms of casual labour for periods varying between 10 and 16 years in the Construction Department of the Signal Unit in the Northern Railway, filed writ petitions in this Court alleging that though they had put in continuous service for quite a long period, the Railway Administration the respondent, had not treated them as temporary servants and had applied discriminatory rates of wages, and prayed for a direction to treat them at par with maintenance workers, and to declare that they were entitled to equal pay for equal work and absorption in the regular cadre in The permanent category as per the circulars issued by the respondents.
The respondents in their counter affidavits contested the claim of the petitioners contending that out of the forty four petitioners, sixteen bad been empanelled, five of whom had been given temporary appointments, eleven had refused to join and seventeen had been given temporary status, and that by the Railway Board 's directions on January 1, 1984, project casual labourers were now entitled to all privileges that were applicable to open line temporary railway servants, that temporary status will first be given in the cadre of Khallasis and then promotion to skilled category, after conducting trade test, and that the employees in the open line acquired temporary status on completion of 120 days of service whereas such status was acquired by the casual labour in project work on completion of 360 days as formulated under orders of this Court.
Disposing of the writ petitions, ^ HELD: Casual labour seems to be the requirement of the Railway 139 administration and cannot be avoided.
The Railway Establishment A Manual has made provisions for their protection, but implementation is not effected.
Several instructions were issued by the Railway Board and the Northern Railway Headquarters to remove the difficulties faced by the casual labour but there is slackness in enforcing them.
This Court hopes and trusts that such an unfortunate situation will not arise again and in the event of any such allegation coming to the Court, the Administration will have to be blamed.
[144F G] No doubt, the petitioners have put in more than 360 days of service.
But keeping the prevailing practice, distinction between the casual labour employed in the open line, and in the project line cannot be obliterated.
[141D F] The Railway Administration should take prompt steps to screen such of the petitioners who have not yet been tested for the purpose of regularising their services.
[144C] The respondents are directed to consider the claims of the petitioners promptly and make appropriate orders for their regularisation.
[144D E] The petitioners are entitled to the same pay as is admissible to others, either in the project or in the open line.
Retiral benefit of pension is not admissible.[144D,B]
|
Civil Appeals Nos.
2801 06 of 1987.
689 From the Judgment and Order dated 8.7.1987 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal Nos.
E 1533, 1521, 1528 30 & 1531 of 1986and Order No.498 to 503 of 1987.
Soli J. Sorabji, V.J. Francis, N.M. Popli, Mrs. Nisha Bagchi and section Ganesh for the Appellant.
Mrs. Indu Malhotra and P. Parmeshwaran for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These are appeals under Section 35L(b) of the Central Excises & Salt Act, 1944 (hereinafter called 'the Act ').
The appellant manufactures compressed Oxygen and dissolved acetylene falling under tariff item No. 14H of the First Schedule of the Act as it stood at the relevant time.
The appellant had received showcause notice in respect of the period from 1.1.1984 to 31.1.1984 and also five other show cause notices for different periods, in respect of the price lists submitted by the appellant seeking approval of the price list of gases in question.
It was found by the Tribunal that the appellant manufactures and sells oxygen and D.A. Gases.
These are sold from the factory of the appellant at Visakhapatanam and from their depot/service centres at Vijayawada, Rajamundry, Vadlapudi, Jeypore and Damanjodi.
They sell their product to Government undertakings as per the rates determined by DGS & D, New Delhi.
In respect of other buyers the appellant sell their product at various prices on slab basis.
It is stated that the slab basis is related to what the manufacturers call a quantitative discount.
According to the Tribunal, the revenue had undertaken verification of the prices charged by the manufacturers at their depots and service centres.
These were found to be much more than the prices indicated in the approved price list.
It also observed that the manufacturers did not furnish to the department quantities of their product which were sold from their depots/service centres and that the appellant charged from their buyers, apart from the declared price list, the following: (i) Delivery and collection charges (where applicable); (ii) Cylinder deposit; and (iii) Rentals.
690 The department 's case was that these being additional charges, should form part of the assessable value.
It was urged on behalf of the revenue that the price list submitted by the manufacturers in respect of clearances from their Vijayawada depot the appellant claimed abatements on account of freight and handling charges in respect of which they did not produce any evidence.
It was, therefore, held by the Department that no such deduction was admissible.
It, however, appeared to the Tribunal that the manufacturers have admitted that separate prices were indicated for the same goods in respect of Visakhapatnam factory which is the place of manufacture and Vijayawada, a place about 400 Km.
away which is only a depot.
It was explained that the difference in the prices was in consideration of special delivery and collection charges which were admittedly incurred for transporting the goods from Visakhapatnam to Vijayawada.
The Tribunal noted that the appellant had not come forward to offer concrete evidence of actual freight charges etc.
It, however, emphasised that the price at the factory gate is ascertainable.
Assessment should, therefore, be made in terms of that price.
Hence, there was no scope of deduction from that price.
It, therefore, directed that if the ex factory prices were not ascertainable and the goods were to be assessed ex depot, then it would be for the manufacturer to claim on the basis of actual evidence.
It remanded the case to the Asstt.
Collector to refix the assessable value as directed.
It is necessary to reiterate the principle upon which the assessable value will have to be determined in this case.
The cost of transportation from factory at Visakhapatnam and the depot at Vijayawada cannot be included normally in computation of the value.
The value has to be computed under Section 4(1)(a) read with Section 4(4)(d)(i) of the Act, Where the wholesale price is ascertainable at the factory gate, the question of transportation charges becomes entirely irrelevant.
The cost of transportation from the factory gate to the place of delivery and transit expenses were not to be added to the wholesale price at factory gate for purposes of duty under the Act.
In this case the price of the goods at the factory gate Visakhapatnam is known.
It is clear from Section 4 that the delivery and collection charges have nothing to do with the manufacture as they are for delivery of the filled cylinders and collection of the empty cylinders.
These charges have to be excluded from the assessable value.
Insofar as the loading charges incurred for loading the goods within the factory are concerned, they are to be included in the assessable value, irrespective of who has paid for the same but 691 the loading exepnses incurred outside the factory gate are excludible.
Duty of excise is a tax on the manufacture, not a tax on the profits made by a dealer on transportation.
It is necessary to reiterate that value for assessable goods must be determined in terms of section 4 of the Act.
The said section 4(1) provides that where the duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of this section be deemed to be the normal price therefore, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place or removal, where the buyer is not a related person and the price is the sole consideration for the sale.
"Place of removal" under section 4(4)(b) has been defined to mean a factory or any other place or premises of production or manufacture of the excisable goods or a warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without payment of duty, from which such goods are removed.
The scope of determination of value has been explained and reiterated by this Court in Union of India and others etc.
vs Bombay Tyre International Ltd. etc.
; , Following the principle of the said case the Tribunal noted in the judgment under appeal that the price ex factory is ascertainable.
If once that is the position as the Tribunal rightly pointed out, the issue of deduction of rate from the prices ex depots does not survive for the decision.
But if the ex factory prices were not ascertainable and the goods were to be assessable ex depot, then it would be for the manufacturer to claim on the basis of actual evidence the deductions that should be admissible from the price list as per the provisions of the Act.
Counsel for the respondent, Ms. Indu Malhotra who argued this case with considerable ability before us drew our attention to the following observations in the Bombay Tyre International (supra) at pages 376 and 377 of the report: "Accordingly, we hold that pursuant to the old section 4(a) the value of an excisable article for the purpose of the excise levy should be taken to be the price at which the excisable article is sold by the assessee to a buyer at arm 's length in the course of wholesale trade at the time and place of removal.
Where, however, the excisable article is not sold by the assessee in wholesale trade but, for example, is consumed by the assessee in his own industry the case is one 692 where under the old section 4(a) the value must be determined as, the price at which the excisable article or an article of the like kind and quality is capable of being sold in wholesale trade at the time and place of removal.
Where the excisable article or an article of the like kind and quality is not sold in wholesale trade at the place of removal, that is, at the factory gate, but is sold in the wholesale trade at a place outside the factory gate, the value should be determined as the price at which the excisable article is sold in the wholesale trade at such place, after deducting therefrom the cost of transportation of the excisable article from the factory gate to such place".
She also drew our attention to the observations of the Court at pages 391 and 392 of the Report: "Therefore, the expenses incurred on account of the several factors which have contributed to its value upto the date of sale, which apparently would be the date of delivery, are liable to be included.
Consequently where the sale is effected at the factory gate, expenses incurred by the assessee up to the date of delivery on account of storage charges, outward handling charges, interest on inventories (stocks carried by the manufacturer after clearance), charges for other services after delivery to the buyer, namely after sales service and marketing and selling organisation expenses including advertisement expenses can not be deducted.
It will be noted that advertisement expenses, marketing and selling organisation expenses and after sales service promote the marketability of the article and enter into its value in the trade.
Where the sale in the course of wholesale trade is effected by the assessee through its sales organisation at a place or places outside the factory gate, the expenses incurred by the assessee upto the date of delivery under the aforesaid heads cannot, on the same grounds, be deducted.
But the assessee will be entitled to a deduction on account of the cost of transportation of the excisable article from the factory gate to the place or places where it is sold.
The cost of transportation will include the cost of insurance on the freight for transportation of the goods from the factory gate to the place or places of delivery.
" 693 She contended that in the instant case, in view of the conduct of the dealer, there was doubt as to what was the real ex factory price.
If there was a finding that there was no real ex factory price, then the aforesaid observations would have required serious examination.
But in this case, the case has not proceeded on that basis.
On the contrary, there is a clear finding that there was a ex factory price which is ascertainable.
If once that is the position that should be the basis upon which the value is to be determined, the other expenses, costs or charges must be excluded.
Inasmuch as that is the correct position in law, we direct that the Assistant Collector will re fix the assessable value as indicated in this judgment.
The Tribunal 's judgment is modified accordingly.
These appeals are disposed of.
There will be no order as to costs.
G.N. Appeals disposed of.
| The first appellant in this appeal, a private limited company, occupying a portion of the premises belonging to the United Commercial Bank, claimed to be the tenant of the Bank, but this was not admitted by the respondent Bank.
The Bank alleged that the appellant company had been allowed to occupy a portion of the Bank 's premises as licensee in consideration of certain accountancy and secretarial services rendered to the Bank.
The Bank had issued a notice of eviction to the appellant company under the West Bengal Premises Tenancy Act, 1956 ( 'the 1956 Act ').
Subsequently, the Bank issued a notice to the appellants under the Public Premises (Eviction of unauthorised occupants) Act, 1971 ( 'the 1971 Act ') which is an Act of the Parliament.
The appellants filed a writ petition in the High Court, agitating the question whether the impugned Act which provides for eviction of unauthorised occupants from public premises belonging to or taken on lease by a corporation established by or under a Central Act and owned or controlled by the Central Government was ultra vires as it was beyond the legislative power of the Parliament to extend the applicability of the said Act to such premises.
The appellants were interested in denying the legislative power of Parliament in so far as it purported to extend the applicability of the 1971 Act to the premises belonging to or taken on lease by public sector corporations.
Their argument went to the extent of urging that only the State legislatures and not Parliament were competent to legislate on a topic of landlord tenant relationship in respect of land and buildings.
According to the appellants, the provisions of 1956 Act were squarely applicable and should have been resorted to by the Bank for evicting them.
494 The appellants contended that a legislation of the type of West A Bengal Land (Eviction of unauthorised occupants) Act, 1962 (1962Act), which was on the pattern of the 1971 Act, would fall within the legislative field exclusively open to the State Legislatures and that the 1971 Act was ultra vires the Parliament in so far as it purported to affect the appellants ' rights.
Dismissing the appeal, the Court, ^ HELD: Per Sabyasachi Mukharji, J.
His Lordship agreed with Ranganathan, J. that the appeal should be dismissed.
His Lordship preferred the view of the Madhya Pradesh High Court in L.S. Nair vs Hindustan Steel Ltd. Bhilai, A.I.R. 1980 M.P. 106 to the view of the Bombay High Court in Miscellaneous Petition No. 458/79 Elliot Waud Hill (P) Ltd. vs Life Insurance Corpn.
This Court had in this Case proceeded on the short question whether the impugned Act which provides for eviction of unauthorised occupants from public premises to the extent it had been extended to premises belonging or taken on lease by a corporation established by or under a Central Act and owned or controlled by the Central Government, was ultra vires or beyond the legislative power of the Parliament to extend the applicability of the Act to such premises.
[498D G] There was no dispute, as emphasised by Ranganathan, J., as to whether the premises in question or of this type was a public premises.
For the purpose of this appeal, once it was held that the Public Premises (Eviction of Unauthorised occupants) Act was intra vires the Parliament, no further issue between the parties survived.
It was not necessary to consider whether the provisions of the 1971 Act even if intra vires would pervail upon the provisions of the State Legislation.
For the purpose of this appeal, it was unnecessary to express any view on the amplitude and scope of Article 254 of the Constitution.
[498H; 499A B] It had to be taken that the legislation in question must be under stood in its pith and substance, and so understood, the Act in question in this case is in respect of transfer of property other than agricultural land and as such falls in Entry 6 of List III of the 7th Schedule to the Constitution.
It is clear from the decision of this Court in Indu Bhusan Bose vs Rana Sundari Devi and Anr., ; and the subsequent decision in V. Dhanapal Chettiarv.
YesodaiAmmal; , that the subject matter of housing accommodation and control thereof falls within the purview of concurrent list.
In that view 495 of the matter, it could not be convassed that the 1971 legislation in question was beyond the competence of the legislature.
[499C E] Per section Ranganathan, J.
The present agrument of the appellants might not have been open to them if the premises of the Bank could be said to be premises belonging to the Union Government In that case, the legislation to the extent it governs such premises can be said to fall under Entry 32 of List I as one covering the "property of the Union".
Though, the premises being situated in Calcutta any legislation under that entry in regard thereto would be subject to State Legislation, the state Legislation can only govern "save in so far as Parliament by law otherwise provides." Parliament having provided otherwise by the 1971 Act, that Act will prevail over the 11/56 and 1962 Acts.
Though the Bank was a corporation wholly owned and controlled by the Government, it had a distinct personality of its own and its property could not be said to be the property of the Union.
The position was beyond the pale of controversy after the decision of this Court in Bacha F.Guzdar vs C.I.T., ; ; State trading Corporation of India Ltd. vs C.T.O., [1964] 4 S.C.R. 99, and many other cases.
lt was not possible for the respondents to support the legislation qua the premises under Entry 32 of List I. [505A D] Entry 32 of List I being out of the way, the appellants contended that the legislation squarely regularly fell under Entry 18 of List II.
A question as to the interpretation of Entry 18 (or its predecessor, Entry 21 of the Provincial List under the Government of India Act, 1935) had arisen before the Federal Court and Privy Council, and also was considered in some decisions of this Court, which, except in the case of Indu Bhusan Bose vs Rama Sundari Devi, ; , were not helpful in deciding the issue before the Court.
In respect of Indu Bhushan 's case, while the respondents contended that the ruling concluded the issue in their favour, the appellants urged that it could not be taken as a decision that the house tenancy legislation could not come under Entry 18 of List II.
[505E; 506B C; 513C] It was true that the decision in Indu Bhushan 's case ultimately turned on the wider interpretation of Entry 2 of List I favoured by this Court, nevertheless, the judgment contains a specific discussion of the terms of Entry 21.
Indu Bhushan must be taken to have expressed a view that premises tenancy legislation in so far as it pertains to houses and buildinYs is referable not to Entry 18 of List II but to entries 6,7 496 and 13 of List III.
The decision of the larger Bench of this Court in V. Dhonpal Chettier vs Yesodai Ammal, ; , also reinforced the same line of thinking.
The discussion and ratio of Dhanpal Chettier fall into place only on the view that by that time it was taken as settled law that State house control legislations were referable to the legislative powers conferred by the Concurrent List.
[513C; 520D E] Entry 18 should be given as wide a construction as possible consistent with all the other entries in all the three legislative Lists.
There is no reason why the first topic dealt with by the entry, viz. land, should be narrowly interpreted.
lt should be understood as including all types of land, rural or urban, agricultural or non agricultural, arid, cultivated, fallow or vacant, What is 'land ' can be gathered from the other words of the entry which attempt a paraphrase.
It is not possible to interpret this entry as encompassing within its terms legislation on the relationship of landlord and tenant in regard to houses and buildings.
All the legislation coming up for consideration in the present case are referable to entries in the concurrent List and the topic of legislation is not referable to Entry 18 of List II.
The provisions of the 1971 Act, in so far as they were made applicable to the premises of the respondent Bank, are intra vires and valid.
[520F H; 525E] Once it was held that the 1971 Act is infra vires the Parliament, no further issue between the parties survived.
There was some discussion r. before this Court as to whether the provisions of the 1971 Act, even if intra vires, would prevail against the provisions of the State legislations.
This case is clearly governed by the primary rule in Article 254(1) of the Constitution under which the law of Parliament on a subject in the concurrent List prevails over the State Law.
Article 254(2) of the Constitution is not attracted because no provision of the State Acts (enacted in 1956 and 1962) were repugnant to the provisions of an earlier law of Parliament of existing law.
Even if the provision of the main part of Article 254(2) can be said to be somehow applicable, the proviso, read with Article 254(1), reaffirms the supremacy of any subsequent legislation of Parliament on the same matter even though such subsequent legislation does not in terms amend, vary or repeal any provision of the State Legislation.
The provisions of the 1971 Act will, therefore, prevail against those of the State Acts and were rightly invoked in this case by she respondent Bank.
[525F; 529C E] There was no substance in the appellants ' contention that the provision in the 1971 Act appointing one of the officers of the respondent Bank as the Estate officers was violative of Article 14.
[529F] 497 The appeal failed.
L.S. Nair vs Hindustan Steel Ltd. Bhilai, A.I.R. 1980 M.P. 106; Elliot Waud Hill (P) Ltd. vs Life Insurance Corporation Miscellaneous Petiton No. 458/79 before Bombay High Court; Indu Bhusan Bose vs Rama Sundari Devi and Anr. ; ; A.C. Patel vs Vishwanath Chadda, ILR 1954 Bombay 434; V. Dhanapal Chettiar vs Yasodai Ammal, ; ; Bacha P. Guzdar vs C.I.T., ; ; State Trading Corporation of India Ltd. vs C.T.O [1964] 4 SCR 99; A.P. State Raod Transport Corporation vs I.T.O.; , ; Heavy Engineering Mazdoor Union vs State, ; Vidarbha Housing Board vs I.T.O., ; Western Coalfields Ltd. vs Special Area Development Authority; , ; Manohar vs C.G. Deasi, AIR 1951 Nag. 33; Raman Dass vs State, AIR 1954 All.
707; Darukhanawala vs Khemchand, ILR ; M. Karuna vs State, AIR 1955 Nag 153, Kewalchand vs Dashrathlal, ILR ; Sukumar Dutta vs Gaurishankar, ; Raval & Co. vs Ramachandran, AIR 1967 Mad. 57;Mangtulal vs Radhey Shyam, AIR 1953 Pat.
14; Milap Chand vs Dwarakadas, AIR 1964 Raj 252; Rama Sundari vs Indu Bhusan, AIR 1967 Cal. 355; Nawal Mal vs Nathu Mal, AIR 1962 Raj. 193; Bapalal & Co. vs Thakur Das, AIR 1982 Mad. 309; Vnited Province vs Atiga Begum, ; Megh Raj vs Allan Rakhia, AIR 1947 PC 72; Atma Ram vs State of Punjab, [1959] Supp.
1 S.C.R. 748; Manaklal Chhotalal vs M.G. Makwana & Ors., ; ; Babu Jagtanand Sri Satyanarayanji, ILR 40 Patna 625; Union of India vs Valluri section Chaudhary, ; , State vs Peter; , , 292; Jaisingh Jairam Tyagi vs Maman Chand, ; ; Hoechst Pharmaceuticals vs State; , ; Dhillon 's case, [1972] 2 S.C.R. 33; Jain Ink Manufacturing Co. vs LIC, ; and Zaverbhai Amaidas vs State, [1955] S.C.R. 799, referred to.
|
ition Nos.
692,937 1063, 1111 1115, 1558/80, 5441 62, 6217/80 and 6529 6551/80.
(Under Article 32 of the Constitution.) AND Civil Appeal Nos. 3297 & 2689 of 1979.
Appeals by special leave from the Judgment and Orders dated 25 5 1979 & 22 1 1979 of the Karnataka High Court in Regular Second Appeal No. 551/77 & W.P. Nos. 551/77 and 6555/78.
871 WITH Civil Appeal No. 1895 of 1979.
Appeal by special leave from the Judgment and Order dated 22 1 1979 of the Karnataka High Court in W.P. No. 35/76.
AND Civil Appeal No. 1507 of 1980.
Appeal by Special Leave from the Judgment and Order dated 2 5 1980 of the Patna High Court in Civil Writ Jurisdiction Case No. 394 of 1980.
AND Civil Appeal No. 1715 1716 of 1980.
Appeals by special from the Judgements and Orders dated 30 8 1979 and 2 5 1980 of the Patna High Court in C.W.J.C. Nos. 5136/78 & 840/80.
section V. Gupte, V. M. Tarkunde, Soli J. Sorabjee, K. K. Venugopal, K. N. Bhatt and T. section Sundrajan for the Petitioners in WP Nos. 692, 937 1063 and 1111 1115/80.
Dr. Y. section Chitale, R. P. Bhatt and A. K. Goel for the Petitioner in W. P. No. 1558/80.
section G. Sundraswamy, Ravindran, Vijay Kumar Verma and K. N. Bhat for the Appellant in CA Nos.
1895/79 & 2689/79.
V. M. Tarkunde, K. R. Nagaraja, P. K. Rao and Aloke Bhattacharya for the Appellant in CA No. 3297/79.
Soli J. Sorabjee, B. P. Maheshwari, Suresh Sethi and Miss Asha Jain for the Appellant in CA No. 1507/80.
Lal Narain Sinha, attorney General, O. P. Rana and M. N. Shroff for Respondent No. 1 in WP Nos. 692, 937 1063 and 1111 1115/80.
A. K. Goyal for the Petitioner in WP 5441 62 of 1980.
K. K. Singhvi, A. K. Gupta, Brij Bhushan and N. P. Mahindru for RR 3 in WP 692, 937 1063, 1111 1115/80 and RR in WP No. 1558/80.
Lal Narain Sinha, Attorney General and N. Nettar for RR 1 in CA 1895 and 2689/79.
B. Keshava Iyengar, Advocate General and N. Nettar for State of Karnataka in CA 1895 & 2689/79.
872 H. B. Datar, Miss Madhu Moolchandani and R. B. Datar for RR 2 in CA 1895 & 2689/79.
K. K. Singhvi, N. P. Mahindru and A. K. Gupta for RR No. 3 in WP Nos. 5441 62/80.
section section Javali, B. P. Singh, Ranjit Kumar and Ravi Prakash for Intervener in CA Nos.
1895/79.
Lal Narain Sinha, Attorney General, R. B. Mehto, B. P. Sinha and Naresh K. Sharma for the Intervener in WP No. 692/80.
Lal Narain Sinha, Attorney General, R. B. Mehto, B. P. Singh Ravi Prakash, Ranjit Kumar and Naresh K. Sharma for RR 3 5 in CA 1507/80.
K. G. Bhagat and D. Goburdhan for State of Bihar in CA 1507/80.
section section Ray and M. P. Jha for the Appellant in CA 1715 1716/80.
Lal Narain Sinha, Attorney General, R. B. Mehto, B. P. Singh.
Ravi Prakash, Ranjit Kumar, Naresh K. Sharma and J. section Rathore for RR 3 5 in CA Nos.
1715 1716/80.
V. M. Tarkunde, K. R. Nagaraja, P. K. Rao and Aloke Bhattacharya for Petitioner in WP 6217/80, 6529 6551/80.
H. B. Datar, Miss Madhu Moolchandani and R. B. Dattar for the Respondent (Market Committee).
H. B. Datar and N. Nettar for RR (State of Karnataka).
K. G. Bhagat and D. Goburdhan for the State of Bihar in CA 1715 1716/80.
V. M. Tarkunde, P. K. Rao, Aloke Bhattacharya and K. R. Nagaraja for the Petitioner in WP 6529 51/80.
N. Nettar for the Respondent in WP No. 6529 51/80.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Reluctant traders, unwilling to move their places of business into the markets or market yards, as they are differently called in the States of Maharashtra, Bihar and Karnataka, set up by respective Market Committees under various State Agricultural Produce Marketing Acts, offer their resistance through these Writ Petitions and Civil Appeals.
We will first recite the facts in one of the cases (Writ Petition No. 692 of 1980) and thereafter consider the questions raised in that as well as the other cases.
The Petitioner in Writ Peti 873 tion No. 692 of 1980 is a trader presently carrying on business in 'Gur ' and other commodities at 1221 Bhavani Peth, Pune.
In exercise of the powers conferred by Sec.
4A(2) of the Bombay Agricultural Produce Markets Act, 1939, by a notification dated July 6, 1961, the locality known as Bhavanipeth and Nanapeth of the Pune City was declared as one of the principal market yards for the market area consisting of Pune City and Haveli Talukas.
The market area had been so declared by a notification dated May 1, 1957, pursuant to a declaration that it was intended to regulate the purchase and sale of 'gur ' in the market area.
The Bombay Agricultural Produce Markets Act, 1939, was repealed and replaced by the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963.
By Sec.
64 of the Act the notifications previously issued etc.
under the provisions of the repealed Act were kept alive for the purposes of the new Act.
On March 23, 1971, the present Market Committee known as Krishi Utpanna Bazar Samiti, Pune, was constituted under Sec.
4(1) of the 1963 Act.
On April 21, 1971, the Director of Agricultural Marketing published a notification declaring his intention to regulate marketing of a large number of commodities in the market area of Haveli and Pune City Taluks.
On October 4, 1975, the Director of Agricultural Marketing, Maharashtra State, exercising his powers under Sec.
5(2) of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963, declared the locality known as Market Yard Gultekadi as the principal market for the market area for the marketing of various commodities specified in the notification.
Thereafter on October 8, 1975, a Circular was issued to all Adatis, merchants, and licence holders, particularly wholesale dealers dealing in Gur, Halad, Dhania, etc.
in the vicinity of Bhavanipeth Nanapeth informing them that Bhavanipeth Nanapeth will cease to be a market from the midnight of October 13, 1975 and that the market yard Gultekadi had been declared as the principal market for the market area.
The circular went on to say that anyone carrying on business anywhere except Gultekadi was liable to be prosecuted.
The result of the notification dated October 4, 1975, and the Circular dated October 8, 1975 was that it was not permissible for anyone to carry on trade in any of the notified agricultural commodities outside the Gultekadi market yard on and after October 14, 1975.
It meant that traders like the petitioner who had for generations been carrying on business in these commodities in Bhavanipeth Nanapeth had perforce to move into Gultekadi market yard if they wanted to stay in the business.
Consequent upon representations made by the Pune Merchants Chamber and the interim order in a Writ petition filed in the Bombay High Court by the Chamber the date notified for the commencement of the functioning of the Principal Market in Gulekadi 874 was postponed from time to time, Finally, by a public notice dated March 6, 1980, all wholesale traders, commission agents and others dealing in agricultural produce in Bhavanipeth Nanapeth and surrounding areas were informed that with effect form March 17, 1980, wholesale trade in the regulated agricultural produce could be carried on in the Gultekadi market yard only.
The petitioner seeks to resist the situation thus sought to be forced upon him and challenges the notification dated October 4, 1975, and the consequential notices requiring him to carry on business in regulated agricultural produce in the Gultekadi market yard and at no other place.
Similarly, in Writ Petition Nos. 937 to 1063 of 1980 and Writ Petition Nos. 1111 to 1115 of 1980, 132 other traders who are presently carrying on business in the existing market of Bhavanipeth Nanapeth question the notification and the notices following the notification.
In Writ Petition Nos. 1558 of 1980 and 5441 to 5462 of 1980 the petitioners are wholesale traders in onions and potatoes who carry on their business in the Maulana Azad Road Market in Bombay.
They complain against a notification dated December 5, 1978 by which it was declared that after January 26, 1979, marketing of potatoes and onions shall be carried on at the Principal Market at Turbhe and at no other place.
It appears that initially, for the market area comprising Greater Bombay and Turbhe Village in Thana Taluka, the newly established market at Turbhe was declared as the Principal Market and the existing markets at Maulana Azad Road and Mahatma Phule Mandai were declared subsidiary markets.
This was by a notification dated January 15, 1977.
Later by the impugned notification dated December 5, 1978, the subsidiary markets were abolished and the market at Turbhe alone was declared as the Principal Market for the area comprising Greater Bombay and Turbhe village.
It was argued on behalf of the petitioners that the Maharashtra Agricultural Produce Marketing (Regulation) Act 1963 did not invest the Director of Marketing or the Market Committee with any power to compel a trader to transfer his activity from a previously existing market to a principal or subsidiary market established under Sec.
5 of the Act.
There was no provision in the Act by which a trader could be compelled to market declared agricultural produce in the principal or subsidiary market established under Sec.
5 and in no other place.
This was a feature which distinguished it from the Bombay Act of 1939 and the Agricultural Produce Marketing Acts of some other States.
Rule 5 of the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967, which purported to provide that no person shall market any declared agricultural produce 875 in any place in a market area other than the Principal Market or subsidiary market established therein was ultra vires.
It was also submitted that once a principal or subsidiary market was established at one place there was no provision in the Act which enabled the principal or subsidiary market to be transferred to another place.
In any event it was urged that the notification was an unreasonable restriction on the right of the petitioners to carry on their trade.
It was also submitted.
and this appeared to be the main thrust of the argument of most of the counsel for the various petitioners that the Act did not cover transactions between trader and trader and transactions by which the agricultural produce was imported into the market area from outside the market area.
5 and 6 and Rules 5 and 6 had to be so read the language permitted such a construction as to make a distinction between a sale of agricultural produce by a producer to a trader which had to be within a market and a subsequent sale by a trader to a trader which could be anywhere in the market area.
It was submitted that if Sections 5 and 6 and Rules 5 and 6 were to be construed as compelling transactions between trader and trader also to take place within a market they were invalid.
In the petitions of the Bombay merchants it was further urged that Sec.
13(1A) which was a special provision declaring Greater Bombay and Turbhe village a Market Area was unreasonable and invalid.
For a proper appreciation of the submissions made, it is necessary to refer to some of the relevant provisions of the Maharashtra Agricultural Produce Marketing (Regulation) Act 1963 and the Maharashtra Agricultural Produce Marketing (Regulation) Rules 1967.
The long title of the Act is "An Act to regulate the marketing of agricultural and certain other produce in market areas and markets to be established therefor in the State; to confer powers upon Market Committees to be constituted in connection with or acting for purposes connected with such markets; to establish Market Fund for purposes of the Market Committees and to provide for purposes connected with the matters aforesaid".
2(1)(h) defines "market" as meaning "any principal market established for the purposes of this Act and also a subsidiary market".
2(1)(i) defines "market area" as meaning "an area specified in a declaration made under Sec. 4".
2(1)(o) defines "retail sale" as meaning "in relation to any agricultural produce, sale of that produce not exceeding such quantity as a Market Committee may by bye laws determine to be a retail sale".
2(1)(t) defines "trader" as meaning "a person who buys or sells agricultural produce, as a principal or as duly authorised agent of one or more persons".
3 empowers the Government to declare its intention of regulating the marketing of such agricultural produce, in such area as may be 876 specified in a notification to be published in the official Gazette.
Objections or suggestions which may be received by the State Government within a specified period are to be considered by the State Government.
Thereafter, Sec. 4 provides, the State Government may declare, by another notification that the marketing of the agricultural produce specified in the notification.
The area specified shall be the market area.
5(1) provides that there shall be a principal market for every market area and there may also be one of more subsidiary markets.
Sec 5(2) empowers the Director, by notification, to establish any place in any market area to be the principal market for the marking of agricultural produce specified in the notification.
Subsidiary markets may also be established likewise.
5 is important and it may, therefore, be extracted here: "5(1) For every market area, there shall be established a principal market, and there may be established one or more subsidiary markets.
(2) The Director shall, as soon as possible after the issue of a notification under sub section (1) of section 4, by a notification in the Official Gazette establish any place (including any structure, enclosure, open place or locality) in any market area to be the principal market for the marketing of the agricultural produce specified in that notification; and may by the same notification, or by like notification, establish in any other like places in the market area, subsidiary markets for the marketing of such agricultural produce".
6 provides that, no person shall use any place in the market area for the marketing of the declared agricultural produce or operate in the market area or in any market therein as a trader, commission agent, broker, processor, weighman, measurer, surveyor, warehouseman or in any other capacity in relation to the marketing of the declared agricultural produce, on and after the date on which the declaration under Sec.
4(1) is made, except in conformity with the terms and conditions of a licence granted by the Market Committee or by the Director when a Market Committee has not yet started functioning.
It is important to mention here that Sec.
6(1) is expressly made subject to the rules providing for regulating the marketing of agricultural produce in any place in the market area.
6(2) also provides that Sec.
6(1) shall not apply to sales by retail; sales by an agriculturist who sells his own produce; and sales 877 by a person to another for the latter 's personal consumption.
6 also may be extracted here: "(6) (1) Subject to the provisions of this section and of the rules providing for regulating the marketing of agricultural produce in any place in the market area, no person shall, on and after the date on which the declaration is made under sub section (1) of section 4, without, or otherwise than in conformity with the terms and conditions of, a licence (granted by the Director when a Market Committee has not yet started functioning; and in any other case, by the Market Committee) in this behalf, (a) use any place in the market area for the marketing of the declared agricultural produce, or (b) operate in the market area or in any market therein as a trader, commission agent, broker, processor, weighman, measurer, surveyor, warehouseman or in any other capacity in relation to the marketing of the declared agricultural produce.
(2) Nothing in sub section (1) shall apply to sales by retail; sales by an agriculturist who sells his own produce; nor to sales by a person where he himself, sells to another who buys for his personal consumption or the consumption of any member of his family.
" Sec. 7 empowers the Market Committee, subject to rules made in that behalf and after making such enquiry as it thinks fit to grant or renew a licence for the use of any place in the market area for marketing of the agricultural produce or for operating therein as a trader etc.
The Market Committee may refuse to grant or renew any licence for reasons to be recorded in writing.
Sec. 8 enables the Market Committee to suspend or cancel any licence.
10 makes provision for the constitution of a Board by the Market Committee for the settlement of disputes between buyers and sellers or their agents inclusive of disputes relating to quality, weight, payment etc.
11 provides for the establishment of a Market Committee by the State Government.
Sections 12 and 13 deal with the incorporation and constitution of Market Committees.
13(1A) makes special provision for Greater Bombay and Turbhe village.
The area comprising Greater Bombay and Turbhe village is deemed to be a market area for the purposes of the Act and a Market Committee is constituted with a different composition from other Market Committees.
enumerates the powers and duties of Market Committees.
It is the duty of a Market Committee to implement the provisions of the Act, the rules and bye laws made thereunder in the market area, to provide such facilities for marketing of agricultural produce therein as the Director may from time to time direct and to do such other acts as may be required in relation to the superintendence, direction and control of markets or for regulating marketing of agricultural produce in any place in the market area.
The Market Committee is also empowered to maintain and manage the market, including admissions to, and conditions for use of, markets; to regulate marketing of agricultural produce in the market area of the market; to establish centres for the collection of such agricultural produce in the market area as the State Government may notify from time to time; to collect, maintain, disseminate and supply information in respect of production, sale, storage, processing, prices and movement of agricultural produce (including information relating to crops, statistics and marketing intelligence); to take all possible steps to prevent adulteration; to promote grading and standardization of agricultural produce; and, to enforce the provisions of the Act, rules and bye laws and conditions of licences.
10A enables the Market Committee to open Collection Centres for marketing of notified produce.
Any person wishing to sell any notified produce in a market area may tender such produce at the collection centre.
31 makes it competent to a Market Committee to levy and collect fees from every purchaser of agricultural produce marketed in the market area.
35 enables a Market Committee to employ a Secretary and such other officers and servants as may be necessary for the management of the market, for the collection, maintenance, dissemination and supply of information relating to crops, statistics and marketing intelligence and for carrying out its duties under the Act.
36 provides for the creation of Market Fund and Sec.
37 enumerates the purposes for which the Market Fund may be expended.
Among those purposes are the acquisition of a site or sites for the market, maintenance, development and improvement of the market, construction of, and repairs to buildings necessary for the purposes of such market and the health, convenience and safety of persons using it, maintenance of standard weights and measures, collection and dissemination of information, propaganda for agricultural improvement and orderly marketing etc.
Section 60 makes a contravention of the provisions of Section 6(1) punishable.
Section 60 empowers the State Government to make rules for carrying into effect the purposes of the Act.
Pursuant to the power conferred by Sec.
60 of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963, rules have 879 been made.
Rule 5 prescribes that no person shall market any declared agricultural produce in any place in a market area other than principal market or subsidiary market established therein.
The proviso to Rule 5 enables the Direct of Marketing to authorise a Market Committee to permit a trader or Commission Agent to market declared agricultural produce or to permit any other market functionary to operate at any place within the market area as may be mentioned by the Market Committee in the licence granted to such trader.
This is obviously, a reserve power vested in the Market Committee to be exercised but in exceptional cases, and, on an express authorisation from the Director, subject to the terms and conditions imposed by him.
Rule 6 prescribes the procedure by which any person desiring to use any place in a market area for marketing of any declared agricultural produce or for operating therein as a trader, commission agent or broker may obtain a licence.
He is required to make an application in the prescribed form and submit with the application a solvency certificate, cash security or bank guarantee and a character certificate.
The Director or the Market Committee as the case may be, may grant or renew a licence, after satisfying himself or itself about the solvency certificate, cash security or bank guarantee, the capacity of the applicant for providing adequate equipment for smooth conduct of the business and the conduct of the applicant.
If the licence is refused, reasons are required to be recorded in writing.
Rule 7 deals with the grant of licences to warehousemen, measurers, surveyors, processors, weighmen, etc.
Rule 8(2) bans the employment of a broker in relation to marketing of any declared agricultural produce except in relation to marketing of such produce by a trader with another trader.
Rule 12 stipulates that every declared agricultural produce shall be sold by public auction.
Rule 15 requires every declared agricultural produce to be weighed by licensed weighmen or measurer.
Rule 16, 17 and 18 deal with the preparation of records in connection with the transactions of purchase of declared agricultural produce.
Rule 20 obliges every purchaser of declared agricultural produce to make payment to the seller or his commission agent immediately after the sale on the same day.
Rule 21 prohibits the adulteration of declared agricultural produce in the market area or market.
Rule 22 provides for grading and standardization of agricultural produce.
Rule 25 provides for inspection of weights and measures.
Rule 27 requires the Market Committee to publish a daily list of prices of the different varieties and grades of declared agricultural produce marketed in the market area.
There are several other rules providing for the constitution of Market Committees, preparation of their budgets, discharge of their other duties etc., but for our purpose it may not be necessary to refer to them.
880 We have seen that Sec.
5 authorises the establishment of a principal market and one or more subsidiary markets.
Quite obviously the power to establish a principal market or a subsidiary market carries with it the power to disestablish (if such an expression may be used) such market.
Quite obviously again, the power given by Sec. 5 to establish a principal or subsidiary market may be exercised from time to time.
These follow from Sections 14 and 21 of the Maharashtra General Clauses Act.
So, Sec.
5 of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963, read with Sections 14 and 21 of the Maharashtra General Clauses Act vest enough power in the Director to close an existing market and establish it elsewhere.
4A(2) of the Bombay Agricultural Produce Markets Act, 1939, (the Act which preceded the Maharashtra Agricultural Produce Marketing Regulation) Act, empowered the State Government to declare any enclosure, building or locality in any market area to be a principal market yard for the area and other enclosures, buildings or localities to be one or more sub market yards for the area.
There was a proviso to Sec.
4A(2) which provided that out of the enclosures, buildings or localities declared to be market yards before the commencement of the Bombay Agricultural Produce Markets (Amendment) Act 1954, one shall be declared to be the principal market yard for the market area and others, if any, to be one or more sub market yards for the area Before the 1954 amendment Act Vakhar Bagh was the market yard for a certain market area.
In October 1954, (after the 1954 amendment came into force) Vakhar Bagh was declared as the principal market yard for the market area under the proviso to section 4A(2) of the Act.
A few days later another notification was issued declaring some other place as the principal market yard for the market area.
Vakhar Bagh was not even declared as a sub market yard.
The effect was that Vakhar Bagh Market Yard ceased to be a market yard.
This was questioned in Bapubhai Ratanchand Shah vs The State of Bombay.
The argument was that Vakhar Bagh had necessarily to be declared as a Principal Market Yard since there was no sub market yard under the proviso to Sec.
4A(2) and that once having been so declared another market yard could not be substituted in its place.
This argument was repelled by Chagla, C. J. and Tendolkar, J.
It was observed (at p. 903, 904): "Now, section 4A(2) confers upon the Government the power to declare any enclosure, building or locality in any market area to be a principal market yard for the area and other enclosures, buildings or localities to be one or more sub 881 market yards for the area.
It is clear that by reason of section 14 of the General Clauses Act any power that is conferred on Government can be exercised from time to time as occasion requires.
Therefore, it would be clearly competent to the State Government to declare from time to time which should be the principal market yard and which should be sub market yards.
It is also clear under section 21 of the General Clauses Act that when a power to issue notifications, orders, rules, or bye laws is conferred, then that power includes a power to exercise in the like manner and subject to the like sanction and conditions, if any, to add to, amend, vary or rescind any notifications, orders, rules or bye laws so issued". . . . . "under section 4A(2) Government can by issuing notifications from time to time after the principal market yards which have been set up and which did not exist before the passing of the Amending Act".
We agree.
Any other construction may frustrate the very object of the legislation.
Nothing may be expected to remain static in this changing world of ours.
A market which is suitably and conveniently located today may be found to be unsuitable and Inconvenient tomorrow on account of the development of the area in another direction or the congestion which may have reduced the market into an Impossible, squalid place or for a variety of other reasons.
To so interpret the provisions of the Agricultural Produce Marketing Regulation Act as prohibit the abolition of a market once established and bar the transfer of the market to another place would, as we said, be to defeat the very object of the Act.
Neither the text nor the context of the relevant provisions of the Act warrant such a prohibition and bar and there is no reason to imply any such.
On the other hand Sections 14 and 21 of the Maharashtra General Clauses Act warrant our reading into Sec. 5 a power to close a market and establish it elsewhere.
The submission that Rule 5 of the Maharashtra Agricultural Produce Marketing Regulation Rules 1967 which provides that no person shall market any declared agricultural produce in any place in a market area other than the principal market or subsidiary market established therein is ultra vires, is, in our opinion, equally without force.
60 of the Act empowers the State Government to make rules for carrying into effect the purposes of the Act.
It cannot but be said that the establishment of a principal and subsidiary markets for the marketing of declared agricultural produce and the bar against marketing operations being carried on elsewhere than in the markets so 882 established is only to further and to give effect to the purposes of the Act.
The scheme of the Act shows that the agricultural produce whose marketing is proposed to be regulated should first be notified, a market area has to be declared in respect of the notified agricultural produce, a Market Committee has to be constituted for the market area, a principal market and one or more subsidiary markets have to be established for every market area, traders etc.
have to be licensed and the Market Committee is required to provide facilities for marketing of agricultural produce, to superintend, direct and control the markets and regulate marketing of agricultural produce.
Regulation of marketing of notified agricultural produce and the establishment of principal and subsidiary markets are among the prime objects of the Act.
If for the more effective regulation of marketing it is thought that all marketing operations in respect of declared agricultural produce should be carried on only in the principal and subsidiary markets established under the Act, we do not see how it can possibly be said that a rule made for that purpose is beyond the competence of the rule making authority under the Act.
It is not difficult to visualise the impossibility of effective regulation if marketing operations are allowed to be carried on outside the principal and subsidiary markets, anywhere in the market area.
The submission was that all the regulatory measures contemplated by the Act and the rules may be enforced equally effectively wherever business in agricultural produce is carried on in the market area outside the principal and subsidiary markets as within the principal and subsidiary markets.
On the face of it, it is difficult to accept this submission.
The regulation will become impossible and will soon be reduced to a farce if traders are allowed to carry on marketing operations in every nook and corner of the market area.
The Market Committee will be forced to employ an unduly large number of officers who will have to run hither and thither, all over the market area.
The regulation and control will soon become unmanageable.
Nor will the producers ' interests be properly served.
Where a producer brings his produce to the market, he will deal face to face not with one but with several traders, with a greater chance of getting the best price for his produce.
This cannot happen if he is persuaded to take his produce to the place of business of an individual trader outside the principal or subsidiary market.
There is a greater possibility of abuse and greater likelihood of the object of the Act being frustrated.
Fair price to the agriculturist will soon be a mirage and the evil sought to be prevented will persist.
In Kewal Krishan Puri & Anr.
vs State of Punjab & Ors.(1) this Court had occasion to observe: 883 "No body can be allowed to establish a purchasing centre of his own at any place he likes in the market area without there being such a permission or authority from the Market Committee.
After all the whole object of the Act is the supervision and control of the transactions of purchase by the traders from the agriculturists in order to prevent exploitation of the latter by the former.
The supervision and control can be effective only in specified localities and places and not throughout the extensive market area.
" One of the submissions of the learned Counsel was that Section 6 of the Act contemplated the use of any place in the market area for the marketing of the declared agricultural produce on obtaining a licence from the Market Committee and, therefore, Rule 5 which banned marketing at any place outside the principal and subsidiary markets though such place was within the market area was inconsistent with Section 6 and hence ultra vires.
The submission ignores the circumstance that Section 6 is applicable to both the situations before and after the establishments of markets.
Where a market area is specified under Sec. 4 of the Act but no markets are yet established, marketing is regulated by licensing the traders etc.
under Sec. 6.
After markets are established also, traders have to be licensed under Sec. 6.
But Sec. 6 is expressly declared to be subject to the rules providing for regulating the marketing of agricultural produce in any place in the market area.
Rule 5 is a rule providing for regulating the marketing of agricultural produce in the market area by stipulating that the marketing shall be carried in the market established in the market area.
Section 6 is, therefore, subject to Rule 5.
There can be no question of any inconsistency between Section 6 and Rule 5.
Yet another submission of the learned counsel was that the Bombay Agricultural Produce Markets Act 1939 and the Agricultural Produce Marketing Acts of other States such as Karnataka provided or indicated by express provision that once a market was established it was not permissible to market or trade in agricultural produce outside the market, and that the absence of such an express provision in the Maharashtra Act showed that no such ban was contemplated by the Act.
We are unable to agree with the submission.
Absence of an express provision in the Act itself merely means that greater latitude is given to the rule making authority to introduce regulation of marketing by stages and to ban all marketing activity outside the market.
The latitude given to the rule making authority cannot lead to the 884 inference that the rule making authority has no power to make a rule banning marketing activities outside the market once the market is established, even when such a ban is found to be necessary.
We therefore, hold that the rule prescribing that no marketing operation in any declared agricultural produce shall be carried on outside the principal or subsidiary markets is consistent and in consonance with the scheme of the Act and is within the competence of the rule making authority and that it is reasonable.
Next we pass on to the main submission made on behalf of the petitioners that the transactions between trader and trader and transactions by which the agricultural produce was imported into the market area from outside the market area were outside the purview of the Act and that if Sec. 5 and Rule 5 were intended to cover such transactions also they were invalid.
The basic assumption of the submission was that the Maharashtra Agricultural Produce Marketing Regulation Act was conceived in the interests of the agriculturists only and intended for their sole benefit.
This basic assumption is not well founded.
It is true that one of the principal objects sought to be achieved by the Act is the securing of a fair price to the agriculturist.
As the long title of the Act itself says, the Act is intended to regulate the marketing of agricultural and certain other produce.
The marketing of agricultural produce is not confined to the first transaction of sale by the producer to the trader but must necessarily include all subsequent transactions in the course of the movement of the commodity into the ultimate hands of the consumer, so long, of course, as the commodity retains its original character as agricultural produce.
While middlemen are sought to be eliminated, it is wrong to view the Act as one aimed at legitimate and genuine traders.
Far from it.
The regulation and control is as much for their benefit as it is for the benefit of the producer and the ultimate consumer.
The elimination of middlemen is as much in the interest of the trader as it is in the interest of the producer.
Promotion of grading and standardization of agricultural produce is as much to his benefit as to the benefit of the producer or consumer.
So also proper weighment.
The provision for settlement of disputes arising out of transactions connected with the marketing of agricultural produce and ancillary matters is also for the benefit of the trader.
It is because of these and various other services performed by the Market Committee for the benefit of the trader that the trader is required to pay a fee.
It is, therefore, clear 885 that the regulation of marketing contemplated by the Act involves benefits to traders too in a large way.
It is also clear to our mind that the regulation of marketing of agricultural produce, if confined to the sales by producers within the market area to traders, will very soon lead to its circumvention in the guise of sales by traders to traders or import of agricultural produce from outside the market area to within the market area.
The Shirname Committee which was appointed by the Maharashtra Government to review the working of the Bombay Agricultural Produce Marketing Act, 1939 considered the matter and reported as follows: (para 86): "They (the traders) have argued that imported produce has nothing to do with the legislation meant to confer benefits on the agriculturist.
We are afraid that this view is untenable.
In our opinion, the benefits sought to be conferred by the Act are not compartmental inasmuch as a regulated market seeks to benefit the agriculturist within its area only.
The problem of regulation is to be viewed in the wider context.
This was well emphasised by the Royal Commission on Agriculture which stated that 'the establishment of properly regulated markets can act as a powerful agent in bringing about a reform which is much needed, primarily in the interest of the cultivator, and secondly, in that of all engaged in trade and commerce in India '.
It is in this larger perspective that an answer to the question is to be found.
Moreover, no agricultural produce goes by a particular brand with the result that the produce brought from a particular source cannot be distinguished from the one secured from the other.
If the produce imported from outside the market area were to be exempted from the scope of the market regulation, it would only provide an additional opportunity for the traders to circumvent the provisions of the Act and Rules even in respect of the agricultural commodities produced within the market area.
We, therefore, recommend that once a commodity is regulated in a market, it should be subjected to regulation irrespective of its source or final destination.
" Again they said in paragraph 95 as follows: "We wish to record here that there appears to be a doubt among the traders as well as the Market Committees about the precise position of sales of commodities after they are brought from agriculturists by traders vis a vis the provisions of the Act and the Rules.
It has been the belief of 886 the traders that the law is for the benefit of agriculturists and on this ground they have pleaded that its scope should be restricted only to the dealings with them.
We are afraid that this plea is not tenable.
The benefit of a regulated market will no doubt primarily accrue to the agriculturists but traders also will be profited by it.
Furthermore, no market can be regulated effectively unless and until the regulation covers all the stages of marketing within a particular area.
Above all, it is not possible to distinguish between the agricultural produce subjected to resale or changing hands between the traders themselves and the one sold by the agriculturists through the commission agents to the traders.
We, therefore, recommend that all transactions including the resales between the traders and traders in respect of the agricultural commodities, which are regulated should be covered by the Act and the Rules.
Thus in a regulated market, trading in agricultural commodities irrespective of the fact as to whether they are produced in the market area or sold by the agriculturists or not, will be brought within the scope of the legislation.
" Nor are we without any guidance from this Court itself in answering the question posed.
In Mohammadbhai Khudabux Chhippa & Anr.
vs The State of Gujarat & Anr., it was pointed out while dealing with the provisions of the Bombay Agricultural Produce Markets Act, 1939, as follows (at p. 899): "Next it is urged that the provisions in the Act also affect transaction between traders and traders, and also affect produce not grown within the market area if it is sold in the market area.
That is undoubtedly so.
But if control has to be effective in the interest of the agricultural producer such incidental control of produce grown outside the market area and brought into the market yard for sale is necessary as otherwise the provisions of the Act would be evaded by alleging that the particular produce sold in the market yard was not grown in the market area.
For the same reasons transactions between traders and traders have to be controlled, if the control in the interest of agricultural producers and the general public has to be effective.
We are therefore of opinion that the Act and the Rules and Bye laws thereunder cannot be struck down 887 on this ground.
The contention under this head therefore must fail".
Again in Ram Chandra Kailash Kumar & Co. & Ors.
vs State of U.P. & Anr.
,(1) dealing with the contention that fee could be charged only on those transactions in which the seller was the producer and not on any other transaction this Court disapproved the view taken by the Mysore High Court and approved the view taken by the Patna High Court that fee could be levied on a transaction of buying and selling between a dealer and a dealer.
Dealing with the contention that the agricultural produce not produced in the market area was outside the purview of the Act, it was observed (at p. 1134): "It is also not correct to say that the agricultural produce must have been produced in the market area in which the first levy is made.
It might have been produced in another market area or even outside the State of Uttar Pradesh but if a transaction of sale and purchase takes place of an agricultural produce as defined in the Act and covered by the notification within a particular market area then fee can be charged in relation to the said transaction".
One of the submissions strenuously pressed before us was that the statute itself imposed and provided for such stringent supervision, and control, sufficient and more, to regulate transactions between traders and traders, that it was superfluous to insist that such transactions do take place in the market only.
We do not agree.
Human ingenuity is such that vents and escapes will always be found in any system of controls.
We are unable to say that the other supervisory measures for which there is provision in the Act are sufficient to make it unnecessary for the traders to move their places of business into the market.
No amount of supervision may be as effective as when all the transactions take place within the market.
Nor is effective supervision at all possible if traders are dispersed all over the market area.
Every Market Committee will then require a large contingent of officers for the purpose of supervision only.
The rendering of services to the traders also will be far easier and, in the ultimate analysis, it will be in the interests of the traders themselves, at any rate in the interests of the vast majority of the traders, that transactions between traders and traders also are carried on in the market only.
There cannot be any doubt 888 that localising marketing is helpful and necessary for regulation and control and for providing facilities.
If all transactions are carried on in the market under the watchful and at the same time, helpful vigil of the Market Committee and its officers, there is surely a greater chance of the success of the objectives of the statute.
We are therefore, not prepared to hold that the requirement that the locus of all transactions of sale and purchase of agricultural produce, including those between trader and trader, should be in the market is harsh and an excessive restriction on the Fundamental Right to carry on trade.
It was the submission of the learned counsel that Sec. 6 of the Maharashtra Act made a distinction between (a) the use of any place in the market area for the marketing of the declared agricultural produce and (b) the operation in the market area or in any market therein as a trader, commission agent, broker, etc.
in relation to the marketing of agricultural produce and that the distinction was in reality a distinction between a sale by a producer to a trader and a subsequent sale by a trader to a trader.
The argument was that Rule 5 which banned marketing of any declared market agricultural produce in any place in a market area other than the principal market or subsidiary market established therein applied only to a sale of the agricultural produce by a producer to trade.
We do not see any warrant for the submission of the learned counsel in the language employed in Sec. 6 or Rule 5.
If the legislature or the rule making authority wanted to make a distinction between a sale of agricultural produce by a producer to a trader and a subsequent sale by a trader to a trader, nothing would have been simpler than to say so instead of adopting the circumlocutous way in which the learned counsel claims it has been said.
The proviso to Rule 5 speaks of operating at any place within the market area by a trader, commission agent, or other market functionary after obtaining a licence while the main provision refers to the marketing of declared agricultural produce at any place in the market area.
Surely it cannot be contended that the proviso is unrelated to the main provision.
According to ordinary cannons of construction the proper function of a proviso is to except and deal with a case which would otherwise full within the general language of the main enactment.
It, therefore, shows that no such distinction as suggested by the learned counsel for the petitioners was in the mind of the legislature or the rule making authority.
The onion and potato merchants of Bombay advanced a special plea that Sec.
13(1A) which declared the area comprising Greater 889 Bombay and Turbhe village a market area for the purposes of the Act was invalid as it was wholly unreasonable to constitute such a large area into a single market area.
The validity of the notification establishing a market at Turbhe was attacked as unreasonable.
It was said that it was unreal and unreasonable to establish a single market for so large an area and that, at such an inconvenient place as Turbhe village.
It has been explained in the counter affidavit filed on behalf of the respondent that the existing markets in Maulana Azad Road and Mahatma Phule Mandal were highly congested and located in areas which were over crowded with the result that it took several hours to even unload onions and potatoes from the trucks which carried them.
It has become imperative in the public interest that the markets should be shifted from Maulana Azad Road and Mahatma Phule Mandai.
Turbhe village was chosen as an area free from congestion and conveniently located as it was on the main trunk road from Pune.
It was also very near the other trunk Road going towards the East.
A Railway linking the area with both the Western Railway and the Central Railway net works was fast coming up.
It was also pointed out that 60% of the population of Greater Bombay resided in the Northern suburbs and the new market was much nearer to the majority of the residents and traders of Greater Bombay.
We are unable to see anything unreasonable in the statutory declaration of Greater Bombay and Turbhe village as a market area; nor, are we able to see anything unreasonable, in view of the circumstances mentioned by the respondents, in the establishment of a single market in Turbhe village for the entire market area.
It was also said that neither the Gultekdi market nor the Turbhe market had any convenience or facility or was ready for use on the date on which it was notified as the Principal Market for the concerned market area.
On the material placed before us we are satisfied that all reasonable conveniences and facilities are now available in both the markets, whatever night have been the situation on the respective dates of notification.
We refrain for embarking into an enquiry as to the situation obtaining on the dates of notification.
We do say that a place ought not to be notified as a market unless it is ready for use as a market with all reasonable facilities and conveniences but we do not conceive it to be our duty to pursue the matter to the extreme limit of quashing the notification when we find that all reasonable facilities and conveniences are now available.
While a notification may be quashed if nothing has been done beyond publishing the notification, in cases where some facilities and conveniences 890 have been provided but not some others which are necessary the Court may instead of quashing the notification give appropriate time bound directions for providing necessary facilities and conveniences.
On the facts of the present case, we are satisfied that all reasonable facilities and conveniences are now provided.
We are also satisfied that the traders have been making one desperate attempt after another to avoid moving into the new markets and they have been successful in stalling the notifications from becoming effective for quite a number of years.
In the Writ Petitions and Civil Appeals from Karnataka State, similar questions have been raised.
Though the broad scheme of the Karnataka Act is the same as the Maharashtra Act, there are some differences which however are not basic.
Instead of a two tier scheme, Market Area and Markets, as under the Maharashtra Act, the Karnataka Act has a three tier scheme, Market Area, Market and sub market and market yard, sub market yard and sub yard.
Market Area is a larger area within which smaller areas are declared as a Market and sub markets.
Within a market are located a market yard and market sub yards and within a sub market is located a sub market yard.
The 'market yard ' in the Karnataka Act is what corresponds to a 'market ' in the Maharashtra Act.
Unlike the Maharashtra Act, the Karnatka Act itself [section 8(2)] expressly provides that no place in the Market or the sub market, except the market yard, sub yard or the sub market yard as the case may be, shall be used for the purchase or sale of notified agricultural produce.
Originally, after the words "purchase or sale of notified agricultural words" occurred the words "belonging to a producer" in Section 8(2).
The words "belonging to a producer" were omitted by a 1976 amendment and this makes the provisions of section 8(2) applicable to transactions between trader and trader too.
The shifting of market yard from one place to another and the application of the Act to transactions between traders and traders are what were principally questioned in the Karnataka cases.
Substantially the same submissions as in the Maharashtra cases were made and we have already dealt with them.
We my now turn to the Bihar cases.
The Bihar Agricultural Produce Markets Act, 1960, follows roughly the same pattern as the other Acts.
A market area has to be first declared within which the marketing of specified agricultural produce is proposed to be regulated.
For every market area there is to be a principal market yard and one or more sub market yards.
In between the market area and the market yard there is to be a market but market does not seem to play any part in the scheme of the Act as it now stands after the 1974 amendments.
However it should be mentioned here that Rule 80 891 which is still on the Statute Book, provides that a market shall be established for a market area and that after the establishment of a market, a notification under Sec. 5 (declaring market yards) shall be issued.
15 of the Act provides that no specified agricultural produce shall be bought or sold at any place within the market area other than the principal market yard or sub market yard established therein except such quantity as may be prescribed for retail sale or personal consumption.
The arguments advanced in the Maharashtra and Karnataka cases were advanced in the Bihar cases also.
For the reasons already mentioned we reject the submission.
In one of the Bihar cases it was further submitted that when a market yard was disestablished at one place and established at another place, it was the duty of the concerned authority to invite and hear objections.
Failure to do so was a violation of the principles of natural justice and the notification disestablishing the market yard at one place and establishing it elsewhere was therefore, bad.
It was said that even as there was express provision for inviting and hearing objections before a "market area" was declared under the Act, so should objections be invited and heard before a 'market yard ' was established at any particular place.
The principles of nature justice demanded it.
We are unable to agree.
We are here not concerned with the exercise of a judicial or quasi judicial function where the very nature of the function involves the application of the rules of natural justice, or of an administrative function affecting the rights of persons, wherefore, a duty to act fairly.
We are concerned with legislative activity; we are concerned with the making of a legislative instrument, the declaration by notification of the Government that a certain place shall be a principal market yard for a market area, upon which declaration certain statutory provisions at once spring into action and certain consequences prescribed by statute follow forthwith.
The making of the declaration, in the context, is certainly an act legislative in character and does not oblige the observance of the rules of natural justice.
In Bates vs Lord Hailsham, Megarry J., pointed out that the rules of natural justice do not run in the sphere of legislation, primary or delegated, and in Tulsipur Sugar Co. vs Notified Area Committee, our brothers Desai and Venkataramaiah JJ approved what was said by Megarry J., and applied it to the field of conditional legislation too.
In Paul Jackson 's Natural Justice (Second Edn.), it has been pointed out (at p.169): "There is no doubt that a Minister, or any other body, in making legislation, for example, by statutory instrument 892 or by law, is not subject to the rules of natural justice Bates vs Lord Hailsham of St. Mayleborne more than is Parliament itself; Edinburgh and Dalkeith Ry.
vs Wauchope (1842) 8 Cl. & F. 710, 720 per Lord Brougham; British Railways Board vs Pickin ; Prof. H. W. R. Wade has similarly pointed in his Administrative Law (4th Edn.): "There is no right to be heard before the making of legislation, whether primary or delegated, unless it is provided by statutes".
There is, therefore, no substance in the invocation of the rules of natural justice.
One of the submissions in the Bihar cases was that the declaration of places as market yards was made in such an erratic fashion that the exercise of the power could only be termed as an arbitrary misuse of power.
The facts in Civil Appeal No. 1507 of 1980 were that on September 16, 1964, a certain area was declared as a principal market yard and Amgola, Chandwara, Sarai Said Ali and Brahmpura were declared as Sub market yards.
On February 23, 1978 instead of the principal market yard declared by the notification of September 16, 1964, Muradpur Dulla was declared as principal market yard.
The sub market yards were abolished.
By another notification dated April 9, 1979, all the market yards notified on September 16, 1964 were allowed to continue as before, but it was also simultaneously made known that such market yards would be closed on specified dates and merchants were advised to move their business into the Muradpur Dulla principal market yard as early as possible.
Finally by a notification dated July 3, 1979, the previous notification dated April 9, 1979 was cancelled and Muradpur Dulla market yard was alone notified as the principal market yard.
The facts in the other two appeals were that on September 19, 1963, Gaya town was declared as a market area.
On April 6, 1964, Chandauti was declared as the market proper under Sec.5(2)(ii) of the Bihar Act.
By a notification dated April 7, 1964, Mohalla Purani Godown was declared as principal market yard and Kedarnath Market was declared as the sub market yard for the market area.
On October 19, 1973, Mohalla Purani Godown was once again declared as the Principal Market Yard.
Subsequently on February 28, 1978, Chandauti was declared as the Principal Market Yard.
This meant that Mohalla Purani Godown ceased to be a market yard and Kedarnath Market ceased to be a sub market yard.
But, again on April 9, 1979, another notification was issued, to the effect that Mohalla Purani Godown would continue as the market yard as before.
Finally on June 27, 1979, Chandauti was 893 declared as the Principal Market yard once more.
This was questioned in Writ Petitions filed in the Patna High Court.
The Patna High Court rejected all but one of the contentions raised.
The only contention which was accepted was that the procedure prescribed by Rule 80 was not followed before Chandauti was declared as the principal market yard by the notification dated February 28, 1978.
Rule 80, as already mentioned by us provides that a market shall be established for a market area and that after the establishment of a market a notification declaring the market yard shall be issued.
The contention which was accepted was that a market had not been established before a market yard was declared.
Against the judgment of the High Court the merchants have filed Civil Appeal No. 1715 of 1980 and the State of Bihar has filed Civil Appeal No. 36 of 1980.
Not withstanding the filing of the appeal, the State of Bihar chose to issue a fresh notification after observing the procedure prescribed by Rule 80.
This was again questioned in the High Court.
The High Court upheld the notification.
The merchants have preferred Civil Appeal No. 1716 of 1980 against the judgment of the High Court.
From the history of events it may appear as if declarations regarding market yards have been made in a most erratic fashion but as pointed out by the learned Attorney General who appeared for the State of Bihar it was not madness.
There was a method.
The old markets had existed from ancient days and it had become necessary to establish modern market yards with conveniences and facilities.
When this was sought to be done there were representations by the traders and the Government appears to have thought that it was advisable to give the traders sufficient time to enable them to prepare themselves to move into the new market yards.
The notifications establishing new market yards were therefore, cancelled and the old markets were allowed to function for some time.
Later when the time was thought to be ripe, notifications establishing new market yards were once again issued.
It is, therefore seen that the seeming confusion was not the result of any arbitrary or erratic action on the part of the Government but was the result of a desire to accommodate the traders as much as possible.
We, therefore, see no force in any of the submissions made on behalf of the petitioners.
All the Writ Petitions and Civil Appeals are therefore, dismissed with costs.
N.V.K. Petitions and Appeals dismissed.
| The Mines and Minerals (Regulation & Development) Act, 1957 (Central Act) was enacted in the public interest to enable the Union to take under its control the regulation of mines and the development of minerals.
Exercising its power under this Act, the Central Government declared by a notification that black granite was a minor mineral.
Exercising power vested in it by section 15 of the Act, the State Government made the Tamil Nadu Minor Mineral Concession Rules, 1959.
Rule 8 of the Rules prescribes the procedure for lease of quarries to private persons.
By rule 8 C, introduced in 1977, leases for quarrying black granite in favour of private persons were banned.
Sub rule (2) of this rule enacts that the State Government themselves may engage in quarrying black granite or grant leases for quarrying black granite in favour of any corporation wholly owned by the State Government.
Several applications for the grant of fresh leases as well as for the renewal of leases for quarrying black granite belonging to the State Government were submitted to the State Government, some prior to the introduction of rule 8C and some after the rule came into force.
The State Government considered all the applications and rejected all of them in view of rule 8C.
The respondents filed writ petition questioning the vires of Rule 8 C on various grounds.
The High Court struck down Rule 8 C on the ground that it exceeded the rule making power given to the State Government and held that it was not open to the appellant Government to keep the applications pending for a long time and then to dispose them of on the basis of a rule which had come into force later.
As a result all the applications were disposed of without reference to rule 8 C.
The appellant contended that: (I) The approach of the High Court was vitiated by its failure to notice the crucial circumstance that the minerals belonged to the Government, (II) The respondents had no vested or indefeasible right to obtain a lease or a renewal to quarry the minerals, (III) There were good reasons for banning the grant of lease to quarry black granite to private parties and (IV) The Government could not be compelled to grant leases which would result in the destruction of the mineral resources of the country.
On behalf of the respondent it was submitted that (I) the question of ownership of the minerals was irrelevant, (II) It was not open to the appellant 743 to exercise its subordinate legislative function in a manner to benefit itself as owner of the minerals, nor was it open to the appellant to create monopoly by such means, (III) There was violation of articles 301 and 303 of the Constitution, (IV) Rule 8 C had no application to renewals and (V) That in any event it would not have the effect of affecting applications made more than 60 days before it came into force.
Accepting the appeals, it was ^ HELD: Rule 8 C was made in bonafide exercise of the rule making power of the Appellant Government and not in its misuse to advance its own self interest.
Making a rule which is perfectly in order is not to be considered a misuse of the rule making power, if it advances the interest of State, which really means the people of the State.
Rivers, forests, minerals and as such other resources constitute a nation 's natural wealth.
These resources are not to be frittered away and exhausted by any one generation.
Every generation owes a duty to all succeeding generations to develop & conserve the natural resources of the nation in the best possible way.
It is in the interest of mankind.
It is in the interest of the Nation.
It is recognised by Parliament.
Parliament has declared that it is expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals.
[751C D, 753G H] 2.
The Public interest which induced Parliament to make the declaration contained in S.2 of the Mines & Minerals (Regulation and Development) Act, 1957 has naturally to be the paramount consideration in all matters concerning the regulation of Mines & Minerals.
Parliament 's Policy is clearly discernible from the provisions of the Act.
It is the conservation and the prudent and discriminating exploitation of minerals, with a view to secure maximum benefit to the community.
There are clear sign posts to lead and guide the subordinate legislating authority in the matter of the making of rules.
[751G H] 3.
The other provisions of the Act, particularly sections 4A, 17 and 18, indicate that the rule making authority under S.15 has not exceeded its powers in banning leases for carrying black granite in favour of private parties and in stipulating that the State Government themselves may engage in quarrying black granite or grant leases for quarrying black granite in favour of any corporation wholly owned by the State Government.
To view such a rule made by the Subordinate legislating body as a rule made to benefit itself merely because the State Government happens to be the subordinate legislating body is, but, to take too narrow a view of the functions of that body.
[751H, 752A B] H. C. Narayanappa & Ors.
vs State of Mysore & Ors.
; @ 745, 752 753 referred to.
Whenever there is a switch over from 'private sector ' to 'public sector ' it does not necessarily follow that a change of policy requiring express legislative sanction is involved.
It depends on the subject and the statute.
But if a decision is taken to ban private mining of a single minor mineral for the purpose of conserving it, such a ban, if it is otherwise within the bounds of the authority given to the Government by the Statute, cannot be said to involve any change of policy.
The policy of the Act remains the same and it is, the conservation and the prudent and discriminating exploitation of 744 minerals, with a view to secure maximum benefit to the community.
Exploitation of minerals by the private and/or the public sector is contemplated.
If in the pursuit of the avowed policy of the Act, it is thought exploitation by the public sector is best and wisest in the case of a particular mineral and, in consequence, the authority competent to make the subordinate legislation makes a rule banning private exploitation of such mineral, which was hitherto permitted.
There is no change of policy merely because that was previously permitted is no longer permitted.
[756A D] Municipal Corporation of the City of Toronto vs Virgo , Attorney General for Ontario vs Attorney General for the Dominion and the Distillers and Brewers Association, , State of Uttar Pradesh and Others vs Hindustan Aluminium Corporation Ltd. and Ors., ; , G. K. Krishnan etc.
vs The State of Tamil Nadu and Anr. etc.
[1975] 2 SCR 715 @ 721, Commonwealth of Australia vs Bank of New South Wales referred to.
The restrictions, freedom from which is guaranteed by article 301 would be such restrictions as directly and immediately restrict or impede the free flow or movement of trade.
The Act and the rules properly made thereunder are, therefore, outside the purview of article 301.
Even otherwise article 302 which enables Parliament, by law, to impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest also furnishes an answer to the claim based on the alleged contravention of article 301.
[757F H, 758A B] 7.
The Mines and Minerals (Regulation and Development) Act is a law enacted by Parliament and declared by Parliament to be expedient in the public interest.
Rule 8 C has been made by the appellant Govt.
by notification in the official Gazette, pursuant to the power conferred upon it by sec.
15 of the Act.
A statutory rule, while ever subordinate to the parent statute, is, otherwise, to be treated as part of the statute and as effective. "Rules made under the Statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the act and are to be judicially noticed for all purposes of construction or obligation.
[758B G] Atiabari Tea Co. Ltd. vs State of Assam & Ors. ; The Automobile Transport Rajasthan Ltd., vs State of Rajasthan & Ors.
[1963] 1 SCR 491 and State of U.P. & Ors.
vs Babu Ram Upadhya ; , referred to.
Rule 9 makes it clear that a renewal is not to be obtained automatically, for the mere asking.
The applicant for the renewal has, particularly, to satisfy the Government that the renewal is in the interests of mineral development and that the lease amount is reasonable in the circumstances of the case.
These conditions have to be fulfilled in addition to whatever criteria is applicable at the time of the grant of lease in the first instance, suitably adapted, of course, to grant of renewal.
Not to apply the criteria applicable in the first instance may lead to absurd results.
Therefore rule 8 C is attracted in considering applications for renewal of leases also.
[759A D] 9.
While the applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed 745 of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application.
No one has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a particular way, by applying particular provisions.
In the absence of any vested rights in any one, an application for a lease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application.
[759G H, 760A] 10.
The language of Rule 8 C is clear that it can not have any application to lands in which the right to minerals belongs to the applicants themselves.
In the case of lands in which the right to minerals belongs to private owners and those owners seek permission to quarry black granite the applications will have to be dealt with under the relevant rules in Sec.
III of the Tamil Nadu Minor Mineral concession Rules.
Rule 8 C does not impose a general ban on quarrying black granite but only imposes a bar on the grant of leases for quarrying black granite.
[760D F]
|
Appeal No. 1641 of 1966.
Appeal from the judgment and decree dated March 10, 11, 1965 of the Bombay High Court in Appeal No. 26 of 1958 from Original Decree.
L10Sup Cl (NP)/70 14 922 L. M. Singhvi and B. D. Sharma, for the appellant.
H. R. Gokhale, Y. section Chitale, Janendra Lal and B. R. Agarwala, for respondent No. 1.
The Judgment of the Court was delivered by Bhargava, J.
The Union of India, as the owner of the Central Railway, instituted a suit for refund of Rs. 2,76,967/ collected as tax from the Railway Administration by the respondent Municipality during the period from 1931 till the institution of the suit in November, 1954.
The facts leading up to the suit are that the G.I.P. Railway, which was a Private Company, had land situated within the limits of the respondent Municipality.
On this land, stood the railway station, their Water Reservoir at Bhusi, bungalows of Officers, and certain other buildings.
There were also vacant lands and some lands on which railway lines were laid out.
In this area, which belonged to the G.I.P. Railway, the Railway Company itself built roads, supplied water from its Bhusi Reservoir, arranged for the lighting, and provided other services.
In fact, up to the year 1916, the Railway used to supply water even to the Municipality from its Bhusi Reservoir on payment.
The Municipality was governed, at that time, by the Bombay District Municipal Act No. 3 of 1901 (hereinafter referred to as "the Act of 1901") under which a tax on lands and buildings situated within the municipal limits used to be charged @ 4 per cent of the annual rental value, but no tax was levied on the buildings and lands of the G.I.P. Railway in view of section 135 of the Indian Railways Act No. 9 of 1890.
In the year 1914, the Government of India issued a notification under section 135 of the Railways Act declaring that the Administration of the G.I.P. Railway shall be liable to pay, in aid of the funds of the local authorities set out in the Schedule, the taxes specified against each of those authorities.
Against the 'lame of Lonavla Municipality, which is the respondent in this case, the tax mentioned was house tax.
Thus, the exemption granted to the Railway Administration was taken away by this notification in respect of house tax and house tax became payable by the G.I.P. Railway to the respondent.
In 1916, the respondent constructed its own water reservoir and became independent of the Railway for water supply, but no water rate was charged from the Railway even thereafter, though water charges for actual quantities of water supplied in three of the bungalows was charged from the occupants of the bungalows.
The rest of the Railway Colony continued to be supplied with water from the Railway Reservoir at Bhusi.
On 4th May 1916, the respondent promulgated new rules for taxation and, instead of charging separate house tax and water rate it decided to charge a consolidated tax assessed as a rate on 923, buildings and lands in accordance with clause (c) of the proviso to section 59(1) of the Act of 1901.
Thereafter, it appears that the respondent demanded this consolidated tax from the Railway in respect of the Railway lands and buildings.
The Railway felt that, since, under the notification of 1914, house tax only was payable by the Railway Administration, there was no justification for the respondent to charge consolidated tax from it and, consequently, protested against this payment.
Thereafter, on 26th July, 1917, the Government of India issued a fresh notification tinder section 135 of the Railways Act, whereby the Railway Administration was rendered liable to pay what was described as "tax on lands and buildings".
On the issue of this notification, the respondent started charging the G.I.P. Railway this consolidated tax and this continued until some time in the year 1927 by which time the G.I.P. Railway was taken over by the Government and became a Government undertaking.
In the Rules promulgated on 4th May, 1916, the consolidated tax described as a general rate on buildings and lands was not chargeable on government property.
Relying on this provision in the Rules, an objection was raised that the charge of the tax was illegal when the Railway had become government property.
Subsequently, the respondent Municipality amended its Rules and promulgated fresh Rules on the 6th October, 1931.
By this time, the respondent Municipality had been constituted into a Borough under the Bombay Municipal Boroughs Act No. 18 of 1925 (hereinafter referred to as "the Act of 1925").
These new Rules were thus promulgated under this Act of 1925.
Under these Rules, the exemption in respect of government property to the charge of the general rate on buildings and lands, which was contained in the Rules of 1916 was deleted and all lands and buildings within the Municipal Borough became chargeable irrespective of their being owned by the Government.
A separate clause was incorporated giving certain exemptions, but, since they do not affect the case before us, they need not be mentioned.
In pursuance of these Rules of 1931, the respondent started collecting the consolidated tax assessed as a rate on buildings and lands of the Railway from it.
In the year 1940, the Railway Administration preferred an appeal under section 110 of the Act of 1925 against one of the demand notices issued in respect of this tax on the 6th October, 1940.
This appeal came up before the Sub Divisional Magistrate Western Division, Poona, who held that the levy of this consolidated tax was ultra vires and set aside the demand notice.
On a revision by the respondent under section 111 of the Act of 1925, the District and Sessions Judge set aside the order of the Sub Divisional Magistrate, holding that the imposition of the tax was valid.
Against this decision, the Railway Administration filed a revision 924 before the High Court of Bombay under section 115 of the Code of Civil Procedure.
The High Court, on 12th February, 1945, refused to exercise its special powers under section 115, C.P.C., with the further remark that the proper remedy to be sought was by means of a suit.
Under these circumstances, the Union of India, which had come to be the owner of this Railway under the name of the Central Railway, filed the suit on 27th November, 1954 for refund of the entire amount which was collected by the respondent from the Railway in pursuance of the Rules of 193 1.
The trial court held that the levy of this tax was void inasmuch as, under the notification issued on the 26th July, 1917, only the rate on lands and buildings was payable by the Railway Administration.
The suit for the refund filed by the Union of India was, on this ground, decreed.
On appeal, the ' High Court disagreed with the trial court and held that even the consolidated tax was payable in view of the notification of 26th July, 1917, so that the tax had been rightly collected.
The High Court, thereupon, set aside the decree of the trial court and dismissed the suit.
It is against this decree that the Union of India has come up in this appeal by certificate under Article 133 of the Constitution.
In order to appreciate the submissions made by counsel for parties in this appeal, it is necessary to set out the relevant provisions of section 59 of the Act of 1901 and of section 73 of the Act of 1925 which are as follows : "Section 59 of the Act of 1901.
(1) Subject to any general or special orders which the State Government may make in this behalf, any Municipality many impose, for the purposes of this Act, any of the following taxes, that is to say, (i)a rate on buildings or lands or both, situate within the municipal district; (vii) a general sanitary cess for the construction or maintenance, or both construction and maintenance, of public latrines, and for the removal and disposal of refuse; (viii) a general water rate or a special water rate or both for water supplied by the Municipality, which may be imposed in the form of a rate assessed on buildings 925 and lands, or in any other form, including that of charges for such supply, fixed in such mode or modes, as shall be best adapted to the varying circumstances of any class of cases or of any individual case; (ix) a lighting tax; . .
Provided further that . .
(c) the Municipality in lieu of imposing separately any two or more of the taxes described in clauses (i), (vii), (viii) and (ix) may impose a consolidated tax assessed as a rate on buildings or lands, or both situate within the municipal District.
" "Section 73 of the Act of 1925 73. (1) Subject to any general or special orders which the State Government may make in this behalf and to the provisions of sections 75 and 76, a municipality may impose for the purposes of this Act any of the following taxes, namely: (i) a rate on buildings or lands or both situate within the municipal borough; . .
(viii)a general sanitary cess for the construction and maintenance of public latrines, and for the removal and disposal of refuse; . .
(x) a general water rate or a special water rate or both for water supplied by the municipality, which may be imposed in the form of a 'rate assessed on buildings and lands or in any other form, including that of charges for such supply, fixed in such mode or modes as shall be best adapted to the varying circumstances of any class of cases or of any individual case; (xi) a lighting tax; . .
926 Provided further that . .
(c) the municipality in lieu of imposing separately any two or more of the taxes described in clauses (i), (viii), (x) and (xi) may impose a consolidated tax assessed as a rate on buildings or lands or both situated within the municipal borough.
" In the year 1914, the respondent Municipality had only levied a rate on buildings an& lands under clause (i) of section 5 9(1) of the Act of 1901.
There was no question of imposing a general or special water rate as the respondent had no water works of its own and was taking water supply from the G.I.P. Railway.
It was in these circumstances that the notification was issued by the Central Government dated the 13th May, 1914 making the Railway Administration liable to pay house tax to the Municipality of Lonavla.
The notification was obviously intended to make the Railway liable to pay the tax which had been imposed as a rate on buildings and lands under section 59(1)(i) of the Act of 1901 by the respondent.
Subsequently,, in the year 1916, the respondent Municipality not only arranged for water supply and imposed a general water rate, it proceeded to make rules for imposition of a consolidated tax assessed as a rate on buildings and lands under clause (c) of the second proviso to section 59(1) in lieu of the existing tax imposed as a rate on buildings and lands under clause (i) as well as the water rate, imposed under clause (viii) of section 59(1).
Thereafter, the Central Government issued the notification dated 26th July, 1917 under section 135(1) of the Railways Act making the G.I.P. Railway liable to tax on buildings and lands imposed by the Lonavla Municipality.
It is to be noted that, in this notification, the Government used the word "tax" and not the word " rate".
The tax imposed under section 59(1) was described as "a rate on buildings and lands".
If the intention of the Government had been that the G.I.P. Railway should be liable to that tax only, it could have used the word "rate" instead of the word "tax ' in the notification.
In fact, if the, notification had been left untouched, the liability of the G.I.P. Railway would have continued to be in respect of the rate on buildings or lands because of the earlier notification of 1914, under which the Railway had been made liable to House tax.
The notification of 26th July, 1917 made the Railway liable to tax on buildings and lands obviously because the Government intended that the Railway should be liable to the consolidated tax under clause (c) of the second proviso to section 59(1).
Clause (c) permits the imposition of a consolidated tax assessed as a rate on buildings or lands, or both.
The moment a tax is assessed as a rate on buildings or lands, it naturally becomes a tax 9 2 7 on building and lands.
The fact that it was a consolidated tax was immaterial.
It was this consolidated tax which was intended to be made payable by the G.I.P. Railway when the Central Government used the expression "tax on buildings and lands" in place of the earlier words "House Tax" and chose not to refer to the liability being in respect of a rate on buildings and lands.
It is true that all taxes are not rates but all rates are taxes.
A rate on buildings and lands is 'a tax on buildings, so also any other tax ' assessed as a rate on buildings and lands becomes a tax on buildings and lands.
We are unable to accept the submission made by counsel for the appellant that the expression "tax on buildings and lands" used in the notification of 26th July, 1917 could only refer to a rate on buildings and lands under clause (i) of section 59(1) and would not cover the con solidated tax referred to in clause (c) of the second proviso.
It is true, as urged by him, that the tax under clause (c) of the second proviso is not identical with, and is different in nature from, the rate on buildings and lands imposed under clause (i), but that circumstance does not imply that it is not a tax on buildings and lands.
The mere use of the word "consolidated" cannot make any difference to this interpretation.
It is also significant that clause (c) of the second proviso does not purport to lay down that the consolidated tax will be the sum total of the taxes described in clauses (i), (vii), (viii) and (ix).
The consolidated tax envisaged by that clause is in lieu of separate imposition of any two or more of the taxes described in clauses (i), (vii), (viii) and (ix) which means that the power to impose.
this consolidated tax has been given for the purpose of substituting it for the multiple taxes which could be imposed under those clauses.
This consolidated tax cannot, therefore, be held to be of the same nature as the taxes in all those clauses.
The intention appears to be that, though the Municipality was empowered to impose four different kinds of taxes, it was permitted under clause (c) of the second proviso to simplify matters by having a single tax on buildings and lands in lieu of those multiple taxes.
Such a single tax had to be assessed as a rate on buildings and lands.
This being the nature, it obviously becomes a tax on buildings and lands, so that the notification of 26th July, 1917 clearly makes the Railway liable to payment of this tax.
The position under the Act of 1925 is exactly the same where also the language of clause (c) to the second proviso is identical with that contained in the Act of 1901, so that the liability imposed on the Railway by the notification of the Government dated 26th July, 1917 under s.135(1) of the rail ways Act continued even under the Act of 1925.
It is also significant to note that the Rules, which we 're framed by the Municipality under the Act of 1901 and by the Municipal .Borough later under the Act of 1925 which were promulgated on 928 the 4th May, 1916 and the 6th October, 1931 respectively, described the tax as a general rate on buildings and lands in rule 1.
It is true that, in the heading of the Rules, the expression used was that "the Rules were for the levy of a consolidated rate on buildings and lands", but, in the main provision, the tax was described only as "a general rate on buildings And lands".
A general rate on buildings and lands is obviously a tax on buildings and lands and would, therefore, be covered by the notification of the Central Government dated 26th July, 1917.
Apart from this interpration which we have arrived at on the basis of the language used in the two Acts, the Rules, and the notification of the Central Government, there are two circumstances which indicate that this must be the correct construction of the notification issued by the Central Government.
The first circumstance is that, when this notification was issued, the only tax which was being imposed by the Lonavla Municipality which the Central Government could have intended should become payable by the, G.I.P. Railway was the consolidated tax under clause (c) of the second proviso.
There was no other tax which could have been covered by this notification.
In fact, the notification would be meaningless if we were to hold that this consolidated tax is not covered by the expression "tax on buildings and lands".
This notification was issued while the earlier notification of 1914 was ,already in existence and, if the intention was to cover only the rate mentioned in clause (i) of section 59(1), there was no need to issue this fresh notification as the liability of the Railway to pay that tax already existed under that notification of 1914.
The second circumstance that we can take notice of is the historical background in which this notification of 26th July, 1917 was issued.
It appears that, after the Rules for imposition of this consolidated tax came into force in 1916, the Municipality demanded payment of this consolidated tax from the G.I.P. Railway.
Thereupon, the Agent of the G.I.P. Railway Company wrote a letter to the Secretary, Railway Board, Simla, on the 1st December, 1916, stating that the Company did not agree that it should pay the new consolidated tax as it comprised a house tax and a water rate.
The Company had its own arrangements for the supply of water and it was obviously unfair that it should be called upon tO pay any tax which includes a water rate, when no municipal water was being consumed by the Railway at Lonavla.
The Secretary, Railway Board, forwarded this letter to the Secretary to the Government of Bombay, General Department, with a letter dated 12th December, 1916, enquiring whether the Agent 's information was correct and, if so, whether the Bombay Government had any remarks to offer on the, Agent 's 92 9 contentions.
On 11th May, 1917, the Secretary to the Government of Bombay replied to the Secretary, Railway Board, pointing.
out that, originally, the Municipality, proposed to levy a general water rate on all houses, in addition to the existing house tax, but, on representations from property owners of Lonavla and Khandalla, it had decided to.
impose a consolidated rate on buildings and lands in lieu of the house tax and the proposed general water rate.
Consequently, they were, levying, in lieu of house tax, a consolidated rate, which included a general water rate, on a sliding scale, on all properties situated within the municipal limits.
The water rate imposed was not intended to cover expenses on any service rendered in the nature of a general tax as opposed to a service tax.
In equity, the Railway Company 's property in Lonavla had no better right to exemption than the properties of private individuals who, although they did not take private pipe connections, were paying the general water rate.
In these circumstances, a request was made to the Secretary, Railway Board, to move the Government of India to declare the Administration of the G.I.P. Railway liable to pay to the Lonavla Municipality the consolidated tax on buildings and lands in lieu of the, housetax in respect of the railway properties situated within the municipal limits.
It was suggested that the Schedule annexed to the notification dated 13th May, 1914 may be amended accordingly.
It was in pursuance of this move by the Bombay Government that the notification of 26th July, 1917 was issued by the Central Government.
That the notification of 26th July, 1917 was issued in pursuance of this correspondence is clarified by the Memorandum dated 17th August, 1917, with which a copy of the new notification was forwarded by the Government of India, Railway Department (Railway Board) to the Secretary to the Government of Bombay.
These circumstances, in which the notification of 16th July, 1917 was issued, make it plain that the Government of India, when they used the expression ' 'tax on buildings and lands" in the notification, intended to make the G.I.P. Railway liable to the consolidated tax which had been imposed by the Municipality under the Rules of 1916.
The decision of the Bombay High Court in Borough Munici .
pality, Ahmedabad vs Ahmedabad Manufacturing and Calico Printing Co. Ltd. (1) on interpretation of, section 73 and 1 1 0 of the Act, of 1925 also supports the view that we have taken above.
The, question that arose in that case was whether the right of an appeal ' envisaged by using the expression "in the case of a rate on buildings or lands or both" in section 110 could be availed of in respect of, a general water rate imposed under clause (x) of section 73(1) which described that tax as a general water rate imposed in the form of a. (1) , 930 rate assessed on buildings and lands.
It was held that there was no distinction between a rate on buildings or lands and a tax in the form of a rate assessed on buildings or lands.
In the case before us, ,on that analogy, a consolidated tax assessed as a rate on buildings and lands cannot be distinguished from a tax on buildings and lands.
Reference may also be made to a decision of the Allahabad High Court in Raza Buland Sugar Co., Ltd. Rampur vs Municipal Board, Rampur(1) where it was held that a water rate is a tax on buildings and lands and is not, in fact, a service tax chargeable in respect of water supplied.
Counsel for the appellant referred to a decision of the Madras High Court in Municipal Council, Cuddappah vs M & section M. Ry.
Co. Ltd.(1); but that case is of no assistance as it turned on the special language which had been used in the Act and the notification which came up for consideration in that case.
In fact, the expression that had to be interpreted was "property tax" and not "tax on buildings and lands".
We agree with learned counsel for the appellant that much assistance cannot be derived from the decision of this Court in Patel Gordhandas Hargovindas vs Municipal Commissioner, Ahmedabad ( 3 ) which was relied upon by the High Court.
However, as we have held ,above, on the proper interpretation of the language used in the two Acts, the Rules, and the notification, and taking into account the circumstances under which the notification of 1917 was issued, the only conclusion that can be arrived at is that the Railway was made liable to this consolidated tax, so that the decision of the High Court is perfectly correct.
The appeal fails and is dismissed with costs.
R.K.P.S. Appeal dismissed.
(1) A.I.R. 1962 Alld.
(2) A.I.R. 1929 Mad. 746.
| The respondent Municipality, which at the time was governed by the Bombay District Municipal Act 3 of 1901 levied a tax on lands and buildings situated within its municipal limits at 4 per cent of the annual rental value.
However, no such tax was levied on the buildings and lands of the G.I.P. Railway situated within its limits in view of section 135 of the Indian Railways Act, 9 of 1890.
In 1914,the Government of India issued a notification under section 135 persuant to which the G.I.P. Railway administration was required to pay house tax to the respondent.
Upto 1916 the respondent municipality used to draw water from the Railway 's reservoir but constructed its own reservoir during that year.
Both prior to and after this date, no water rate was charged by the respondent municipality from the railway.
On 4th May, 1916 the respondent promulgated new rules for taxation and instead of charging separate house tax under section 59(1)(i) or a general water rate under section 59(1) (viii) of the Act of 1901, it decided to charge a consolidated tax assessed as a rate on buildings and lands in accordance with clause (c) of the proviso to section 59(i).
Although the respondent demanded this consolidated tax from the railway in respect of its lands and buildings, the railway resisted payment contending that under the notification of 1914, house tax only was payable by it.
On 26th July, 1917, the Government of India issued a fresh notification under section 135 of the Railways Act whereby the railway administration was rendered liable to pay what was described as "tax on lands and buildings".
Thereafter the respondent charged the railway the consolidated tax until some time in 1927 when the G.I.P. railway was taken over by the Government.
In the rules promulgated on 4th May, 1916, the consolidated tax was not chargeable on Government property.
Relying on this provision, an objection was raised that the charge of tax was illegal when the railway had become Government property.
The respondent Municipality amended its rules and promulgated fresh rules on 6th October, 1931 under the provisions of the Bombay Municipal Boroughs Act 18 of 1925 under which enactment the respondent municipality had by that time been constituted into a Borough.
Under these rules the exemption in respect of Government property was deleted.
In pursuance of these amended rules the respondent started collecting from the railway the consolidated tax assessed as a rate on its buildings and lands which was by then being levied under the provisions of s.73 of the Act of 1925 that were similar to those of s.59 of the Act of 1901.
In 1940 the railway administration preferred an appeal under section 110 of the Act of 1925 against one of the demand notices.
Although the 921 First Court set aside the demand notice, an appeal was eventually dismissed by the High Court with the remark that the proper remedy to be sought was by means of a suit.
The Union of India which had become the owner of the railway, field a suit in November 1954 for refund of the entire amount which was collected by the respondent from the railway in pursuance of the rules of 1931.
The, Trial Court granted a decree holding that the levy of this tax was void inasmuch as, under the notification issued on the 26th July, 1917, only the rate on lands and buildings was payable by the Railway Administration.
On appeal, the High Court disagreed with the trial court and set aside the decree.
, Oil appeal to this Court by a certificate under article 133 of the Constitution.
HELD : Dismissing the appeal, On the proper interpretation of the language used in two Acts, the Rules, the notification, and taking into account the circumstances under which the notification of 1917 was issued, the only conclusion that could be arrived at was that the Railway was made liable to the consolidated tax.
It is true that all taxes are not rates; but all rates are taxes.
A rate on buildings and lands is a tax on buildings; so also any other tax assessed as a rate on buildings and lands becomes a tax on buildings and lands.
It was not possible to accept the submission of the appellant that the expression "tax on buildings and lands" used in the notification of 26th July, 1917 could only refer to a rate on buildings and lands under clause (i) of section 59(1) and would not cover the consolidated tax referred to in clause (c) of the second proviso.
Although the tax under clause (c) of the second proviso is not identical with and is different in nature from,the rate on buildings and lands imposed under clause (i), that circumstance does not imply that it is not a tax on buildings and lands.
The mere use of the word "consolidated" cannot make any difference to this interpretation.
The intention appears to be that, though the Municipality was empowered to impose four different kinds of taxes, it was permitted under clause (c) of the second proviso to simplify matters by having a single tax on buildings and lands in lieu of those multiple .axes.
Such single tax had to be assessed as a rate on buildings and lands.
This being the nature, it obviously becomes a tax on buildings and lands, so that the notification of 26th July, 1917 clearly makes the Railway liable to payment of this tax.
The position under the Act of 1925 is exactly the same where also the language of clause (c) to the second proviso is identical with that contained in the Act of 1901, so that the liability imposed on the Railway by the notification of the Government dated 26th July, 1917 under section 135(1) of the Railways Act continued even under the Act of 1925.
[927 B H] Borough Municipality, Ahmedabad vs Ahmedabad Manufacturing and Calico Printing Co. Ltd., ; Raza Buland Sugar Co. Ltd. Rampur vs Municipal Board, Rampur, A.I.R. 1962 Alld.
83, Municipal Council, Cuddappah vs M.,& S.M. Ry.
Co. Ltd., A.IR and Patel Gordhandas Hargovindas vs Municipal Commissioner, Ahmedabad, ; ; referred to.
|
Civil Appeal No. 1271 of 1969.
Appeal from the Judgment and Order dated 17 8 1966 of the Andhra Pradesh High Court in Appeal Nos. 252 and 283 of 1960.
427 V. Gopala Krishnaiah,, A. K. Ganguli and D. P. Mukherjee for the Appellant.
Upendralal Waray and A. Subba Rao for the Respondent.
The Judgment of the Court was delivered by DESAI J.
This appeal by certificate granted under Article 133(1)(a) of the Constitution arises from Civil Suit No. 23/1 of 1952 filed by the appellant against 56 respondents for recovering possession of lands more particularly set out in the Schedule annexed to the plaint, mesne profits, accounts and injunction, which suit was largely dismissed and partly decreed by the trial Court but in appeals bearing A. section Nos. 252 and 283 of 1960 by the unsuccessful defendants and the plaintiff, respectively, as dismissed as a whole.
A brief narration of facts necessary for appreciating the contentions raised herein may be set out.
Plaintiff appellant is the son of late Kazim Yar Jung who was a Minister of H.E.H. the Nizam of Hyderabad.
The father of the plaintiff obtained grant of certain lands in Ryalamadugu village from the Government of Nizam, the patta having been granted in the name of the plaintiff.
At about the time of police action in 1948 when the local conditions in Hyderabad City and State were disturbed, the plaintiff, his father Kazim Yar Jung and his step brother Mustafa found it difficult to even approach their lands and the plaintiff was then contemplating to shift to Pakistan with others.
Defendant No. 1 Rami Reddy who was a police Patel approached the plaintiff and represented that he would manage the affairs of the plaintiff, his brother and father, out that is he was not keeping well a nominal Power of Attorney would have to be granted to defendant No. 34 Uppara Sattayya whereupon the plaintiff, his father and brother jointly executed a Power of Attorney, Ext.P 1 dated 10th April 1949 in favour of defendant No. 34 which was further supplemented by the deed Ext.P 2 dated 20th April 1949.
The plaintiff alleged that in October 1949 he came to know that defendants nos.1 and 34 were perpetrating fraud when on 25th October 1949 the plaintiff and his brother Mustafa published a notice in the newspapers and the Gazette cancelling the Power of Attorney granted in favour of defendant No. 34.
Plaintiff then came to know that defendant nos, 1 and 34 and other defendants in collusion with each other got Transferred the lands of the plaintiff for inadequate or 110 consideration and that a fraud was perpetrated.
The plaintiff further alleged that the Power of Attorney is vague and void and inoperative and would not clothe defendant No. 34 with legal authority to deal with the properties in the manner in which they have been dealt 428 with.
At any rate, the Power of Attorney did not clothe defendant no, 34 with the authority to sell the land and, therefore, the purchasers have not acquired any title to the lands purporting to have been sold by defendant No. 34.
The plaintiff accordingly sued for possession, mense profits and accounts from the defendants.
Different groups of defendants filed three separate written statements but more or less the contentions raised in the various written statements are identical.
The first contention is that the plaintiff was not the lull and absolute owner of the suit lands but was a benamidar inasmuch as the lands were granted to the father of the plaintiff who was a Minister in the Nizam 's Government but the patta was formally taken in the name of the plaintiff who was then a minor.
It was also contended that the Power of Attorney, Ext, P l with P 2 was legal and valid and binding and it clothed del`defendant 34 with an authority to sell the lands and different parcels of lands have been sold to different defendants for full consideration and the plaintiff was aware of it and is now trying to take an advantage on the basis of a technical plea.
There were some other contentions which at this stage are hardly relevant.
The trial Court held that the plaintiff was the full and absolute owner of the suit properties.
The Power of Attorney Ext.P 1 was not vitiated by fraud and has clothed defendant No. 34 with the necessary authority to sell the lands and the sale of different parcels of lands in favour of different defendants were not vitiated by fraud and each sale was for consideration and binding on the plaintiff.
The Trial Court further held that the properties bearing Items 27 to 40, 42 44, 46, 47, 55 67 and 69 set out in the ' Schedule annexed to the plaint were not proved to have been sold, the conclusion having been based on the only ground that no sale deeds were forthcoming and accordingly it was held that the plaintiff was entitled to recover possession of the aforementioned pieces of land.
The trial Court accordingly dismissed the suit except for the aforementioned pieces of land in respect of which a decree for possession and mesne profits was granted in favour of the plaintiff.
Two appeals came to be filed to the High Court.
Appeal bearing A. section 252/60 was preferred by original defendants 8, 9 and 11 to the extent decree was made against them by the trial Court.
Appeal bearing A.S. 283/60 was preferred by the plaintiff to the extent the suit was dismissed.
Both the appeals came to be disposed of by a Division Bench of the Andhra Pradesh High Court by a common judgment rendered on 17th August 1966 by which A.S. 252/60 preferred by original defendants 8. 9 and 11 was allowed and the decree made against them 429 in favour of the plaintiff was set aside, and A.S. 283/6 preferred by the plaintiff was dismissed.
As a consequence the entire suit of the plaintiff came to be dismissed with costs in one set.
The plaintiff thereupon approached the High Court for a certificate and on a certificate under Article 133(1) (a) being granted, the plaintiff lodged the present appeal.
When the appeal reached the stage of hearing on an earlier occasion, CMP. 17845/78 was filed requesting the Court to record a memorandum of compromise between the appellant and the legal representatives of respondents 1, 2, 3, and respondent 34 inviting the Court to dismiss the appeal of the plaintiff appellant against them.
By an order made by this Court, this compromise was recorded and the appeal was so down for further hearing against the remaining respondents.
We take note of this compromise because on the basis of this compromise a submission has been made on behalf of the remaining respondents that the appeal against them would no more survive.
Mr. V. Gopalakrishnayya, learned counsel for the appellant urged that it is impermissible in law to give a joint Power by three persons in favour of one agent.
Alternatively it was contended that if such a power of Attorney is legal and valid it would clothe the agent with the only authority to Act in respect of the joint affairs or property of the principals and not for any individual affair or property of any one of them.
It was further urged that upon a true construction of the authority conferred by the Power of Attorney, Ext P 1 the scope of authority only encompassed the management of the joint properties of the three co principals or at best the management of property of each one of the principal but it did not clothe him with an authority to sell the property of any one of them and the situation is not improved by the supplementary deed, Ext.
Alternatively it was contended that if exhibit P 1 conferred an authority to sell the land it was hedged in with a prerequisite that the property can be sold to finance the litigation or to repay the loan, if any, borrowed for the aforesaid purpose.
In this context it was submitted that the Court should bear in mind that the garden is on the party who seeks to rely on the authority of the constituted attorney to establish that the impugned transaction falls within the ambit of authority of the attorney, and in this connection it may be borne in mind that ordinarily the courts construe Power of Attorney strictly.
It was then urged that even if it is held that by the combined operation of Exts.P 1 and P 2 the Attorney had the authority to sell the land he had not acted on his own but merely completed the sale negotiated by an outsider and thereby he acted as a rubber stamp and such an act of the attorney would not bind the principal, and in that 430 event the purchaser did not acquire any title to the land.
It was also contended that the High Court was in error in admitting the three sale deeds by granting CMP. 2762/61 purporting to act under Order 41, rule 27, Civil Procedure Code, and if they are excluded from consideration, in the absence of sale deeds the decree of the trial Court against original defendants 8, 9 and 11 will have to be restored.
On behalf of the contesting respondents it was urged that the plaintiff being benamidar, cannot maintain the suit on the allegation that he is the full and absolute owner of the properties.
The first contention of the appellant is that it was impermissible in law for three persons to jointly grant a Power of Attorney in favour of defendant 34.
Barring the ipse dixit of the learned counsel nothing was shown to us to make such a joint power impermissible in law.
The relation between the donor of the power and the donor of the power is one of principal and agent and the expression 'agency ' is used to connote the relation which exists where one person has an authority or capacity to create legal relations between a person occupying the position of principal and third parties.
The relation of agency arises whenever one person called the agent has authority to act on behalf of another called the principal and ' consents so to act.
The relationship has its genesis in a contract.
If agency is the outcome of a contract between the principal and the agent, in order to show that three principals jointly constituting an agent by a deed called 'Power of Attorney ' was impermissible, provisions of Contract Act or the general law of contract should have been shown as having been violated by such a contract.
Nothing of the kind was pointed out to us.
On the contrary, in Halsbury 's Laws of England, Vol.I, 4th Edn.para 726, the following proposition has been stated: "Co principals may jointly appoint an agent to act for them and in such case become jointly liable to him and may jointly sue him.
" We are in agreement with this view and, therefore, three principals could jointly appoint an agent.
The next limb of the submission was that if three co principals jointly constituted an agent then unless contrary is indicated by the deed of the Power of Attorney, the necessary inference would be that the agent can act in respect of those affairs in which all the co principles are jointly interested.
In other words, it was said that such a Power of Attorney would clothe the agent with an authority to act in respect of joint affairs of the co principals.
We are unable to find any force in this 431 argument, for what the Power of Attorney authorises depends on its terms and the purpose for which it is executed.
It would, therefore, be necessary to refer to the Power of Attorney, Ext.P l and the supplementary deed, Ext.P l is dated 10th April 1949 and is styled as general Power of Attorney.
The co principals are: (1) plaintiff Syed Abdul Khader (2) Kazim Yar Jung, and (3) Syed Mustafa Hussain.
The purpose for which the power was executed is set out in Ext.P l in the following words: "that in view of our private needs and as we are unable to conduct cases and answer them in time, we therefore appoint Copper Sattayya son of Coper Durgayya resident of Ghanpur, Medak Taluq as our general power of Attorney to act on our behalf and we empower the said person through this power of Attorney that the said Muktar can conduct the cases (Parvi) of all sorts, question and answer, admit or deny, either orally or writing on our behalf in all departments, civil and criminal courts, in the High Court, in the judicial committee, in the Revenue Departments of the Districts, namely, in the offices of the IInd, IIIrd, and Ist Taluqdars, the Tahsil Offices etc and purchased or sell (sic) of lands and that he is authorised to appoint any pleader or special Muktar when occasioned (sic) and to stop or to take or file any copies in any suit or to file any suit or file any written statements with his own signature to fetch any loan for our business or lands or to pay the debts from out of the income of the estate or to purchase or sell the lands and to execute the sale deeds and get registered under his signature etc . " The last sentence is that "all the acts of the said Muktar shall be deemed to be acts done and effected by us which we hereby accept and approve".
Subsequently on 20th April 1949 a supplementary Power of Attorney in addition to Ext.P l was executed by the aforementioned three donors of Power in favour of defendant No. 34 in which it is specifically stated that they affirm earlier Power of Attorney dated 10th April 1949 and thereafter the relevant recital is as under: "But by the said document, the powers of sale and registration were not confirmed (sic) on him and that therefore through this deed the same is hereby confirmed (sic) on him '.
It was urged that the Court should bear in mind the first principle that a Power of Attorney has to be strictly construed.
Undoubtedly, where someone other than the person who has a right to act in respect 432 of certain things has, under a contract of agency, the right to ac.
On be half of principal, the authority conferred by the written instrument has to be strictly construed.
Ordinarily a Power of Attorney is construed strictly by Courts (vide Bryant, Powis and Bryant Ltd. vs La Banque du Peuple) (1).
Adopting the principle of strict construction of a Power of Attorney, the first question that is required to be answered is whether the Power of Attorney, Ext.P l was meant to confer the authority on the agent to act only in respect of the joint affairs or joint property of the co principals or it was in respect of the individual affairs and effects of each principal.
In Ext.P 1 at three places the expression used is: "our Power of Attorney to act on our behalf and we empower the said person"; then again "on our behalf in all departments", and then lastly, "acts done and effected by the agent shall be deemed to be the acts done and effected by the principals." Mr. Gopalakrishnayya said that it would be extraordinary to hold that the expression "on our behalf" as disclosing a conjoint action on behalf of more than one person could ever be interpreted by any canon of construction as one on behalf of each individual.
He said that apart from the strict construction the Court must put on a Power of Attorney, where the terms of the written contract are clear and unambiguous it is impermissible for the Court to take into consideration the other circumstances to determine the intention of the parties.
When a contract is reduced to writing, undoubtedly the Court must look at the terms of the contract and proceed on the assumption that the parties intended what they have said and if the terms are unambiguous the Court must give effect to the terms of the contract.
However, it is well establish ed that in considering a contract it is legitimate to take into account the surrounding circumstances for ascertaining the intention of the parties (vide Modi & Co. vs Union of India).(2) Exhibit P l being a Power of Attorney granted by three co principals in favour of one agent, the expression "on our behalf" would hardly be decisive of the scope of authority conferred by the deed.
The circumstances in which such Power of Attorney came to the executed and the fact that three different persons though near relations but having no joint property or venture joined in executing a Power of Attorney and the purpose and object for which it was executed when taken into consideration would throw light on the true, nature of the authority conferred by the deed.
In this connection it is an admitted position that the Power of Attorney was executed in April 1949 and that too, in the (1) at 177(2) ; 433 State of Hyderabad, the erstwhile Nizam 's State.
In the wake of police action in the fall of 1943 and thereafter there were unusually disturbed conditions in Hyderabad State.
Plaintiff himself has stated in plaint para 1 that the conditions in Hyderabad were disturbed that like himself, his father and brother found it difficult to make contact with their properties and it was being contemplated by the plaintiff that he might shift to Pakistan with others.
All the three persons, i.e. his father, brother and the plaintiff found it difficult even to approach the properties of each of them and that all of them were contemplating;, to migrate to Pakistan.
In his belated evidence in Court after defendants ' evidence was closed the plaintiff re affirmed that after police action he lost possession of his lands and it was difficult to approach the lands or manage the same.
Even his clerk was not willing to undertake the responsibility.
Further there is no evidence to show that all the three co principals had any joint property or any joint business or any joint venture in which they were jointly interested.
Plaintiff says in his evidence that all the three joined in executing Power of Attorney Ext.P 1 because each of them had his land in that area and each was unable to manage his land.
In this background it would be futile to say that the three co principals executed the power of Attorney in favour of the agent to lookafter their joint affairs and joint property alone.
In fact, plaint para I leaves no room for doubt that each of the three co principals neither could manage nor could have access to each one 's own property and that each one was contemplating to migrate to Pakistan and that therefore they all gathered together and executed one Power of Attorney in favour of defendant No. 34 as a matter of convenience for dealing with the property of each one of the co principals.
It thus clearly transpires that each one of the co principals had his land, that each one of them was unable to manage his land, and that all the three of them were contemplating to migrate to Pakistan and that they wanted possibly to dispose on their lands, collect cash and skip over to Pakistan.
If Power of Attorney Ext.P 1 was executed in this background it would illumine the scope and ambit of authority conferred by Ext.
It would clearly appear that each one wanted to constitute defendant 34 to be his agent in respect of his property.
Therefore, the contention that the power of attorney Ext.P 1 read with Ext.P 2 was a joint power only in respect of joint properties of the three co principals must be rejected.
An incidental submission may be disposed of at this stage.
It was urged that the Power of Attorney Ext.P 1 is legally invalid and defective in form and that the supplementary document Ext.P 2 does not render in valid.
The defect pointed out is that when Ext P 1 was offered for registration the Sub Registrar has nowhere noted in his endorsement 434 that the donors of the power who executed the Power of Attorney Ext.P 1 were identified to him by someone known to him or they were personally known to him.
Undoubtedly the Sub Registrar in order to be satisfied that there is no impersonation may require some person known to him to identify those who admit execution before him but in case the persons who have executed the deed before him are known to him the failure to endorse that fact on the deed does not render the deed invalid.
In any event if those who executed the deed admit having executed the deed, the fact that the Sub Registrar failed to endorse the fact of the persons being known to him would not render the deed invalid.
A General Power of Attorney is not a compulsorily registrable document.
No rule or regulation was pointed out to us in support of the submission that it was obligatory for the Sub Registrar to make the endorsement that those who have executed the deed were either personally known to him or were identified by someone known to him.
Therefore, there is no merit in the contention and it must be rejected.
The next contention is that upon a true construction of Ext.P 1, the authority conferred thereby was to manage the property of the donors of the power and it did not confer any authority to purchase or sell the property.
Simultaneously it was stated that Ext.P 2 does not improve the position in this behalf.
Both the Courts have rejected this submission and for very good and convincing reasons.
A bare perusal of Ext.P 1 clearly shows that apart from the power to manage the property, a further power to purchase and sell lands was conferred on the agent.
Power to purchase and sell lands has been expressly mentioned at two places in Ext.P 1., But even apart from this, the plaintiff in his cross examination has admitted that after executing Ext.P 1 the Registrar pointed out that the Power of Attorney Ext.P 1 does not confer the authority to sell land and offer for registration sale deed and requested them to execute a supplemental document expressly confer ring such authority and he identified Ext.P 2 to be the supplemental document.
P 2 has been reproduced in extenso by the High Court in its judgment and in no uncertain and most unambiguous terms it is stated therein that the power to sell and registration of sale deed was conferred by Ext.
But even if Ext.P 2 were to be excluded from consideration, the Power of Attorney Ext.P 1 clearly confers an authority on the agent to sell the property.
If we recall at this stage the circumstances in which Ext.P 1 came to be executed in favour of defendant No. 34, it clearly appears that plaintiff, his father and brother were keen to get the lands sold as they were contemplating to migrate to Pakistan.
In the face of this express and explicit power it could not be said that the authority was conferred only to manage the property.
435 In Ext.P 1 the expression 'to manage the property ' is nowhere to be found.
On the contrary the general Power of Attorney is couched in a language which confers wide authority to file suits, defend actions, engage advocates, appear in various offices, purchase and sell land and execute sale deeds and get them registered, to borrow money, to employ persons needed for carrying out affairs and to dismiss them.
It is difficult to appreciate the submission that the authority was only to manage the property.
The submission is not borne out by the contents of Exts.P l and P 2.
Incidentally in this connection it was urged that the power to purchase and sell land and to execute documents and to offer them for registration does not include the power to sell agricultural land.
This has only to be mentioned to be rejected because the expression 'lands ' would include both agricultural and non agricultural land.
The next contention is that even if the Court were to accept that the authority conferred by the Power of Attorney encompasses the authority to sell land, the power to sell land was hedged in with a pre condition 1 or with a pre requisite that the land could be sold either for Financing litigation or if for that purpose a loan was borrowed, to repay the loan.
Sustenance is sought to be drawn for this submission from the following few lines in Ext.P 1: "and purchase or sell (sic) of lands and that he is authorised to appoint any pleader or special Muktar when occasioned (sic) and to stop or to take or file any copies in any suit or to the any suit or file any written statements with his own signature to fetch any loan for our business or lands or to pay the debts from out of the income of the estate or to purchase or sell the lands and to execute the sale deeds and get registered under his signature and to obtain money or to enter into a compromise in any suit or get it settled through arbitration or to withdraw any suit. etc.
" In Ext.P 2 the supplemental Power of Attorney, it is stated that the power for sale and registration of documents was conferred on the agent The, construction suggested is not warranted by the language used in Ext.
The power to purchase or sell land was not hedged in by any pre requisite or pre condition.
Each recital constitutes a separate power, namely, (i) power to purchase or sell land, (ii) power to appoint a pleader or Mukhtar, (iii) power to file suit or appear and file written statement (iv) power to borrow money or to enter into any comprise in any suit or get it settled through arbitration and withdraw any suit each was an independent power.
There is nothing in Ext.P 1 which 436 would even remotely indicate that the land could be sold only for financing the litigation or if for that purpose a loan was borrowed, to repay the loan Such power of wide amplitude conferring such wide authority cannot by construction be narrowed down to deny an authority which the donors expressly granted.
The ordinary authority given in one part of the instrument will not be cut down because there are ambiguous and uncertain expressions elsewhere but the document will be considered as ? whole for interpretation of particular words or directions (see Halsbury 's Laws of England, 4th Edn., Volume I, Para 733).
The contention, therefore, must be negatived.
The next contention is that even if Ext.P 1 confers authority on dependant 34 to sell land, the authority so conferred on defendant 34 was to act on his own and not at the behest of an outsider or as a rubber stamp of someone and that in this case evidence clearly shows that it was Kazim Yar Jung, the father of the plaintiff who entered into an agreement, Ext.D 18 dated 14th February 1949, with defendant No. 1 for sale of land and the agent defendant 34 merely rubber stamped the sale and executed the sale deed and that such a sale is not binding on the plaintiff.
At first blush the argument is really attractive but it does not stand scrutiny.
Land involved in the dispute was granted by the Nizam when the father of the plaintiff was a Minister in the Nizam 's Government.
Patta evidencing the grant was taken in favour of the plaintiff who was then a minor.
The father of the plaintiff really believed that he was the owner of the land and in fact on 20th October 1949 he wrote to Tahsildar, Medak; that his son was a benamidar and that the lands may, therefore, be transferred in his name.
Thus, the father of the plaintiff acted as if he was the owner of the land but when a contention on; behalf of the respondents that the plaintiff was a benamidar would be presently examined, it would be painted out that the plain tiff we the real owner and was not a benamdar.
That is the true legal position.
the fact, however, remains hat the father of the plaintiff who must be a man of considerable influence being a Minister in the Government of Nizam, must have acted as if he was the owner of the land.
Undoubtedly, the agreement Ext.D 18 for sale of land was entered into between the father of the plaintiff and defendant No. l and pursuant to this agreement defendant No. 34 executed a sale deed in favour of defendant No. 31, but it may be noticed that the agreement Ext.D 18 was entered into two months prior to the grant of Power of Attorney, Ext.
There is, however, evidence to show that the agreement for sale of land and the sale deed were taken in the presence of and to the know ledge and with the full acquiescence of the plaintiff witness Kishta Reddy, D.W. 2 has stated in his evidence that defendant 1 Rami Reddy 437 paid the consideration for purchase of land pursuant to agreement Ext.D 18 to plaintiff in his own presence.
He has further stated that Kazim Yar Jung, Plaintiff 's father and daughter of Kazim Yar Jung and both of his sons including the plaintiff were present when the amount of consideration was paid.
This witness 's presence at the time of payment of consideration cannot be disputed because receipt Ext.
D 16 which evidences payment of consideration for the sale of land to defendant No. 1 though signed and passed by Kazim Yar Jung, the father of the plaintiff, was attested by him.
This evidence which has remained uncontroverted would show that the consideration for sale of land in favour of defendant 1 pursuant to agreement of sale Ext.D 18 was paid to the plaintiff in the presence of this witness and plaintiff accepted the same though the receipt Ext.D 18 was passed by the father of the plaintiff.
A feeble attempt was made to explain this inconvenient evidence by saying that in agreement Ext.D 18 lands are not especially described by setting out the Survey Numbers or the Khata Numbers and as in that very village plaintiff 's father had also his lands, the plaintiff may have as well remained under the impression that the father had sold his own lands and, therefore, could not raise any objection about the sale.
This explanation cannot be swallowed for the obvious reason that there was no reason for the plaintiff to accept the consideration or the consideration being put in his hands if his land was not being sold.
Even if the father of the plaintiff could be said to be an ostensible owner of the land and he purported to sell the land, the plaintiff the real owner as he claimed to be had acquiesced in the same and accepted the consideration and in this background he would be estopped from challenging the title which was transferred pursuant to the sale.
In the back drop of these circumstances the principle enunciated in section 41 of the Transfer of Property Act would come to the rescue of the transferee.
Section 41 of the Transfer of Property Act provides that where, with the consent, express or implied, of the person interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it.
Section 41 codifies what was once treated as a principle in equity which the Judicial Committee had recognised in Ram coomar vs Macqueen,.(1) wherein the Judicial Committee observed as under: "It is a principle of natural equity which must be universally applicable that, where one man allows another to hold himself out as the owner of an estate and a third person purchases it, for value, from the apparent owner in the belief that (1) (1872) I.A. 11 Bengal L.R. 46.438 he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice, of the real title; or that there existed circumstances which ought to have put him upon an inquiry that, if prosecuted would have led to a discovery of it ' In this case the father of the plaintiff throughout acted in relation to others as the owner of the property though the plaintiff was the real owner of the property.
The father of the plaintiff executed agreement D 18 to sell the land to defendant 1.
The transaction was completed in the presence of the plaintiff and the consideration was put in the hands of the plaintiff.
Plaintiff would certainly be estopped from contesting the validity of the sale on the ground that the father had no authority to sell the land or on the ground that though his father entered into the agreement Ext.D 18, his constituted attorney defendant 34 acted as a mere rubber stamp.
In this connection it would be very profitable to refer to a notice served by the plaintiff on defendant 1, Ext.D 21 dated 19th December 1949.
Now, before the true impact of this notice can be gauged, a few dates may be recalled.
The Power of Attorney Ext.P 1 was executed in favour of defendant 34 on 10th April 1949.
Agreement Ext.D 18 was entered into between the father of the plaintiff and defendant No. 1 on 14th February 1949.
This would show that agreement D 18 was entered into between the father of the plaintiff and defendant 1 prior to the execution of the Power of Attorney, Ext.
The public notice cancelling the Power of Attorney was issued on 25th October 1949.
Now, notice Ext.D 21 is dated 19th December 1449.
Therefore, it clearly transpires that notice Ext.D 21 was issued by the plaintiff after he had developed a suspicion about the fraud alleged to have been perpetrated by defendants 1 and 34 and after cancelling the Power of Attorney in favour of defendant No. 34.
Yet by this notice Ext.D 21 plaintiff called upon defendant 1 to meet him to purchase the lands set out in the notice if he was so desirous, otherwise plaintiff would sell the same to others.
The lands described in the notice clearly exclude those pieces of lands sold under the authority of Power Of Attorney Ext.
Does it stand to reason to believe that plaintiff who suspected that he was the victim of a fraud at the hands of defendant 1 and that he had to take steps to cancel the Power of Attorney granted by him in favour of defendant 34 specifically at the instance of 439 defendant 1 would ever invite him to purchase some other land ?
If there was any substance in the case put forth by the plaintiff that the sale already completed by defendant 34 in favour of defendant 1 pursuant to the agreement, Ext.D 18 executed by the father of the plaintiff in favour of defendant 1 was not acceptable to him or was not binding on him he would not invite him to purchase other lands.
The conduct of the plaintiff belies his suspicion, and the allegation of fraud and want of authority is clearly an after thought.
Viewed from any angle, the contention of the plaintiff is without merits and must be rejected.
It was next contended that the High Court was in error in granting MP.2762/61 permitting the heirs of defendants 8, 9 and 11 to produce the sale deeds which they did not produce in the trial Court and after relying on the same, reversing the decree of the trial Court.
The High Court has given cogent reasons for granting CMP. 2762/61.
Order 41, Rule 27, C.P.C. enables the appellate Court to admit additional evidence in the circumstances or situation therein mentioned one such being where the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause.
By a catena of decisions of this Court, it is well established that Order 41, Rule 27, C.P.C 'does not confer a right on the party to produce additional evidence.
But if the Court hearing the action requires any document so as to enable it to pronounce judgment, it has the jurisdiction to permit additional evidence to be produced.
The High Court has given cogent reasons why it felt impelled to permit production of registered sale deeds so as to enable it to pronounce judgment in the matter.
If the High Court considered the production of registered sale deeds essential so as to enable it to pronounce judgment, there is no reason why we should interfere with the discretionary power properly exercised by the High Court in the interest of justice.
Even otherwise, the High Court was justified in permitting additional evidence to be produced when it consisted of registered sale deeds.
Such additional evidence has to be read as part of the record.
Once these registered sale deeds are taken into consideration, a part of the decree of the trial Court granted in favour of the plaintiff awarding him possession of the land on the only ground that the sale deeds in respect of those pieces of lands were not produced, could not be maintained and the High Court rightly allowed the appeal of original defendant nos.8, 9 and 11 and no exception can be taken to it.
We may now turn to two contentions raised on behalf of the respondents.
440 The first contention on behalf of respondents is that the plaintiff being a benamidar, he is not entitled to seek possession of the land on the basis of his title as full and absolute owner of the suit lands.
The High Court in this connection has not specifically dealt with this contention though the trial Court raised a specific issue in respect of it and answered it in favour of the plaintiff '.
The High Court has, however, ob served that the plaintiff 's father was the real owner of the suit lands and he was managing the property although the patta was issued in the name of his son, the plaintiff.
The High Court then observed that Kazinm Yar Jung for the reason that he was an employee of the Nizam in order to avoid embarassment to himself nominally made the plaintiff, his minor son, the pattadar.
In the opinion of the High Court this is borne out by the fact that after executing the Power of Attorney, Ext.P 1 in favour of defendant 1, he wrote to the Tahsildar, Medak on 20th October 1949 that his son was a benamidar and that the lands may therefore be transferred in his name.
However, after making these observations the High Court has not chosen to non suit the plaintiff on the ground that he n was a benamidar Undoubtedly, Kazim Yar Jung was holding a high office in Nizam 's Government It is rational to believe that he may have influenced the decision of the Nizam to grant the land and that he may not have taken the patta in his own name.
The patta may, therefore, have been grant ed in favour of his minor son, the plaintiff.
Does that make the plain tiff a benemidar Section 82 of the , provides that where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration.
Now, there is no evidence to show that the patta was for consideration.
It is said that there was a grant of land and it is not clear that it was meant to be a gift of land.
Even if the Nizam in appreciation of the services rendered by the plaintiff 's father granted the land to the plaintiff, it could not be said that any consideration flowed from the father of the plaintiff so as to make the plaintiff a benamidar.
The genesis of the concept of benami is the consideration for a transfer must flow from one person and the transfer is taken in the name of the other person and the consideration so flowing for the transfer was not intended to be a gift in favour of the person in whose name the transfer is taken All these ingredients of benami are absent in this case and, therefore, the contention that the plaintiff was a benamidar cannot be accepted.
441 lt was also contended that the plaintiff came to the Court with an allegation that defendant 1 induced the plaintiff, his father and brother to execute a nominal Power of Attorney in favour of defendant No. 34, and defendants 1 and 34 in collusion with each other defrauded the plaintiff his property.
It was said that if defendants 1 and 34 were the perpetrators of the fraud, the plaintiff having compromised with them and withdrawn the appeal against them, the appeal would not survive against the rest.
There is absolutely no merit in this contention.
The plaintiff may have valid reasons for entering into a compromise with defendants 1 and 34 who might have made good a part of the loss suffered by the plaintiff.
But apart from the allegation of fraud, the suit was substantially based on the scope of authority conferred by Exts.P l and P 2 to sell lands and the acquisition of the title by the purchasers From the attorney defendant 34 in exercise of the authority conferred by Exts.
P l and P 2 and, therefore, a compromise with defendants 1 and 34 would not render the appeal against the rest of the defendants infructuous or untenable.
The third contention was that the plaintiff left India and his evidence having remained incomplete, the same could not be read in evidence.
After we explained the relevant documents, we are satisfied that there is no substance in this contention.
As all the contentions raised by the appellant fail, the appeal fails and is dismissed with costs.
N.V.K. Appeal dismissed .
| During the assessment year 1962 63, the corresponding accounting year being the financial year ending 31st March, 1962, in respect of goods partly of raw materials and partly of semi finished needles gifted by their collaborators in West Germany, the respondent assessee made entries in their books of account for the first time on 30th September 1961, as follows: Rs. 44.448.20 debited to the account of 'wire and strip ' and credited to the 'wire and strip Gift Account ' and Rs. 30,000 debited to the account of 'Semi processed needles ' and credited to the 'Semi processed Needles Gift Account '.
The assessee utilised these goods in the manufacture of finished products and sold the same in the market and the sale proceeds received by the assessee were credited in the trading account maintained in the books account of the business, since they represented revenue receipts arising from the sale of the finished products.
On 31st March 1962, the assessee closed the above two gift, accounts by transferring the respective sums of Rs. 41,448.20 and Rs. 30,000/ to the credit of the 'Capital Reserve Account ' and debited the aggregate sum of Rs. 74,448.20 to the trading account by making corresponding contra credit entries in the accounts of 'wire and strip ' and 'Semi processed Needles '.
The net effect of these entries was that the profit of the assessee was reduced by Rs. 74,448.20.
The income tax officer, in the course of the assessment of the assessee to income tax for the assessment year 1962 63 took the view that the debit of Rs. 74,448.20 was wrongly made in the trading account as on 31st March, 1962 since no monies were expended by the assessee in acquiring the raw materials and semi finished needles, but they were received by way of gift from the West German Collaborators and hence no amount was deductible in respect of the value of these goods.
The same view was taken by the Appellate Assistant Commissioner in appeal and on further appeal, the Tribunal also affirmed the same view.
But the High Court on a reference at the instance of the assessee, held that the value of these goods could not be treated as revenue receipt because they `had been received by way of gift and in any event, even if they constituted revenue receipt, they could "in no sense be income" since they were taken out of the ambit of taxability by sub section (3) of section 10 of the Income Tax Act, 1961.
The High Court accordingly answered the questions referred by the Tribunal in favour of the assessee and against the Revenue.
The Revenue thereupon brought the present appeal with special leave.
Dismissing the appeal, the Court ^ HELD: 1.
The cost of raw materials and semi finished needles received by the assessee from their West German Collaborators and introduced in the books of the business could not be said to be 'nil", but it would 372 be their market value as on 30th September 1961.
They were received by the assessee as capital assets and subsequently transferred to the business as part of its stock.
[375E G] Commissioner of Income Tax vs Shirinbai Kooka, 46 I.T.R. (S.C.) 61; and Commissioner of Income Tax vs Hantepara Tea Co. Ltd I.T.R. (SC) 258; applied.
Where an assessee converts his capital assets into stock in trade and starts dealing in them, the taxable profit on the sale must be determined by deducting from the sale proceeds the market value at the date of their con version into stock in trade (since this would be the cost to the business) and not the original cost to the assessee.
[375G H. 376A] In the instant case, the original cost of these raw materials and semi finished needles to the assessee was undoubtedly nil because these goods were received by the assessee from the West German Collaborators free of cost, but they were introduced in the business and converted into its stock on 30th September, 1961 and, therefore, their market value as on 30th September 1961 would represent the cost to the business and that would have to be taken into account in determining the profit arising from the sale of the manufactured products.
The entries made by the assessee in the books of account of the business on 30th September, 1961 clearly reflected this position.
The assessee debited the sums of Rs. 44,448.20 and Rs. 30,000/ representing respectively the market value of these raw materials and semi finished needles to the stock accounts of 'Wire and Strip ' and 'Semi processed Needles, which would clearly show that these goods were treated by the assessee as having been introduced in the business as part of its stock at their market value represented by the sums of Rs. 44,448.20 and Rs. 30,000/ [376A D] Commissioner of Income Tax vs Shirinbai Kooka, 46 I.T.R. (SC) 61; and Commissioner of Income Tax vs Hantepara Tea Co. Ltd. 89 I.T.R. (SC) 258; applied 3.
In principle, the position would have been the same if instead of giving raw materials and semi finished articles to the assessee free of cost the West German contractors had gifted sums of money to the assessee and the assessee had introduced these amounts in the business and an identical quantity of raw materials and semi finished products had been purchased for the business with these amounts.
The cost of raw materials and semi finished articles thus purchased would have been clearly liable to be deducted from the sale proceeds of the finished products manufactured out of them in determining the profit of the business.
[3376D F] In the instant case, the cost of the raw materials and semi finished needles.
to the business represented by the sums of Rs. 44,448.20 and Rs. 30,000/ debited in the respective accounts of 'Wire and Strip ' and 'Semi processed Needles ' was liable to be deducted from the sale proceeds of the finished products in arriving at the profit of the business.
It is true that initially on 30th September, 1961 the credit entries for the sums of Rs. 44,448.20 and Rs. 30,000/ were made in 'Wire and Strip Gift Account ' and 'Semi processed Needles Gift Account ' respectively and it this only on the last date of the account year, namely, 31st March, 1962 that these amounts were transferred 373 to the credit of the Capital Reserve Account.
But that cannot make and difference to the correct legal inference to be drawn from the proved facts because the nomenclature of the account or accounts in which the credit entries were made is not material but what is really decisive is that these amounts were debited to the respective accounts of 'Wire and Strip ' and Semi processed Needles ' as representing their real value on 30th September, 1961.
These raw materials and semi finished needles were introduced in the business as part of its stock at their real value represented by the sums of Rs. 44,448.20 and 30,000/ .
The aggregate amount of Rs. 74,448.20 made up of Rs. 44,448.20 and Rs. 30,000/ was, therefore, liable to be deducted in determining the profit of the business and it was rightly debited to the trading account.
[376F H, 377A C]
|
Appeals Nos.
6 to 12 of 1963.
Appeals from the judgment and decree dated February 2, 1959 of the Madras High Court in Writ Petition Nos.
1. 2, 202, 203, 204, 309 and 373 of 1958.
A. Ranganadham Chetty and A. V. Rangam, for the appellants (in all the appeals).
R. Gopalakrishnan, for the respondent (in C.A. No. 11/63).
section V. Gupte, Additional Solicitor General and R. H. Dhebar, for interveners Nos. 1 and 2.
M. C. Setalvad, N. section Bindra and R. H. Dhebar, for intervener No. 3.
G. C. Kasliwal, Advocate General, Rajasthan, R. H. Dhebar and B. R. G. K. Achar, for intervener No. 4.
938 March 3, 1964.
The Judgment of the Court was delivered by SHAH, J.
"Whether sections 2 and 3 of the Madras Lignite (Acquisition of Land) Act XI of 1953 which seek to amend the Land Acquisition Act 1 of 1894 in their application to acquisition of lignite bearing lands are invalid because they infringe the fundamental right under article 31 of the Constitution of owners of lands whose property is to be compulsorily acquired is the only question which falls to be determined in this group of appeals.
Investigations conducted by the Geological Survey of India in 1947 revealed deposits of lignite in the South Arcot District of the State of Madras, and exploratory mining operations were commenced by the Government of Madras.
Discovery of deposits of lignite led to speculation in lands.
On October 6, 1948, the Government of Madras issued a "Press Note" announcing that the Government proposed to undertake legislation reserving power to compel any person who had purchased land on or after a date to be prescribed in 1947 in the lignite bearing areas to sell such lands to the Government at the rate at which it was purchased.
The Government also advised the owners of the lignite bearing lands in the Vriddhachalam and Cuddalore taluks not to sell their lands to speculators.
On January 7, 1953, the Government of Madras published a Bill to amend the Land Acquisition Act 1 of 1894 in certain respects.
The Bill was duly passed by the State Legislature on June 2, 1953 and received the assent of the President.
It was published as an Act on June 10, 1953 and came into force on August 20, 1953.
By this Act substantially three provisions are made: (1) that compensation for acquisition of lignitebearing lands under the Land Acquisition Act as amended, is to be assessed on the market value of the land prevailing on April 28, 1947, and not on the date on which the notification is issued under section 4(1) of the Land Acquisition Act; 939 (2) power is reserved under section 17 of the Land Acquisition Act to take possession in cases of urgency of lands for the purpose of working lignite mines in the areas in which the Madras Lignite (Acquisition of Land) Act XI of 1953 extends; and (3) in assessing the market value of the land on April 28, 1947, value of any non agricultural improvements on the land commenced, made or effected after that date are not to be taken into account, even if such improvements were made before the date of publication of the notification under section 4(1) of the Land Acquisition Act.
Pursuant to this Act, notifications under section 4(1) of the Land Acquisition Act were issued between the months of January and May 1957 notifying for acquisition certain lands in Vriddachalam taluk of the South Arcot District.
These notifications were followed by notifications under section 6 of the Land Acquisition Act.
Between the months of May and November 1957 the Land Acquisition Officer made his awards under section 11 of the Land Acquisition Act assessing compensation on the basis of market value of the lads on April 28, 1947 and ignoring in the computation of compensation the value of houses built or other non agricultural improvements made on the land since that date.
The owners of the lands affected by these awards submitted petitions under article 226 of the Constitution to the High Court of Judicature at Madras challenging the validity of the awards on the ground that the provisions of Madras Act XI of 1953 violated the fundamental right of the owners of the lands under article 31(2) of the Constitution.
They claimed that the Land Acquisition Officer was bound to award compensation for acquisition of their lands and buildings at the market value prevailing on the respective dates of the notifications under section 4(1), and that awards valuing the lands at the market rate prevailing on April 28, 1947, and excluding the value of buildings constructed after that date and trees thereon were without jurisdiction.
The petitioners accordingly claimed that writs of mandamus be 940 issued directing the State of Madras and the Land Acquisi tion Officers to refrain from taking possession of the land& and buildings from the petitioners without payment of adequate compensation and for other appropriate relief.
The High Court upheld the contention of the petitioners and declared that the awards made on the basis of the provisions of Madras Act XI of 1953 could not be sustained.
Against the order passed by the High Court, these appeals have been preferred by the State of Madras, with certificate of fitness granted by the High Court under article 132 of the Constitution.
The Madras Act XI of 1953 makes an important departure from the scheme of the Land Acquisition Act 1 of 1894.
Under the Land Acquisition Act 1 of 1894, a person interested in any land.
compulsorily acquired is entitled to the market value of his interest in the land at the date of the publication of the notification under section 4(1), and this compensation includes the value of all improvements agricultural and non agricultural made in the land upto the date of the notification.
By Madras Act XI of 1953, compensation made payable for compulsory acquisition of land is the value of the land on April 28, 1947, together with the value, of any agricultural improvements made thereon after that date and before publication of the notification under section 4(1).
The result of the Madras Act is therefore to freeze for the purpose of acquisition the prices of land in the area to which it applies, and the owners are deprived of the benefit of appreciation of land values since April 28, 1947, whenever the notification under section 4(1) may be issued and also of non agricultural improvements made in the land after April 28, 1947.
Departure from the provisions of the Land Acquisition Act is challenged as illegal on the ground that it deprives the owner of the land of just compensation for compulsory acquisition of his property.
Madras Act XI of 1953 was passed before the Constitution (Fourth Amendment) Act, 1955 was enacted, and we have to deal with the question of the validity of the Act in the light of the constitutional provisions contained in article 31 before the constitutional amendment.
We may 941 :make it clear that for the purpose of this judgment, we express no opinion on the question whether it is possible by enacting legislation after the amendment of article 31(2) by the Constitution (Fourth Amendment) Act, 1955 (which is not given any retrospective operation) to provide that compensation for compulsory acquisition of land may be fixed on the basis of market value prevailing on a date Anterior to the date of the issue of the notification under section 4(1).
Article 31 before it was amended by the Constitution (Fourth Amendment) Act 1955, by its cls.
(1) and (2) provided: "(1) No person shall be deprived of his property save by authority of law.
(2) No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given.
" It was held by this Court in Chiranjit Lal Chowdhuri vs, Union of India and others(1) and The State of West Benga vs Subhodh Gopal Bose and others(2) that cls.
(1) and (2, of article 31 relate to the same subject of "eminent domain", By article 31 therefore every person was protected agains, deprivation, of his property save by authority of law, an( the law authorising taking possession or acquisition of property for public purposes had to fix the quantum o compensation, or to specify principles on which compensa tion was to be determined for the, property.
taken possession of or acquired.
Power to legislate,, in respect of compensa tion for acquisition and requisitioning of property was (1) ; (2) ; 942 contained in Entry 42 List III of the Seventh Schedule and read as follows : "Principles on which compensation for property acquired or requisitioned for the purpose of the Union or of a State or for any other public purpose is to be determined, and the form and the manner in which such compensation is to be given.
" The Constitution therefore conferred by article 31(2) fundamental right upon every person, protecting his property against compulsory acquisition otherwise than by authority of law, and without just indemnification for loss suffered by him.
In The State of West Bengal vs Mrs. Bela Banerjee and others(1) this Court observed that when under Entry 42 List III the Legislature was given discretionary power to, lay down the principles which should govern determination of the amount to be given to the owner of the property appropriated, such principles must ensure that what is, determined as payable must be a just equivalent of what the owner has been deprived of, and that subject to this basic limitation the Constitution allowed free play to the legislative judgment as to what principles should guide the determination of the amount payable.
The Court therefore held that the West Bengal Land Development and Planning Act, 1948, which was enacted primarily for the settlement of immigrants who had migrated into West Bengal due to, communal disturbances in East Bengal and which by section 8 provided that the compensation to be awarded for compulsory acquisition to the owner of the land was not to exceed the market value on December 31, 1946, was ultravires the Constitution and void under article 31(2) of the Constitution.
It was observed at p. 564 : "Turning now to the provisions relating to compensation under the impugned Act, it will be seen that the latter part of the proviso to section 8 limits the amount of compensation so as not to exceed the market 'value of the land (1) ; 943 on December 31, 1946, no matter when the land is acquired.
Considering that the impugned Act is a permanent enactment and lands may be acquired under it many years after it came into force, the fixing of the market value on December 31, 1946, as the ceiling on compensation, without reference to the value of the land at the time of the acquisition is arbitrary and cannot be regarded as due com pensation in letter and spirit with the requirement of article 31(2).
" That principle must apply in adjudging the validity of Madras Act XI of 1953.
It may be assumed that April 28, 1947, was the date on which lignite deposits were discovered in the areas to which the Act is extended.
But there is no true relation between the acquisition of the lands in these cases and fixation of compensation based on their value on the market rate prevailing on April 28, 1947.
Fixation of compensation for compulsory acquisition of lands notified many years after that date, on the market value prevailing on the date on which lignite was discovered is wholly arbitrary and inconsistent with the letter and spirit of article 31(2) as it stood before it was amended by the Constitution, (Fourth Amendment) Act, 1955.
If the owner is by a, constitutional guarantee protected against expropriation of ' his property otherwise than for a just monetary equivalent, a law which authorises acquisition of land not for its true.
value, but for value frozen on some date anterior to the acquisition, on the assumption that all appreciation in its value since that date is attributable to purposes for which the State may use the land at some time in future, must be, regarded as infringing the fundamental right.
Counsel for the State of Madras relying upon the following observation of Patanjali Sastri, C.J., in Mrs. Bela Banerjee 's case(1) at p. 564: "The fixing of an anterior date for the ascertainment of Value may not, in certain circumstances, be (1) ; 944 .lm15 a violation of the constitutional requirement as, for instance, when the proposed scheme of acquisition becomes known before it is launched and prices rise sharply in anticipation of the benefits to be derived under it, but the fixing of an anterior date, which might have no relation to the value of the land when it is acquired, may be, many years later, cannot but be regarded as arbitrary", submitted that a law which merely fixes the market value on a date anterior to the date on which the owner is expro priated of his land, as determinative of the market value on which the compensation is to be based, cannot without further enquiry be regarded as infringing article 3 1 (2) of the Constitution.
In our view this observation cannot assist the State of Madras in saving the provisions of Madras Act XI of 1953 from the vice of infringing the constitutional guarantee under article 31 (2) of the Constitution.
The right which is guaranteed is undoubtedly the right to just indemnification for loss, and appreciation in the market value of the land because of the proposed acquisition may in assessing compensation be ignored.
Even the Land Acquisition Act provides for assessment of compensation ,on the basis of market value of the land not on the date on which interest of the owner of land is extinguished under section 16, but on the basis of market value prevailing oil the date on which the notification under section 4(1) is issued.
Whether this rule in all cases irrespective of subsequent developments ensures just indemnification of the expropriated owner so as to be immune from attack, does not call for comment in this case.
But any principle for determination of compensation denying to the owner all increments in value between a fixed date and the date of issue of the notification under section 4(1 ), must prima facie, be regarded as denying to him the true equivalent of, the land which is expropriated and it is for the State to show that fixation of compensation on the market value on an anterior date does not amount to a violation of the constitutional guarantee.
No materials have been placed by the State before this Court ,which would support any such case.
945 it is true that, the Province of Madras had issued a 'Press Note" in 1948 announcing that the Government proposed to undertake legislation reserving the power to compel any person who had purchased land in the lignite bearing areas to sell such land to them at the rate at which it was purchased.
The only intimation given thereby to the owners of lands was that the Government may undertake legislation for the purpose of purchasing lands at the price at which the speculators in land may have purchased them.
There is no evidence that any scheme for acquisition of land for mining of lignite was prepared in 1947 by the Government of Madras.
The mining operations in 1947 must, in the very nature of things, have been exploratory.
The statement of objects and reasons for the Act clearly discloses that initially mining operations were started by the Government on a small area.
Assuming that in appropriate cases, fixation of a date anterior to the publication of the notification under section 4(1) for ascertainment of market value of the land to be acquired, may not always be regarded as a violation of the constitutional guarantee, in the absence of evidence that compensation assessed on the basis of market value on such anterior date, awards to the expropriated owner a just monetary value of his property at the date on which his interest is extinguished, the provisions of the Act arbitrarily fixing compensation based on the market value at a date many years before the notification under section 4(1) was issued, cannot be regarded as valid.
It is a matter of common knowledge that since the termination of hostilities in the last World War there has been an upward tendency in land values resulting in appreciation In some areas many times the original value of lands.
No attempt has been made by the State to prove that appreciation in the market value of lands in the area since April 1947 was solely attributable to a scheme of land acquisition of lignite bearing lands.
To deny to the owner of the land compensation at rates which justly indemnify him for his loss by awarding him compensation at rates prevailing ten years before the date on which the notification under section 4(1) was issued amounts in the circumstances to a flagrant infringement of the fundamental right of the owner of the land under article 31 (2) as it stood when the Act was enacted.
134 159 S.C. 60 946 The validity of the provision relating to fixation of compensation had to be adjudged in the light of the constitutional protection guaranteed at the date when the Act was brought into operation, and any restriction of the constitutional protection by subsequent amendment of article 31(2) which has not been given retrospective effect, must be entirely ignored.
The provision which denies to the owner of land compensation for non agricultural improvements made by him since April 28, 1947, also infringes the protection of article 31(2).
Under section 3(a) of the Land Acquisition Act "land" is defined as including benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth, and when tinder section 4(1) land is notified for acquisition, the acquisition is of the entirety of the interest of the owner in the land including underground rights if any, crops, trees and superstructures.
By the Madras Act the owner is deprived of the value of all non agricultural improvements including the value of non agricultural buildings, erected on the land after April 28, 1947.
It is not clear whether the non agricultural build ings constructed after the specified date are forfeited to the State on acquisition, or the owner is entitled to remove them.
In either case the owner is deprived of just value of his land including the superstructure, of which he is expro priated.
Denial to the owner of the land of the value of the structures constructed by him (even of those put up after April 28, 1947, with the knowledge that the Government may undertake legislation for the purpose of compulsory acquisition of the land) would still be denying to him just compensation for the loss suffered by him on account of compulsory acquisition of his holding, and would amount to infringement of article 31(2) of the Constitution.
We are therefore of the view that the provisions which require the Land Acquisition Officer and the Court to assess compensation of the land compulsorily acquired only on the market value of the land on April 28, 1947, together with the value of agricultural improvements on the land commenced, made or effected after that date, and before the date of the publication of the notification under section 4(1), 947 without taking into consideration the value of non agricul tural improvements made after that date, must be regarded as invalid.
We are not called upon to express any opinion on the question whether the power reserved under section 17 of the Land Acquisition Act as amended by section 2 of Madras Act XI of 1953 to take possession of lands under the emergency clause for the purpose of working lignite mines in the areas to which the Madras Lignite (Acquisition of Land) Act, 1953, extends is invalid.
No argument has been advanced by either side before us on this question.
Nor was the High Court called upon to consider the validity of that provision.
The appeals therefore fail and are dismissed.
The respondents in this group of appeals, except in appeal No. 11 of 1963, have not appeared in this, Court.
Therefore in appeal No. 11 of 1963 alone, the State of Madras will pay the costs of the respondent.
There will be no order as to costs in other appeals.
Appeals dismissed.
| The Income tax Officer (respondent No.(1) served a notice under section 22 of the Income tax Act on the appellant.
Upon the receipt of the notice, the appellant appeared before the Income tax Officer.
The appellant pleaded before the Income tax Officer that it did not fall under any of the five categories of assessees under section 3 of the Income tax Act.
The appellant also raised the contention that it was a local authority exempt from income tax.
All these contentions were rejected by respondent No. 1 with the result that the impugned orders of assessment came to be passed.
The appellant filed Writ Petitions before the High Court in which it challenged the impugned orders of assessment passed by respondent No. 1.
In its Writ Petitions, the appellant claimed an ,order, writ or other appropriate direction quashing the assessment orders passed by respondent No. 1.
The High Court dismissed these writ petitions.
The High Court held that the appellant could not claim the exemption under article 289(1) because it was not a state owned Corporation.
The High Court granted a certificate under article 133 of the Constitution and hence the appeal.
Held: (i) article 289 of the Constitution consists of three clauses.
The first clause confers exemption from union taxation on the property and income of a State.
Clause (2) then provides that the income from trade or busi ness carried on by the Government of a State or on its behalf which would not have been taxable under cl.
(1), can be taxed, provided a law is made by Parliament in that behalf.
In other words cl.
(2) is an exception to cl.
Clause (3) then empowers Parliament to declare by law that any trade or business would be taken out of the purview of cl.
(2) and restored to the area covered by cl.
(1) by declaring that the said trade or business is incidental to the ordinary functions of Government.
In other words, cl.
(3) is an exception to the exception prescribed by cl.
(ii) A trading activity carried on by the corporation (appellant) is not a trading activity carried on by the State departmentally, nor is it a trading activity carried on by a State through its agents appointed in that behalf because according to statute the Corporation has a personality of its own and this personality is distinct from that of the State or other shareholders.
All the relevant provisions of the impugned Act also emphatically bring out the separate personality of the Corporation.
Section 30 of the Act also does not suggest that the income of the 18 Corporation is the income of the State.
All that section 30 requires is that a part of that income may be entrusted to the State Government for a specific purpose of road development.
Therefore, the income derived by the appellant from its trading activity cannot be said to be the income of the State either under cl.
(1) or cl.
(2) of article 289.
The American doctrine of the immunity of State agencies or instrumentalities from Federal taxation has no application to the present case.
Akadasi Padhan vs State of Orissa [1963] Supp. 2 S.C.R. 691, distinguished.
Mark Graves, John J. Merrill and John P. Hennessy vs People of the State of New York Upon the Relation of James B.O 'keefe, ; and Clallan County vs United States of America, ; , no application.
State of West Bengal vs Union of India [1964] 1 S.C.R. 371, relied on.
M 'Culloch vs Maryland, ; , Bank of Toronto vs Lambe and Webb vs Outrim [1907] A.C. 81, referred to.
Tamlin vs Hansaford, , relied on.
(iii)It is hardly necessary for the Act to make a provision that tax,if chargeable would be paid.
In fact, the Companies Act which deals with companies does not make such a specific provision, though no one can seriously suggest that there would be repugnancy between the provisions of the Companies Act and the Income tax Act.
There is no repugnancy between the charging section of the Income tax Act and sections 29 and 30 of the Act.
All that sections 29 and 30 of the impugned Act purport to do is to provide for the administration of the funds vesting in the Corporation and their disposal.
These provisions are not inconsistent with the liability to pay tax which is imposed by the Income tax Act.
|
Appeal No. 979 of 1968.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated December 5, 1967 of the Gujarat High Court in Election Petition No. 3 of 1967.
section T. Desai, A. K. Verma, A. L. Barot, and J. B. Dadachanji, for the appellant.
Purshottamdas Trikamdas and I. N. Shroff, for respondent No. 1.
403 The Judgment of Sum and BACHAwAT, JJ. was delivered by SIKRI, J. HEGDE, J. delivered a separate Opinion.
Sikri, J.
This appeal under section 116 A of the Representation of the People Act, 1951, is directed against the Judgment and order of the High Court of Gujarat in Election Petition No. 3 of 1967, setting aside the election of Kanti Prasad Jayshankar Yagnik, appellant before us, to the Gujarat State Assembly from Mehsana State Assembly Constituency under section 123(2), section 123(3) and section 100(1)(b) of the Representation of the People Act, 1951hereinafter referred to as the Act.
The High Court held that certain speeches made by Shambhu Maharaj, with the consent of the appellant, amounted to 'corrupt practices ' within the meaning of sections 123(2) and 123(3) of the Act.
Since we are in agreement with some of the conclusions arrived at by the High Court it is not necessary to deal I with all the speeches made by Shambhu Maharaj, but only with the speeches which the High Court held to amount to 'corrupt practices ' within the meaning of sections 123 (2) and 123 (3).
Before we set out the impugned passages from the speeches we may give a few preliminary facts.
The poll for the election was taken on February 21, 1967, and the result of the election declared on February 22, 1967.
Purshottamdass Ranchoddas Patel, the petitioner in the High Court and respondent before us, secured 16,159 votes whereas the appellant_secured 23,055 votes.
The other candidates, who were respondents to the petition secured 720 votes, 1,017 votes and 454 votes, respectively.
The petition out of the which this.
,appeal arises was filed on April 5, 1967, and the petitioner prayed for the relief that the election of the appellant be declared void and further prayed that he be declared duly elected to the Assembly ' Various grounds were urged in the petition but we need only deal with the ground that the appellant and his agents arranged public meetings of Shri Shambhu Maharaj on February 18, 1967, at various villages which were part of the Mehsana Assembly constituency, and Shambhu Maharaj made a systematic appeal in his speeches to a large section of the electors to vote for the appellant on ground of religion, caste, and community, and the electors were told that it would be an irreligious act to vote for the petitioner who was a Congress candidate as Congress allowed slaughtering of cows and bullocks.
It was also alleged that Shri Shambhu Maharaj had used undue influence and interfered with the free electoral rights of electors by inducing or attempting to induce them to believe that they would become object of divine displeasure or spiritual Censure by his speeches.
404 The petitioner sought to prove the speeches by producing members of the Police Force, as witnesses, who had under instructions of Government taken down notes of the, speeches and reported them to their officers.
The High Court relied on the reports of these members of the Police Force and held that their reports were correctly recorded and fairly represented the speeches made by Shambhu Maharaj.
In this connection, the High Court discarded the testimony of the petitioner 's witnesses (P.W.s 25 to 33) on the ground that it would be safe not to accept the evidence of artisan witnesses unless it was corroborated by independent witnesses.
The learned counsel,for the appellant, Mr. section T. Desai, con tends, first, that the reports made by the members of the Police Force are not admissible in evidence, and secondly, that in the circumstances of the case no weight should be attached to these reports.
We may first deal with the question of the admissibility of, the evidence before we set out the speeches.
The learned counsel contends that under the Indian Evidence Act written reports of speeches can only be used in two ways; one, to refresh a witness 's memory under section 159, and secondly, under section 160 after satisfying two conditions : (1) that the witness has no specific recollection of the facts themselves and (2) the witness says that he is sure that the facts were correctly recorded in the document.
He urges that in this case the reports were not used to refresh any witness 's memory, and that the conditions requisite under section 160 had not been satisfied.
it is true that these reports have not been ' used for the purpose of refreshing the memory of any witness under section 159, but these have been used under section 160.
We may, here set out sections 159, 160 and 161 of the Indian Evidence Act.
"section 159.
A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.
The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct.
Whenever a witness may refresh his memory by reference to any document, he may, with the permission ,of the Court, refer to a copy of such decument 40 5 Provided the Court be satisfied that there is sufficient reason for the non production of the original.
An expert may refresh his memory by reference to professional treatises.
section 160.
A witness may also testify to facts mentioned in any such document as is mentioned in section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the, document.
section 161.
Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross examine the witness thereupon.
" In this case it is clear that the reports were written by the witnesses themselves at the time of the speeches or soon afterwards when the speeches were fresh in their memory.
It seems to us that it is not necessary that a witness should specifically state that he has no specific recollection of the facts and that he is sure that the facts were correctly recorded in the document, before the document can be used under section 160.
It is enough if it appears from his evidence that these conditions are established.
In this particular case the witnesses were giving their testimony in Court after a lapse of nearly nine months and one would have to have super human memory to specifically recollect the details of the speeches, especially when the witness may have attended and reported many similar meetings as a part of his duty during the election campaign.
It may be implied in this case that the witnesses had no specific recollection of the facts.
The second requirement would be satisfied if the Court comes to the conclusion that the witness was in a position to correctly record the facts in the document.
Are then the requirements of section 160 satisfied in this case ? As an example we may consider the evidence of P.W. 7, who testified regarding the speech, exhibit J., delivered at village Motidav.
He stated that Shambhu Maharaj addressed the meeting at Motidav at about 5.30 p.m. on February 18, 1967, and the appellant was present at that meeting; Maganlal A. Patel was also present at the time when Shambhu Maharaj was speaking; while the speeches were being delivered he was making notes of what was being spoken; in this manner he had written out a report regarding all that had happened at the meeting; after returning to Mehsana he submitted his report of the meeting to P.S.I. Choudhary.
He was shown two reports about the meetings at Motidav, and he stated 406 Both these reports, part of 'X ', are in my handwriting.
I wrote out the contents of these two reports at Motidav when the meetings were going on." (The two reports put in and marked exhibit "J" collectively).
In cross examination questions were directed to establishing that the reports were not exact reports.
He stated that he was taking down all the speeches of Shambhu Maharaj who was speaking at medium pace and he wrote whatever Shambhu Maharaj spoke.
He further stated that he was writing down from memory immediately after the words were spoken by Shambhu Maharaj.
He admitted that "it is true that every word spoken by Shambhu Maharaj was not taken down by me in my report but what I have taken down was in fact spoken by him." He, however, added that "it not true that what I have written out in exhibit 'J ' was not written down at Motidav village.
" On this evidence it seems to us that it is quite clear that both the conditions required by section 160 have been compiled with.
While the speech was delivered on February 18, 1967, he was giving his evidence on November 7, 1967.
It is implicit that he had no specific recollection of the speeches, and the second condition is also satisfied because he made notes and then made out the report from his notes.
It may be that the counsel would have been well advised to have read out exhibit 'J ' rather than produce it as an exhibit, but this is apparently done in some Indian Courts to save.
time and it is now too late in the day to condemn such practice, specially as it is a difference without any substance.
It is true that the report is, strictly speaking, not substantive evidence as such, and the document can only be used as a part of the oral evidence sanctified by the oath.
The position seems to be the same in some States in U.S.A., vide Wigmore on Evidence (Third Edition; Vol.
III pp.
97 98, extracted below : "1871, Per Curiam in Moots vs State, 21 Oh.
St. 653: The entry in the book and the oath of the witness supplement each other.
The book was really a part of the oath, and therefore admissible with it in evidence." "1879, Earl, J., in Howard vs McDonough : After the witness has testified, the memorandum which he has used may be put in evidence, not as proving anything of itself, but as a detailed statement of the items testified to by the witness.
The manner in which the memorandum in such a case may be used is very much in the discretion of the trial Judge." 407 "1882, Cooley, J., in Mason vs Phelps, , , 837 : After she had testified that she knew it to be correct, she might have read the entries or repeated them as her evidence.
Showing the book was no more than this". "1886, Smith, C.J., in Bryan vs Moring, 94 N.C. 687 : The memorandum thus supported and identified becomes part of the testimony of the witness, just as if without it the witness had orally repeated the words from memory.
" There is much to be said for the modern doctrine in some of the States in the United States, which "seems to be that such documents are admissible evidence and that the Court will not go through the useless ceremony of having the witness read a document relating to a fact of which he had no present recollection, except that he knew it was correct when made." (see McCormick on Evidence; p. 593; footnote 3).
The learned counsel relied on the dissenting judgment of Sankaran Nair, J., in Mylapore Krishnasami vs Emperor(1) where he observed : "If therefore the constable has not recorded correctly the words used by the speaker but only his impression, then the notes would be inadmissible under section 160 of the Indian Evidence Act to prove the words used.
They may be admissible to prove the impression created in the mind of the constable, which is very different.
" We are unable to appreciate how this passage assists the appellant.
If it is proved that the constable did not correctly record the words, a fortiori one of the conditions of section 160 has not been satisfied and the writing cannot be used to prove the words.
The learned counsel also referred to the decision of the Madhya Pradesh High Court in Mohansingh Laxmansingh vs Bhanwarlal Rajmal Nahata(2).
The High Court seems to have held that on the facts, the statements prepared by the witness in that case did not become primary evidence of the speech said to have been delivered by the speaker and cannot be used as such.
Later on the High Court seems to have held that the notes were taken down for a particular purpose, to wit, for an election petition, and raise a reasonable suspicion that what the witness recorded was not a correct record of the speech.
If the High Court meant to say that Ex P 12 (the notes in that case) could not be used (1) ; 395.
(2) A.I.R. 1964 M.P. 137,146.
408 under section 160 we must hold that the case was wrongly decided, but if the High Court meant to say that there was suspicion that the speech was 'not a correct record then nothing can be said against the decision on this point.
Blacker, J. in Sodhi Pindi Das vs Emperor(1) held, relying on Jagan Nath vs Emperor(2) that it is essential that the witness must state orally before the Court that although he had no specific recollection of the facts themselves, he was sure that the facts were correctly recorded in the document.
We are unable to agree with this interpretation.
As we have already stated, if the requisite conditions can be satisfied from the record, the lack of an express declaration by witness does not make the evidence inadmissible.
In Public Prosecutor vs Venkatarama Naidu(3) Mockett, J., rightly dissented from the judgment of the Lahore High Court in Sodhi Pindi Das vs Emperor(1).
In England the Law of Evidence has been changed and many of such documents made directly admissible (see Phipson on Evidence, Tenth Edition, Ch. 22).
It seems to us that on the facts the report, exhibit J., was properly used under section 160 of the Indian Evidence Act.
The question of the weight to be attached to the various reports of the speeches is another matter and we will deal with the question presently.
The High Court has found three speeches to constitute " corrupt practices".
The following three passages in exhibit 'J 'speech delivered by Shambhu Maharaj at village Motidav on February 18, 1967 were complained of by the learned Counsel in the High Court : "(1) I will say one fact and that is that at present the Congress is stating everywhere that nobody else will make the people happy except themselves.
But I say that apart from God no other Government either Congress or Swatantra Party can make people happy.
An agriculturist may have one bigha of land (about half an acre) and he might have sown wheat but if there is heavy frost or locusts or if one bullock worth Rs. 1000/ dies, Government may give him money, may give him bullock, but I do not think that that man can be happy; but nature can make him happy.
Today in our India, everyday 33,000 cows are being slaughtered throughout the country.
Ten to eleven lacs of bullocks are being slaughtered during the year and in Ahmedabad Town alone 10,000 bullocks are slaughtered.
(1) A.I.R. 1938 Lah.
(3) I.L.R. 3.
(2) A.T.R. 409 (2) This unworthy Congress Government has cut, the nose of Hindu Society.
Sant Fateh Singh, the religious preceptor of the Sikhs, fasted for 10 days; where as Jagadguru fasted for 73 days, still this Government is not even thinking of opening negotiations.
This un worthy Government accepted the contention of the Sikhs after the fast of IO days; whereas in spite of the penance undertaken by Jagadguru by his fast of 73 days, the Government has not considered any topic in this connection.
Your Jagadguru had full confidence that, except for ten crores who are the followers of the Congress, twenty to thirty crores from the Hindu Society would help him.
(3) For example, if any Maulvi from Mucca had fasted for 73 days and had given such a mandate to our Muslim brothers, then would they have voted for the Congress.
That you have to consider.
In the same manner, if Fateh Singh, the religious leader of Sikhs, had fasted for 73 days, would they (Sikhs) have voted for the Congress ? In the same manner if there were Parsis or Christians, then they also would vote for their religious preceptor.
This is what you have to consider.
The mandate of your religious preceptor is that do not cast your vote for anyone, the mandate of the Jagadguru is that let cows be slaughtered, let bullocks be slaughtered.
In Gujarat State though there is ban, still bullocks are allowed to 'be slaughtered, the bullocks which give every individual happiness throughout the life.
This Government asks for votes in the name of the 'bullocks (the Congress Party election symbol being a pair of bullocks with yoke on) and I am, therefore, having an experience.
Do not vote for the Congress and by putting the mark of vote on the symbol of bullocks amounts to cutting the throat of a bullock by a knife symbolized by your vote.
It is my mandate that you should not do this dastardly act.
" The High Court did not find the first two passages to constitute "corrupt practices".
The third passage was held by the High Court to constitute "corrupt practice" on the ground that "though there is no proof that Shankaracharya had any religious following as such in this particular constituency, there is ,no mandate in writing from the Jagadguru and there is no direct address to his followers by the Jagadguru, Shambhu Maharaj has clearly appealed to the Hindu voters as such not to vote for the Congress Party lest they might be betraying their religious leader, particularly when he had fasted for 73 days ' in a cause which had some basis in the religious beliefs of the Hindus.
" 410 We are unable to agree with the High Court in this respect.
The decision of this Court in Ram Dial vs Sant Lal(1) is clearly distinguishable because there it was held by this Court that Shri Sat Guru wielded great local influence among the large number of Namdharis who were voters in the Sirsa constituency.
In the present case there is no proof that Jagadguru Shankaracharya of Puri was the religious head of the majority of the electors in this constituency or exercised great influence on them.
It cannot be held on the facts of this case that an ordinary Hindu voter in this constituency would feel that he would be committing a sin if he disregarded the alleged directive on the Jagadguru.
One other ground given by the High Court is that "there can be no doubt that in this passage (passage No. 3) Shambhu Maharaj had put forward an appeal to the electors not to vote for the Congress Party in the name of the religion.
" In our ,opinion, there is no bar to a candidate or his supporters appealing to the electors not to vote for the Congress in the name of religion.
What section 123(3) bars is that an appeal by a candidate ,or his agent or any other person with the consent of the candidate or Ms election agent to vote or refrain from voting for any person ,on the ground of his religion, i.e., the religion of the candidate.
The following four passages in exhibit K, a speech delivered by Shambhu Maharaj at Kherwa after midnight of February 18, 1967, were objected to : "(1) The Congress says that it has brought happiness and will give happiness in future; but even a father cannot give happiness to his son, nor can a son give happiness to his father.
Giving happiness rests in the hands of God.
But God gives happiness where there is religion. 'He does not give happiness to the irreligious.
(2) Formerly there were no famines.
Possibly once in 100 years there might be one famine.
As against that nowadays every year there is some natural calamity like a famine.
Either there is no rain or there is frost or there is visitation of locust or there is some disease in the crops and some calamity or the other is constantly visiting us.
The reason for this is that Congress permits slaughter of 33,000 bullocks everyday.
When slaughter of cows is banned, bullocks are allowed to be slaughtered.
In Gujarat 12,000 bullocks are being slaughtered.
(3) Nobody would sit till 12 30 at night to listen to any talks by the Congress walas.
But I have come (1) [1959] Supp. 2 section C. R. 748. 411 to tell the public, which is fond of its religion, to elect the Swatantra Party, so that the slaughter of bullocks might be stopped and all people who are fond of their religion are also keeping away till 12 30 at night.
(4) Vijaykumarbhai has gone.
A Brahmin minister must be there and hence Kantilalbhai is going to be a minister, hence vote for him.
We must have at least one minister who is a Brahmin.
Hence vote for Kantilalbhai.
At the same time vote for Bhaikaka and H.M. Patel by putting your voting mark on the star.
" The High Court held the first two passages read together to constitute "corrupt practice" on the ground that "they amounted to interference with the free exercise of the electoral right of voters by holding out threats of divine displeasure and spiritual censure.
" The High Court held that in these passages there was a direct causal relationship between the cow slaughter and the natural calamities and this clearly showed that the: voters were told that if they did not want such natural calamities to visit them they should not vote for the Congress Party and thug avoid the divine displeasure which was responsible for these natural calamities.
It seems to us that this is not a fair reading of these two passages.
Cow slaughter is not mentioned in these passages except to say that sow slaughter is banned in Gujarat.
The causal relationship, if any, exists between slaughter of 33,000 bullocks every day and natural calamities.
This, in our view, cannot amount to constitute "corrupt practice" within section 123 (2) proviso (a) (ii) 'Me law does not place any bar on describing a party as irreligious or saying that because that political party is irreligious natural calamities have resulted because of its disregard of religion.
We do not find anything objectionable in the third passage because here again it is only an appeal to elect the Swatantra Party because the people in that party are fond of their religion.
The last passage in exhibit 'K ' clearly fell within the mischief of section 123(3).
The High Court in this connection observed: .lm15 " The reference to Vijaykumarbhai is to Vijaykumar Trivedi, who was a Brahmin and was a minister in the Gujarat Government till March 1967, and when this speech was delivered.
The reference to Kantilalbhai is to the first respondent, who is also a Brahmin and the reference to Bhaikaka is to Bhailalbhai Patel, leader of the Swatantra Party and H.M. Patel is another leader of the Swatantra Party and what Shambhu Maharaj was asking in this connection was that it was necessary that there should be one Brahmin in the Gujarat State Ministry and if one Brahmin, 412 Vijaykumar Trivedi, was to leave the ministry, another Brahmin Minister, viz., the first respondent should be first elected so that he might get a seat in the Legislature and thereafter become a minister, and thus it is clear that in the passage, Shambhu Maharaj was asking the people to vote for the first respondent because he was a Brahmin by caste.
It has been stated as a categorical statement that there must be at least one Minister, who was a Brahmin.
Under section 123 (3) of the Act, an appeal by any person to vote for any person on the ground of his caste or community is a corrupt practice, provided, of course, that such person has made such appeal with the consent of the candidate concerned.
I will come to the question of consent a bit later on, but it is clear that in this particular passage an appeal was being made to the electors to cast their votes for the first respondent because the first respondent is a Brahmin and also because of the promise, which had been put forward in this passage, that there should be at least one Brahmin Minister in the Ministry.
I may point out that so far as the petitioner is concerned, the petitioner is a Patidar and it is in the context of this background that an appeal is made in the name of caste of the first respondent and the people are asked to vote for the first respondent, because he was a Brahmin.
" It seems to us that the High Court is correct in drawing the inference that Shambhu Maharaj was asking his voters to, vote for the first respondent, because he was a Brahmin.
Shambhu Maharaj is reported to have adopted the same theme in exhibit 'P ' when he said that "Vijaykumarbhai had gone out and Kantilalbhai is going to be the Minister.
" Following three passages were objected in exhibit 'P ', a speech made at Dangerwa: "(1) The time of election has arrived.
The Congress Party is carrying on its propaganda desparately but what I want to say is that if Swatantra Party comes into power then it will (not turn your roof tiles into gold.
Only God gives happiness.
There is frost, there is rust in the crops, there is excess of rains, there is a famine all these are due to the workings of God.
Every day twenty four crores of cows are being slaughtered, then how God will tolerate that and how will you get happi ness ? 413 (2) Look at the Congressmen who are destroyers of Hindu Religion.
(3) Every year we get cow or the other natural calamity like excessive rain, or failure of rain or earthquake.
This happens because they ask for votes in the name of live bullocks, whereas they get the bullocks slaughtered.
The symbol should be of butcher and except ruthless and hard hearted Congress nobody else will get bullocks slaughtered.
" It seems to us that the first and the third passages, read together, constitute an attempt to induce the electors to believe that they would become objects of divine displeasure if they voted for the Congress and thereby allowed cow slaughter to be continued.
Hidayatullah, C.J., in Narbada Prasad vs Chhagan Lal(1), observed : "It is not necessary to enlarge upon the fact that cow is venerated in our country by the vast majority of the people and that they believe not only in its utility but its holiness.
It is also believed that one of the cardinal sins is that of gohatya.
Therefore, it is quite obvious that to remind the voters that they would be committing the sin of, gohatya would be to remind them that they would be objects of divine displeasure or, spiritual censure.
" In the first and third passages of exhibit 'P ', therefore there is clear implication that if you vote for the Congress who are responsible for 24 crores of cows being slaughtered then God will be displeased; in other words there will be divine displeasure and the voters will not get happiness.
The second passage does not seem to be objectionable and the High Court has not found it to be so.
The learned counsel for the appellant contends that very little weight should be attached to the speeches because the reports were not taken in shorthand but from notes and it is very difficult to be certain of what were the ' exact words used by Shambhu Maharaj.
The High Court examined the speeches, Exs. 'I ', 'J ' 'K ', 'L ', and 'P ', in connection with this question and came to the conclusion that common topics, common language and common approach existed in all the speeches, and this indicated that Shambhu Maharaj did deliver the speeches.
Further., according to the High Court, the reports were submitted by different constables at different times and to different Police Station and the learned Judge found that there could possibly be no consultation between the Various police constables who took down the state (1) ; 8 Sup.
C.I./69 8 414 ments, and that the totality of the effect emerging from different reports made the reports credible.
We agree with the conclusions arrived at by the High Court.
It is true that the exact words were not taken down by the various police constables, but the similarity of approach, appeal and the attack on the Congress is remarkable and in these circumstances it must be held that the police constables correctly reproduced the substance of the speeches.
It is pot necessary in these cases that exact words must be reproduced before a speech can be held to amount to "corrupt practice".
The learned counsel further contends that the appellant 's consent to these speeches had not been proved.
We agree with the High Court that there is no force in this contention.
The High Court observed : "As shown in the handbill setting out the pro gramme, the manuscript of which was written out by the first respondent himself in consultation with Maganlal Abram Patel, this tour programme had been arranged to bring success to the first respondent in his election contest.
Shambhu Maharaj was touring these villages specifically so that the first respondent might succeed in his contest.
Further it would be natural on the part of the first respondent to take advantage of being seen in the presence of a good speaker like Shambhu Maharaj.
Some of the meetings of Shambu Maharaj appear to have been well attended.
It is highly probable that the first respondent accompanied Shambhu Maharaj.
To my mind, therefore, it is clear that the first respondent had accompanied Shambhu Maharaj and was present in each of the meetings at MotiDav, Kherwa and Dangerwa when Shambhu Maharaj delivered speeches at these three villages. .
In the instant case also, the first respondent, according to the conclusion that I have reached, was present at the meetings which were addressed by Shambhu Maharaj at MotiDav, Dangerwa and Kherwa and in each of these three meetings at least, according to the conclusions reached by me, Shambhu, Maharaj in the course of his speeches had committed breaches of the provisions of section 123(2) and section '123(3) of the Act. .
Under these circumstances, it is clear to my mind, judging by the manner in which the first res pondent was touring with Shambhu Maharaj.
the manner in which tour programme was arranged and judging from the fact that this tour was specially arranged to bring success to the first respondent, that the first respon 415 dent did consent to the commission of the breaches of the proviso of section 123(2) and section 123(3) of the Act by Shambhu Maharaj.
" We may add that many police witnesses depose that the appel lant was present and it has not been shown to us that he dissociated himself with any of the remarks in the speeches.
In the result the appeal fails and is dismissed with costs.
Hegde, J. I agree that the statements contained in Exh.
P amount to a corrupt practice under section 123(2) of the Representation of the People Act and also agree that those statements were made with the consent of the returned candidate.
Hence this appeal has to be dismissed but I am unable to agree that before a statement can be considered as an attempt to induce an elector to believe that he will be rendered an object of spiritual censure if he acts in a particular manner that statement must have been made by a person who is a religious head of the majority of the electors in the constituency concerned.
What section 123(2) requires is to induce or attempt to induce "an elector" which means even a single elector that he will be rendered an object of spiritual censure if he exercises or refuses to exercise his electoral right in a particular manner.
But undoubtedly the inducement or an attempt to induce complained of should be such as to amount to a direct or indirect interference or attempt to interfere with the free exercise of electoral right.
Whether a particular statement comes within section 123 (2) or not depends on various factors such as the nature of the statement, the person who made it and the persons to whom it is addressed.
No doubt the nature of the statements in question is of utmost importance.
They may exploit well accepted religious beliefs but that is not the only thing that comes within the mischief of section 123(2).
A respected religious preacher may induce or attempt to induce the illiterate and superstitious voters who form the bulk of our voters that they will become the object of divine displeasure if they do not exercise their franchise in a particular manner.
His statements may not have any support from the religious books but yet they may amount to a corrupt practice in law.
I see no justification to cut down the scope of section 123 (2).
It will not be in public interest to do so.
I am unable to agree that the appeal to vote (in Exh.
K) for the appellant on the ground that he is likely to be a Minister as according to Shambhu Maharaj there should be at least one Brahmin Minister in the cabinet is an appeal to vote on the ground of the appellant 's caste.
There is no use hiding the fact that communal and regional representations in all our political institutions have become a must.
Shambhu Maharaj merely gave expression to that fact from public platforms.
One may not appreciate his 416 campaigning for that point of view but I am unable to agree that his statements in that regard amount to corrupt practice under section 123 (3).
Those statements cannot be considered as an appeal to vote on the basis of the appellant 's caste.
The caste of the appellant has come into the picture incidentally.
V.P.S. Appeal dismissed.
| The first respondent, who was the Chief Minister of the State, and the first appellant were candidates for election to the Mysore Legislative Assembly from Shiggaon constituency.
The notification fixing the time schedule for the elections fixed 20th January 1967, as the last date for filing nominations, 21st as the date of scrutiny, and 23rd as the last date for withdrawal of candidature.
The first respondent, had also filed his nomination at two other places, Bagalkot and Hospet, and validly made the affirmations required by article 173 (a) of the Constitution, at those places on the 19th and 20th January.
He also made the affirmation before the Returning Officer of the Shiggaon constituency on the date of scrutiny, that is, 21st January.
The first respondent was declared elected unopposed on the date of scrutiny on the ground that all other candidates, including the first appellant, had withdrawn their candidature.
The first appellant challenged the first respondent 's election on the grounds that the first respo ndent was disqualified for failure to make the affirmation under article 173(a) before filing the nomination paper in Shiggaon constituency, that the withdrawal from candidature of the first appellant was attempted to be obtained by inducement, threats and undue in and was in fact procured with the connivance of the Returning Officer, and that the first respondent committed other irregularities in the filing of his nomination.
It was alleged that one P was responsible for the corrupt practices with the consent of the first respondent.
P was not examined as a witness by the respondents.
The first appellant filed an application to examine P as a court witness, on the ground that the appellant could not examine him as his own witness since he would be hostile to the appellant.
The High Court rejected the ;application.
The High Court, after rightly repelling the contention that the affirmation should have been made prior to the filing of the nomination, held that the affirmation made prior to scrutiny was sufficient compliance with the requirements of article 173(a), and that the charges of corrupt practice of undue influence and bribery against the first respondent, and the connivance of the Returning Officer in relation to the corrupt practices and irregularities, were not proved.
In appeal to this Court, it was contended that : (1) This Court, in Pashupati Nath Singh vs Harihar Prasad Singh, ; , held that the affirmation should be made before the date of scrutiny, so that, in the present case, it should have been made at the latest by the mid 525 night between 20th and 21st January; and (2) On the failure of the first respondent to examine P an adverse inference should have been drawn against the first respondent, and that the High Court erred in not summoning P as a court witness.
HELD:(1) (a) Since the first appellant was permitted to raise the new ground based upon the decision in Pashupati Math Singh 's case, the first respondent should not be debarred from putting forward his alternative plea that article 173(a) was satisfied on the basis of the affirmations made at Bagalkot and Hospet.
[532 E F] (b)The notification issued by the Election Commission in pursuance of article 173(a) stated that the affirmation should be made before the Returning Officer or Assistant Returning Officer for that constituency.
In using the expression 'that constituency ', the intention of the Election Com mission was that the affirmation must be made before the Returning Officer or Assistant Returning Officer of that particular constituency from which the candidate was seeking election to the Legislature of the State, whether it be an Assembly Constituency or 'a Council Constituency.
[534 A B] (c)When the first respondent made his affirmations on the 19th and 20th before, the Returning Officer at Bagalkot and Hospet respectively, he was a candidate nominated for election from those constituencies.
Once he made such an affirmation before one of the persons authorised by the Election Commission he had fully complied with the requirements of article 173(a), and thereupon, became qualified to be a candidate for election to the Mysore Legislative Assembly.
[534 C E].
The purpose of article 173(a) is to ensure that any person, who wants to be a member of a Legislature of a State, must bear true faith and allegiance to the Constitution as by law established and undertake to uphold the sovereignty and integrity of India, and, to ensure this, he must make an oath or affirmation.
The Article requires one oath or affirmation in accordance with the form set out in the Third Schedule to the Constitution so as to 'remove the disqualification from being a candidate for election to the Legislature of the State.
The Article does not mention that the making of oath or affirmation is to be preliminary to the validity of candidature in each constituency, and the Article does not require that the qualification must be acquired separately in respect of each constituency from which a candidate was seeking election.
Once the oath or affirmation is made before a competent authority in respect of one constituency, the candidate becomes bound by that oath or affirmation even if he gets elected to the Legislature from a different constituency [534 E H; 535 A B] (2)In the present case, the circumstantial evidence indicated that the version put forward on behalf of the appellants could not be true.
therefore, the High Court was justified in holding that the appellants ' case was shown to be false by other evidence, so that, there was no compelling reason for the High Court to examine P as a court witness or to draw an adverse inference against first respondent for his failure to examine P as a witness.
[540 G H; 541 A] Dr. M. Chenna Reddy vs V. Ramachandra Rao, C.A. No. 1449/68 dt.
17 12 1968, R. M. Seshadri vs G. Vasantha Pai, ; and Nani Gopal Swami vs Abdul Hamid Chowdhury, A.I.R. 1959 Assam 200, referred to.
|
N: Criminal Appeal Nos.
606 and 607 of 1979.
From the Judgment and order dated 19 1 1979 of the Gujarat High Court in Criminal Revision Nos.
485 486/77.
V. B. Patel and section C. Patel for the Appellant.
G. J. L. Nain, Girish Chander and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by KOSHAL, J.
By this judgment we shall dispose of Criminal .
Appeals Nos. 606 and 607 of 1979 both of which are directed against a judgment of a Division Bench of the High Court of Gujarat dated the 19th January 1979 upholding the conviction recorded against and 442 the sentences imposed upon the three appellants under section 22A of the Minimum Wages Act (hereinafter called the Act) in each of two cases by a Judicial Magistrate at Morvi.
Some of the facts leading to the prosecution of the appellants are not in dispute and may be shortly stated.
Appellant No. 3 is the Morvi Vegetable Products Ltd., a limited company carrying on the business of manufacture and sale of vegetable oil and vanaspati in Morvi.
Appellant No. 1 is the Managing Director and appellant No. 2 the Secretary of appellant No. 3 which is hereinafter referred to as the company.
On May 2, 1973 Kumari J. G. Mukhi, who is a Government Labour officer cum Minimum Wages Inspector, visited the Company 's establishment and found that the following documents which, according to her, the Company was bound to maintain in compliance with the provisions of section 18 of the Act read with the relevant rules of the Gujarat Minimum Wages Rules, 1961, had not been maintained by it.
(a) Muster Roll in Form V as contemplated by rule 26(5).
(b) Wage Register in Form IV A as required by rule 26(]).
(c) Attendance cards in form V D as provided by rule 26(B).
(d) Wage slip in form IV B prescribed by rule 26(2).
In consequence, two complaints were filed against the appellants by N. H. Dave, Labour officer cum Minimum Wages Inspector.
Rajkot in the court of the trial Magistrate, each praying that the appellants be convicted and sentenced for an offence under section 22A of the Act.
One of the complaints was in respect of the contravention of rules 26(1) and 26(S) while the other embraced that of rules 26(2) and 26 B. They were registered as Criminal Cases Nos. 674 and 675 of 1973 respectively.
At the trial the appellants pleaded not guilty.
Their defence consisted mainly of the following pleas: (a) Different types of industries are covered by the Act but the Company does not run any such industry and is, therefore.
not liable for any contravention of the Act or the rules framed thereunder.
According to the prosecution the factory run by the Company is an oil mill, an industry which is certainly covered by the Act.
However, the Company is running a mill which manufactures vanaspati and vanaspati is not an oil but is vegetable ghee.
Oil extraction is no doubt 443 a major operation carried on by the Company but that operation is merely incidental to the preparation of vanaspati.
No separate licence for the oil expelling machinery used by the Company has been obtained from the State Government nor has sales tax been paid on the oil extractor by the Company.
Vanaspati is manufactured by subjecting oil to the processes of neutralization, bleaching, deodorisation, hardening, hydrogenation, etc.
and is a product quite different from oil.
(b) The Company does not carry on the business of sale of the oil manufactured by it except as an operation incidental to the manufacture of vanaspati, e.g., when there is a breakdown of the machinery used for converting oil into vanaspati or when oil become surplus on account of a shift in the Government policy in regard to the percentage of oil to be , consumed by the Company.
In spite of the sale of oil, therefore, the Company remains a vanaspati manufacturer and cannot be considered to be running an oil mill.
(c) Under section 5 of the Act committees were appointed by the Government from time to time to hold inquiries and advise it in respect of fixation or revision of minimum rates of wages for employees in various industries.
No representative of the vanaspati industry was taken on any of these committees nor was any questionnaire issued to any of the manufacturers of vanaspati, with the result that the Company was not bound by the recommendations of those committees or decisions taken in pursuance thereof by the Government.
(d) In respect of oil mills rates of minimum wages were fixed under the Act by the Government for three types of employees, namely, skilled, semi skilled and unskilled.
Apart from these a vanaspati manufacturer has to arrange for the services of other types of employees which shows that a vanaspati manufacturing mill is different from an oil mill.
After the trial the learned Magistrate repelled all the pleas taken up by the appellants in his judgment dated October 13, 1975.
His findings were as follows: (i) The Company no doubt manufactured oil from oil seeds and subjected the same to further processes in order to produce .
vanaspati.
However, the Company was selling not only the vanaspati manufactured by it but also oil and refined oil as such in addition to oil cakes and de oiled cakes, which was being done not merely in exigencies pleaded by the Company but in the regular course of business.
444 (ii) One of the committees appointed by the Government under section S of the Act had issued a questionnaire to the Company itself before making recommendations regarding fixation and revision of minimum wages for various kinds of employees working in an oil mill and it was not, therefore, open to the Company to contend that no opportunity was given to it to be heard in relation to such fixation and revision.
(iii) The Company was an oil mill within the meaning of that expression as used in item S of Part I of the Schedule to the Act and the Act, therefore, is applicable to it.
It was in these premises that the learned Magistrate convicted the three appellants, in both the cases tried by him, of an offence under section 22 A of the Act.
The sentence imposed in consequence was a fine of Rs. 50 on each of the appellants in each case.
The appellants filed before the Sessions Court two applications for revision of the order of the learned Magistrate, one pertaining to each case.
Those applications where transferred by the High Court to Its own file for reasons which are not relevant for the purpose of these appeals.
The pleas raised before the learned Magistrate were reiterated on behalf of the appellants at the argument stage in the High Court but were again repelled with the result that both the applications were dismissed by the impugned judgment.
The High Court took into consideration various provisions of the Act and came to the conclusion that the same would apply to the Company only if it could be held to be running an oil mill and thus falling within the ambit of item S aforesaid.
In holding that the factory run by the Company was such a mill the High Court made the following points: (a) Vanaspati is nothing but hydrogenated vegetable oil and, therefore, only vegetable oil which has been subjected to certain processes.
It remains an oil in, spite of those processes and is not essentially different therefrom.
(b) The finding arrived at by the learned Magistrate that oil ', refined oil, oil cakes and de oiled cakes were being sold by the Company not merely as an operation incidental to the business of manufacturing vanaspati but in the regular course of business is a finding of fact and cannot be called in question.
in revision.
Part of the mill is, therefore, in any case, an oil mill.
(c) The Company was issued a questionnaire in its capacity as an oil mill by the committee appointed by the Government.
445 It cannot, therefore, urge that it had no opportunity to pre A sent its case before the committee which made recommendations in regard to fixation and revision of minimum wages.
A survey of the various relevant provisions of the Act may be useful at this stage.
Section 2 contains definitions.
Clause (e) of that section defines an 'employer ' as a person who employs one or more employees in any scheduled employment in respect of which minimum rates of wages have been fixed under the Act.
According to clause (g) of the same section a 'scheduled employment ' means any employment specified in the Schedule to the Act or any process or branch of work forming part of such employment.
The Schedule is in two parts.
Part I enumerates various employment.
Item S of that part reads: "Employment in any oil mill" Section 5 lays down procedure for the fixation and revision of mini mum rates of wages in respect of any scheduled employment by the Government which is authorised to appoint as many committees or subcommittee as it considers necessary to hold inquiries and advise it in respect of such fixation or revision.
Section 9 deals with the com position of the aforesaid committees and reads thus: "Each of the committees, sub committees and the Advisory Board shall consist of persons to be nominated by the appropriate Government representing employers and employees in the scheduled employments, who shall be equal in number, and independent persons not exceeding one third of its total number of members: one of such independent persons shall be appointed the chairman by the appropriate Government.
The following corollaries are immediately deducible from the provisions of the Act above noted: (i) For an employer to be covered by the Act the following conditions must be fulfilled: (a) he must be employing one or more employees in any scheduled employment; (b) minimum rates of wages for such scheduled employment must have been fixed under the Act, and (c) if a committee has been appointed by the Government under section S in respect of such scheduled employment it must consist of persons representing employers and employees in the scheduled, employment who shall be equal in number.
446 (ii) Employment in an oil mill is a scheduled employment.
It is not disputed that the company is not covered by any of the items enumerated in Part I of the Schedule to the Act.
except item section The most important point to be determined in the case.
there fore.
is whether employment in a vanaspati manufacturing concern would fall within the ambit of item S of part I of the Schedule to the Act.
i.e., whether it is an employment in an oil mill or not.
The only argument advanced on behalf of the appellants in this connection is, as it was before the two courts below, that vanaspati is a form of ghee which is not an oil; and this contention we find to be without force.
Vanaspati, in our opinion, is essentially an oil although it is a different kind of oil than that oil (be it rapeseed oil, cotton seed oil, ground nut oil, soya bean oil or any other oil) which forms its basic ingredient.
Oil will remain oil if it retains its essential properties and merely because it has been subjected to certain processes would not convert it into a different substance.
In other words, although certain additions have been made to and operations carried out on oil, it will still be classified as oil unless it.
, essential characteristics have undergone a change so that it would be a misnomer to call it oil as understood in ordinary parlance.
The word 'oil ' i.: not defined in the Act and therefore.
its dictionary meaning may well be pressed into service for interpreting the term 'oil mill '.
According to Webster 's Third New International Dictionary (1966 edition) the word 'oil ' has different connotations in different situations but in the context of item .
5 aforesaid the meaning to be given to it would be: "any of various substances that typically are unctuous viscous combustible liquids or solids easily liquefiable on warming and are not miscible with water but are soluble in ether, naphtha, and often alcohol and other organic solvents, that leave a greasy not necessarily permanent stain (as on paper or cloth), that may be of animal, vegetable, mineral, or synthetic origin, and that are used according to their types chiefly as lubricants, fuels and illuminates as food.
in soap and candles, and in perfumes and flavouring materials".
All the ingredients of this meaning are fully satisfied in the case of hydrogenated vegetable oil.
We may specially point out that even solids easily liquefiable on warming fall within the meaning given by Webster.
Now the various processes, namely, neutralization, bleaching, deodorisation, hardening and hydrogenation to which oil is subjected for being converted into vanaspati leave its basic characteristics untouched, i.e, it remains a cooking medium with vegetable fat as its main ingredient.
Neutralisation, bleaching and deodorisation 447 are merely refining processes so that the colour, the odour and foreign A substances are removed from it before it is hydrogenated and hardened and even the two processes last mentioned allow the oil to retain whose characteristics.
Even ghee, for that matter, is nothing but a form of oil although it is obtained from animal fat, being a derivative from milk.
It may be of use to mention that in Persian language ghee is known as 'raughan zard ', i.e., yellow oil, and it does not need an expert to point out that the viscosity of ghee depends upon the weather because with the rising temperature during summer months it turns into liquid while the cold of December and January solidifies, it.
Nonetheless it remains an oil and it makes no difference that it is called ghee in ordinary parlance.
The word is merely a different name for an oil which is not derived from vegetables.
From that point of view the term 'vegetable ghee ' is a contradiction in terms, ghee being essentially an animal fat.
The reason why i has come to be called vegetable ghee appears to be that in its finished form it resembles ghee in appearance and viscosity and is also considered a more respectable form of cooking medium when so called, thus catering to the psychological satisfaction of the consumer.
We pointedly asked learned counsel for the appellants if he could indicate any difference between vegetable oil and vanaspati which would essentially distinguish the former from the latter, either in physical or chemical properties or in food value.
No such difference was indicated and all that he said was that vanaspati would normally be available in solid state and had the appearance of ghee rather than that of any oil.
This, in our view, is a superficial difference which does not at all go to the root of the matter.
Accordingly we hold that vanaspati must be regarded as an oil for the purpose of the aforesaid item 5 in spite of all the processes to which the oil forming its base has been subjected in order to convert it into the finished product.
Although the finding just above arrived at obviates the necessity of our determining the question whether the Company would be an oil mill even if vanaspati were not considered to be an oil, we have every reason to answer that question in the affirmative in view of the finding arrived at by the learned Magistrate that the Company sells oil in its unhydrogenated form not only when the exigencies pointed out by it arise but also otherwise and in the regular course of business.
That finding being a finding of fact is no longer open to challenge; and that being so, the operation of sale of oil as such would make the Company an oil mill even if the bulk of the oil produced by it is converted into vanaspati and sold in that form The reason is obvious.
It is not the case of the Company that the proportion 448 Of sales of oil to those of vanaspati is so low that the former should be ignored.
In this situation a sizeable part of the activities of the Company must be field to be connected with running an oil mill and the Company, therefore would be liable to be classified as such to that extent even though it also carries on business other than that of selling oil.
The grouse of the Company that the provisions of sections 5 and 9 have not been complied with has for its basis the assumption that it is not an oil mill an assumption which must be held to be ill founded in view of the foregoing discussion and the classification of the company with reference to item S in Part I of the Schedule to the Act.
It is not disputed that if the Company is to be regarded as an oil mill, sections S and 9 do not come to its rescue because representatives of oil mills did man the committee appointed by the Government for fixing the minimum rates of wages in respect of employment in an oil mill and that the Company itself (as well as other oil mills) was invited through a questionnaire to submit their views and thus were given the opportunity to be heard in relation to the fixation of such wages.
The only other contention raised on behalf of the appellants was that while the relevant notification issued by the Government has fixed rates of wages in respect of skilled, semi skilled and unskilled employees working in oil mills, the Company employs other types of workers in connection with the process of hydrogenation of vegetable oil and that such workers do not form the subject matter of the committee 's deliberations or the Government 's attention.
This contention is also without substance.
We asked the learned counsel for the appellants to point out which of the employees of the Company fell outside the three categories just above specified and he was unable to name any.
(obviously the said three categories exhaust the types of workers which would be employed in any undertaking, barring of course specialists and technical experts who admittedly do not fall within the category of employees embraced by the Act.
It is not disputed that if the Company is an oil mill it is guilty of all the contraventions of which it has been convicted.
Nor has any argument been advanced to the effect that the sentences awarded are excessive.
In he result, therefore, both the appeals fail and are dismissed S.R. Appeals dismissed.
| The respondent joined service in Cane Development Department of the U.P. State Government in 1949 and later on transferred to District Co operative Sugarcane Development Society Ltd., a federating unit of the U.P. Co operative Cane Union Federation Ltd. He was prosecuted and convicted for alleged embezzlement of funds, but was acquitted by the High Court in appeal.
Later as a result of departmental disciplinary proceedings, his services were terminated.
Respondent, therefore, filed a Civil Suit in 1964 which was decreed on May 24, 1967 rejecting the appellant 's plea of bar of jurisdiction by the Civil Court under Rule 115 of the Co operative Societies Rules, 1936, made under section 43 of the .
The First Appellate Court accepted the appeal and dismissed the suit holding that the dispute was one "touching the business of the Co operative Society" and its employee and hence the Civil Court is barred from entertaining the suit.
However, in the second appeal to it, the High Court reversed the First Appellate Court 's order holding that as the respondent is governed by U.P. Sugarcane (Regulation of Supplies and Purchases) Act, 1953, it being both a Co operative Society and a Cane Growers ' Co operative Society and in case of an officer or servant of such Cane Growers ' Co operative Society any dispute between its officers and servants and such society would be governed by Rules 54 and 55 framed under the 1953 Act which provide for a complete machinery for resolution of disputes and Rule 108 does not encompass dispute arising out of a disciplinary proceeding between such society and its officers and servants and therefore, in the absence of such provision for compulsory arbitration of such dispute, the jurisdiction of the Civil Court is not barred.
Dismissing the appeal by special leave, the Court ^ HELD: (1) On a conspectus of the High Court 's decision and the definition of the expression "officer" both expansive definition and its etymological sense, first respondent a Supervisor working as a Godown Keeper could not be styled as an officer of the Co operative Society, he not being either Chairman.
Secretary, Treasurer, or a member of the Committee or such other person shown to have been empowered under the rules or the bye laws to give directions in regard to the business of the society.
And the legislature never intended 559 to include every employee or servant of the society within the expression "officer".
Neither any rule made under section 43(g) of the 1912 Act refers the respondent as an officer.
[567 D, 565 G, 566 F] Co operative Central Bank vs Trimaak Narayan Shinganwadikar, ; Manjeri section Krishna Ayyar vs Secretary, Urban Bank Ltd. & Anr.
AIR 1933 Mad. 682; Kailash Nath Halwai vs Registrar, Co operative Society, U.P. & ors.
, AIR 1960 Allahabad 194 and Abu Baker & Anr.
vs District Handloom Weavers ' Co operative Society, Mau & Anr., AIR 1966 Allahabad 12, referred to.
(2) Rules 115 to 134 of the Co operative Societies Rules, 1936 make it clear that if the dispute is one contemplated by Rule 115 and arises between the parties therein envisaged it shall have to be resolved by referring the same to the Registrar who will have to get it resolved by arbitration either by himself or by arbitrator or arbitrators appointed by him.
Rule 134 provides that a decision of an arbitrator or arbitrators under the rules, if not appealed as therein provided, shall be final as between the parties to the dispute and not liable to be called in question in any civil or revenue court and shall in all respects be final and conclusive.
If, therefore, the 1912 Act confers power to enact rules and the rules so enacted are statutory and if the rules provide for certain types of disputes between certain specific parties to be resolved by arbitration and the decision of the arbitrators is made final and conclusive not correctible by the civil court or unquestionable before the civil court, undoubtedly, the jurisdiction of the civil court in respect of such specified disputes between specified parties enumerated in Rule 114 would be wholly excluded.
[567 F 568 A] (3) In order to attract Rule 115 it must be shown (i) that the dispute is the one touching the business of the co operative society; and (ii) that it is between the society and any officer of the society.
Both the conditions have to be cumulatively fulfilled before Rule 115 is attracted which would result in ouster of the jurisdiction of the civil court in respect of dispute in view of the provision contained in Rule 134.
A dispute arising out of a disciplinary proceeding resulting in dismissal of an employee of the society cannot be said to be "a dispute touching the business" of the society within the meaning of the Rule 115.
[568C, 569G] Deccan Merchants Co operative Bank Ltd vs M/s. Dalichand Jugraj Jain & Ors.
,[1969] 1 SCR 887; Co operative Central Bank Ltd & Ors.
vs Additional Industrial Tribunal, Andhra Pradesh & ors., followed.
Kisanlal & ors.
vs Co operative Central Bank Ltd., AIR 1946 Nagpur 16 approved.
(4) Section 70 of the U.P. Co operative Societies Act, 1965 also makes it clear that while making a statutory provision for resolution of disputes involving co operative societies by arbitration by the Registrar, the legislature in terms excluded a dispute relating to disciplinary action taken by the society against paid servants of the society from the purview of the compulsory arbitration.
What was implicit in the 1912 Act and the rules framed thereunder that such a dispute did not "touch the business of the society" and was not within the purview of the compulsory arbitration was made explicit by section 70 of the 1965 Act (which repeal and replace 1912 Act) by expressly excluding it from the field of compulsory arbitration.
[570C, E] 560 (5) The approach of the High Court in coming to the conclusion that the civil court will have jurisdiction to entertain the suit, however, is not correct and totally overlooks and ignores the provisions in 1912 Act and the rules enacted thereunder.
U.P. Sugarcane (Regulation of Supplies and Purchases) Act, 1953 and the operate in an entirely different field and are enacted with different objects in view.
1953 Act neither trenches upon 1912 Act nor supersedes or supplants any provision of it.
[572 C]
|
Appeals Nos. 817 and 818 of 1966.
Appeals by special leave from the judgment and order dated January 19, 1965 of the Mysore High Court in I.T.R.C. No. 1 of 1964.
Niren De, Attorney General, section C. Manchanda and R. N. Sach they, for the appellant.
597 M. C. Chagla, Sharad J. Mhaispurkar, O. P. Malhotra and O. C. Mathur, for the respondent.
The Judgment of the Court was delivered by Ramaswami, J.
The respondent is a Hindu Undivided Family (hereinafter called the assessee) of which Shri D. C. Shah is the karta.
The assessment years are 1959 60 and 1960 61 and the relevant accounting periods are Samvat years 2014 and 2015.
The assessee through its karta Shri D. C. Shah was a partner in the firms of (1) M/s C. U. Shah and Co. and (2) M/s Oriental Can Manufacturing Co. as per terms and conditions set out in the Instruments of Partnership dated 5 6 1961 and 11 9 1957.
Shri D. C. Shah was paid a remuneration of Rs. 12,000/ per 1 year for both the assessment years by M/s C. U. Shah and Company.
He was paid Rs. 10,000/ for the assessment year 1959 60 by the Oriental Can Manufacturing Company.
The amounts received by Shri D. C. Shah were shown by the assessee in its, returns of income along with balance of the share income from the aforesaid firms.
The Income Tax Officer in assessing the Hindu Undivided Family included the remuneration received by Shri D. C. Shah as a part of the share income from the respective firms.
Before the Appellate Assistant Commissioner the assessee contended that remuneration received by Shri D. C. Shah was his personal income and the amounts were wrongly shown in the returns of the ' Hindu Undivided Family as its income and should not have been included in the assessment.
In so contending the assessee relied on clauses 8, 9 and 10 of the Instrument of Partnership dated 5 6 1961 by which the firm of M/s C. U. Shah and Company was constituted.
The assessee also relied on clauses 14, 15 and 16 of the Instrument of Partnership dated 11 9 1957 by which the firm of M/s Oriental Can Manufacturing Company was constituted.
Clauses 8, 9 and 10 of the Instrument of Partnership dated 5 6 1961 are to the following effect "8.
The partner No. 1 Shri D. C. Shah who has been managing the business of this firm shall hereinafter also continue to act as Managing partner for conducting the said business free from any interference of other partners, of whatsoever nature.
The said Managing partner shall manage, direct, appoint: and/or remove any one of the employees, and/or do all other things, which include right to draw cheques, to make, deliver and accept documents either legal or commercial in respect of the partnership business as may be deemed necessary for effectively carrying on the partnership business.
The said Managing partner shall be paid Rs. 1,000/ (Rupees one thousand only) per month in addition to all other benefits that he is entitled to enjoy as a partner of the firm.
588 9.
The said Managing partner shall continue to be the Managing Partner for his life time or his retirement whichever is earlier.
All other partners shall devote as much time to the furtherance of the partnership business as they think proper,.
necessary and a visable".
Clauses 14,,15 and 16 of the Instrument of Partnership dated 11 9 1957 are to the following effect : "14.
The partner No. 2 shall, be the Managing Partner for conducting the said business free.
from any interference of whatsoever nature by others.
The said Managing Partner shall manage, carry, direct, appoint and/or remove any of the employees and/or Agent and do all other things, as may be deemed necessary, for effectively carrying on the Partnership business.
The said Managing Partner shall be entitled, in addition to all other benefits, to a monthly remuneration of Rs% 2,000/ (Rupees two thousand only).
The Partner No 2 shall continue to be the Managing Partner for his lifetime or retirement.
In the event of Partner No. 2 's demise or retirement, whichever is earlier, the Partner No. 1 shall then act and perform duties and functions of Managing Partner.
In the event of the demise or retirement of Partner No. 1, the Managing Partner shall be appointed by the remaining partners or their legal representatives, as the case may be, 16.
Partner No. 3 shall be responsible for the duties and functions to be performed under the direction of No. 2, the Managing Partner.
In the event of failure on the part of No. 3 to perform duties and functions or otherwise entrusted by No. 2, the Managing Partner, the matter shall be referred to No. 2 and his decision shall be binding on No. 3".
The Appellate Assistant Commissioner accepted the contention of the assessee and held that the remuneration paid and re ceived by Shri D. C Shah should be deleted from the assessment of the assessee.
The Income Tax Officer thereafter preferred appeals to the Income Tax Tribunal which set aside the order of the Appellate Assistant Commissioner and held that the remuneration paid should be included in the total income of the assessee.
At the instance of the assessee, the Income Tax Appellate Tribunal stated a case to the High Court on the following question of law : "Whether on the facts and in the circumstances of the ease.
, was the salary received by D. C. Shah from the 589 two firms of M/s C. U. Shah & Co. and M/s Oriental Can Manufacturing Co., includible in the assessment of the H.U.F. of which Shri D. C. Shah was the Karta?" The High Court relying upon its earlier decision in Gurunath V. Dhakappa vs Commissioner of Income tax, Mysore (1) held that the salary received by Shri D. C. Shah from the aforesaid firms cannot be included in the assessment of the Hindu Undivided Family of which he was the karta.
These appeals are brought by special leave on behalf of the Commissioner of, Income Tax, Bangalore from the judgment of the Mysore High Court, dated 19th January, 1965 in Income Tax Reference No. 1 of 1964.
The question whether the remuneration earned by a member of a Hindu Undivided Family as an officer of a company or.
a firm in which the assets of the Hindu Undivided Family have either been invested or the office has been acquired with the aid of the funds of the family is the income of the family or the individual income of the member has been the subject matter of consideration in several cases before this Court.
In V. D. Dhanwatey vs Commissioner of Income tax(2), V the karta of a Hindu Undivided Family contributed to the capital of a firm out of the funds of the family.
Under the agreement of the partnership the general management and supervision of the partnership business was to be in the hands of V and he was to be paid a monthly remuneration out of the gross earnings of the partnership business.
It was found that V joined the partnership as representing the family and became a partner on account of the investments of the joint family assets in the capital of the partnership and that the remuneration received by V was only an increased share of the profits paid to him as representing the family.
In this state of facts it was held by this Court that the remuneration paid to V was directly related to the investments of the assets of the family in the partnership business and "there was a real and sufficient connection between the investment from the joint family funds and the remuneration paid to V".
It was therefore held by this Court that the salary paid to V was, rightly assessed as the income of the Hindu Undivided Family.
In M. D. Dhanwatey vs Commissioner of Income Tax(1) the facts were parallel to the facts in V. D. Dhanwatey 's case (2 ) and the salary received by the karta of the Hindu Undivided Family was treated as the income of the family.
In section R. M. CT.
Palaniappa Chettiar V. Commissioner of Income Tax(4), the material facts were different.
The karta of a Hindu Undivided Family acquired 90 out of 300 shares in a transport company with the funds of the family.
In course of time he (1) (2) (3) (4) L10Sup./69 3 became the Managing Director of the Company.
As Managing Director the karta was entitled to salary and commission on the.
net profits of the company, and was entrusted with control over the financial and administrative affairs of the company.
The, only qualification under the Articles of Association for the office of a Director, was the holding of not less than 25 shares in his own right.
It was found that the shares were acquired by the family not with the object that the karta should become the Managing, Director, but in the ordinary course of investment and there was no real connection between the investment of the joint family funds in the purchase of the shares and the appointment of the karta as Managing Director of the company.
It was held therefore that the remuneration of the Managing Director was not earned on account of any detriment to the joint family assets and the amounts received by the karta as Managing Director 's remuneration, commission and 'sitting fee ' were not assessable as the income of the Hindu Undivided Family.
In P. N. Krishna Iyer V. Commissioner 'of Income Tax Kerala(1), the principle laid down in V. D. Dhanwatey,s case(2) was applied.
It was held that the remuneration received by the assessee from the company of which he was the Managing Director together with commission and 'sitting fee ' , should be included in the assessment of the Hindu Undivided Family.
It was pointed out that the shares which qualified the assessee to become a member of the company were purchased with the aid of the joint family funds.
The shares which were allotted to the assessee in lieu of this services were also treated as shares belonging to the joint family.
The entire capital assets of the company originally belonged to the joint family and were made available to the company in consideration of a mere promise to pay the amount for which the assets were valued.
The income was primarily earned by utilising the joint family assets or funds and the mere fact that in the process of gaining the advantage an element of personal service or skill or labour was involved did not alter the character of the income.
In cases of this class the character of the receipt must be determined by reference to its source, its relation to the assets of the family and the proximity of the connection between the investment from the joint family funds and the remuneration paid.
Applying the principle laid down in V. D. Dhanwatey 's case(3), it was held that the tribunal wag justified in holding that the income from the salary, commission or 'sitting fee ' obtained by the assessee did not represent his individual income but was the income of the Hindu Undivided Family of, which he was the karta.
(1) (2) 591 In Commissioner of Income Tax, Mysore vs G. V. Dhakappa(1), the principle laid down in V. D. Dhanwatey,s(2) case was applied again.
It was held that there was no finding that the income which was received by G. V. Dhakappa was directly related to any assets of the family utilised in the partnership, and, therefore, the income of G., V. Dhakappa cannot be treated as the income of the Hindu Undivided Family.
In our opinion, the present case falls within the principle laid down by this Court in S.R.M. CT.
Palaniappa Chettiar 's case(3).
It has been found that Shri D. C. Shah was a man of rich experience in the line of business which these two firms were carrying on.
Clauses 9 and 10 of the Partnership deed dated 5 6 1961 indicate that the remuneration was paid not because of the family funds invested in the partnership but for the personal qualification of Shri D. C. Shah.
In the case of Oriental Can Manufacturing Company clause 14 provided for Shri K. K. Dhote being appointed as the Managing partner.
After the said Shri Dhote retired Shri D. C. Shah was appointed as the Managing partner during the assessment year 1959 60.
Clause 15 of the partnership deed provided for such an appointment.
A reading of clauses 14, 15 and 16 of the Partnership Deed indicates that the remuneration was paid for the specific acts of management done by Shri D. C. Shah resting on his personal qualification and not because he represented the firm.
It should also be noticed that no other partner was paid any salary.
Upon the particular facts of this case, it is manifest that there was no real or sufficient connection between the investment of the joint family funds and the remuneration paid by the partnership to Shri D. C. Shah.
It follows that the remuneration of Shri D. C. Shah was not earned on account of any detriment to the joint family assets and the amounts of remuneration received by Shri D. C. Shah as the Managing partner of the two partnerships were not assessable as income of the Hindu Undivided Family.
For these reasons we hold that there is no merit in these appeals which are accordingly dismissed with costs.
There will be one hearing fee.
Y.P. Appeals dismissed.
(1) Civil Appeal No. 713 of 1965 decided on 23 7 1968.
| The assessee a Hindu undivided family through its karta was a partner in two firms.
The Karta had rich experience in the line of business carried on by the firms.
in one of the firms, the Karta was appointed as its Managing Partner and paid a remuneration as Managing Partner in addition to the benefits enjoyed as a partner.
in the other firm, another partner was appointed as the Managing Partner, and it was provided that on his retirement, the Karta was to be appointed as the Managing Partner and entitled to the remunerations.
The Karta was appointed the Managing Partner of the second firm also on the retirement of its earlier Managing Partner.
The assessee family claimed that the remunerations received by the Karta as Managing Partner should be deleted from the assessment of the assessee, and they were the personal income of the Karta.
HELD: The remuneration of the Karta was not earned on account of any detriment to the joint family assets and the accounts received by the Karta as the Managing Partner of the two partnerships were not assessable as the income of the Hindu undivided family.
[591 F], Upon the facts of the case, there was no real or sufficient connection between the investment of the joint family funds and the remuneration paid by the partners to the Karta.
The remuneration was paid not because of the family funds invested ' in the partnership, but for the personal qualifications of the Karta.
[591 D F] S, R. M.CT. PL.
Palaniappa Chettiar vs Commissioner of Income tax, , followed.
Gurunath V. Dhakappa vs Commissioner of Income tax, Mysore, ; V. D. Dhanwatey vs Commissioner of Income tax, ; M. D. Dhanwatey V. Commissioner of Income tax, ; P. N. 'Krishna Iyer vs Commissioner of Income tax Kerala, and Commissioner of Income tax, Mysore vs G V. Dhakappa, Civil Appeal No. 713 of 1965 decided on 23 7 1968, referred to.
|
N: Criminal Appeal No. 384 of 1974.
Appeal by Special leave from the Judgment and Order dated the 24th October, 1973 of the Allahabad High Court in Crl.
Appeal No. 710 of 1973.
Dalveer Bhandari, H.M. Singh & Ranbir Singh for the Appellant.
R.K. Garg, V.J. Francis & Nikhil Chandra for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
It was about 5.30 P.M. on October 15, 1971.
Bankey Lal son of Jang Bahadur Singh and his wife Chandra Kali were returning home from their 'Khalihan ' (threshing floor) which was situated towards the north of their village Kishunpur Chirai.
As they came near the village they were met by Pussu alias Ram Kishore and his brother in law Sheo Rakhan.
Pussu was armed with a licensed gun of his father Jia Lal and Sheo Rakhan with a country made pistol.
They both fired at Bankey Lal causing him injuries.
Chhatrapal and Gaya Prasad who were going that very way towards the village saw the occurrence and asked Pussu and Sheo Rakhan to desist from firing and also tried to stop them from continuing to fire.
Pussu fired with the gun towards Chhatrapal who in spite of being fired at tried along with some others who were there to catch hold of Pussu and to snatch the gun from his hands.
As Pussu could not reload the gun he assaulted those who tried to catch him with the butt of the gun.
Gaya Prasad was, however, able to snatch the gun from the hands of Pussu after delivering few blows with his lathi on the head of Pussu.
Pussu suddenly managed to escape from the hold of the witnesses and ran towards Sheo Rakhan who was standing near a mango tree with his country made pistol which he was not in a position to open and reload in spite of his attempts.
In the meantime the witnesses were carrying the injured Bankey Lal towards the village and when they came near a pipal tree, Pussu ran towards them 297 with the country made pistol which he had reloaded by then and fired again at Bankey Lal and killed him instantaneously.
This in brief is the prosecution case.
The defence version appears to be that on the date and at the time of the occurrence Pussu and Sheo Rakhan were going towards the 'Bhagwa Talab ' near their village and on the way they came across Bankey Lal, his servant Nanhoon and Chhatrapal.
These three persons surrounded both Pussu and Sheo Rakhan and began to assault them.
On hearing their cries Jialal, the father of Pussu ran towards them with his licensed gun and fired in self defence at Chhatrapal and Bankey Lal causing injuries to Chhatrapal and killing Bankey Lal.
On the basis of the allegations of the prosecution, Pussu was charged for an offence punishable under section 302 I.P.C. for having committed the murder of Bankey Lal and for an offence punishable under section 307 I.P.C. for having attempted to commit the murder of Chhatrapal.
He was also charged under section 323 for having caused hurt to Gaya Prasad and under sections 25 and 27 of the Arms Act for having been found in illegal possession of and for having used a licensed gun for unlawful purposes.
He was also charged separately under section 302/34 I.P.C. for having committed murder of Bankey Lal in furtherance of the common intention of himself and of Sheo Rakhan.
Sheo Rakhan was charged under section 304/34 I.P.C. for the murder of Bankey Lal in furtherance of the common intention of himself and of Pussu.
Jia Lal, father of Pussu, was charged under section 30 of the Arms Act for contravening the conditions of the licence issued in respect of his gun by allowing Pussu to take and use it as stated above.
The learned Sessions Judge at Fatehpur in Sessions Trial No. 128/72 found Pussu guilty of the offence punishable under section 302 I.P.C. for having committed the murder of Bankey Lal and imposed the sentence of death on him subject to confirmation by the High Court.
Pussu was also found guilty of offences punishable under sections 307 I.P.C. 323 I.P.C. and under section 27 of the Arms Act for which he was sentenced to undergo rigorous imprisonment for seven years, for one year and for one year respectively which were to run concurrently.
Sheo Rakhan was found guilty of an offence punishable under section 302/34 I.P.C. and was sentenced to undergo imprisonment for life.
Jia Lal, father of Pussu, was however acquitted of the charge against him.
298 On appeal by Pussu and Sheo Rakhan, in Criminal Appeal No. 710/73/Referred No. 34 of 1973 the High Court of Allahabad set aside the convictions and sentences imposed on them and acquitted them of the changes levelled against them.
Against the judgment of the High Court the State Government applied to this Court for special leave to appeal against Pussu and Sheo Rakhan after a petition for a certificate under Article 134 (1) (c) of the Constitution had been dismissed by the High Court.
By its order dated October 28, 1974, this Court granted special leave to appeal against Pussu alone and hence this appeal by special leave against Pussu only.
In the present case many facts are not in dispute.
That Bankey Lal was killed by injuries caused by a fire arm is not in dispute.
The time, the date and place of the alleged occurrence are also not in dispute.
The presence of Chhatrapal, Bankey Lal, Pussu and Sheo Rakhan at the scene of occurrence when the occurrence took place is not also disputed.
That the licensed gun of Jia Lal, father of Pussu was used at the time of occurrence is also not in dispute.
That Chhatrapal suffered injuries on account of shots fired from that gun is also not in dispute.
That there was enmity between the family of Bankey Lal and the family of Pussu owning to some consolidation proceedings is not seriously questioned before us.
The only points in dispute are (1) whether Bankey Lal was killed on account of firing by Pussu as stated by the prosecution or whether he was killed on account of the shots fired by Jia Lal, father of Pussu, (2) whether Chhatrapal suffered injuries on account of shots fired by Pussu with the said gun or whether he suffered these injuries on account of the firing by Jia Lal, (3) whether Gaya Prasad was assaulted by Pussu and (4) whether Pussu had committed any offence under the Arms Act.
The report containing the first information about the occurrence, according to the prosecution, was written by Yashwant Singh (P.W.6), a young person of about 18 years who was a resident of Kishunpur Chirai to the dictation of Jang Bahadur Singh, the father of Bankey Lal.
Yashwant Singh has stated that he was a student studying in the IXth class, that he had written the report to the dictation of Jang Bahadur Singh, that after writing it he had read it out to Jang Bahadur Singh who signed before him and that thereafter he had handed over the report to Jang Bahadur Singh.
He has denied that he had written the report either to the dictation of 299 Lakhanlal and others or some time later to the dictation of the police.
The report contains details which Jang Bahadur Singh (P.W.13) was able to collect from his daughter in law and others who were near by at the time of the incident.
In that report there is no reference to Jia Lal, father of Pussu, at all, (one Jia Lal whose name is mentioned in it is a different person).
The presence of Pussu and Sheo Rakhan at the scene is mentioned.
The role played by each of them is stated to be as in the prosecution case set out above.
The names of persons who were present there including Chhatrapal are also mentioned.
The above report and the licensed gun of Jia Lal, the father of Pussu, which had been seized by the witnesses were received at about 8.30 P.M. on that very day at the Police Station at Khakhreru which was about four miles from Kishunpur Chirai where the occurrence had taken place.
On the basis of the said report the First Information Report was prepared under section 154 Criminal Procedure Code.
The learned Trial Judge has opined that the First Information Report has been promptly prepared and sent in this case.
The only criticism made against it before the trial court on behalf of the accused was that it did not contain some details including the injuries said to be on the person of Pussu and Sheo Rakhan.
The trial court has observed that the report was not one dictated by an eye witness but by Jang Bahdur Singh who collected information from people who were there, that Jang Bahadur Singh who had lost his only son could not be expected to furnish all details at the time when the report was prepared and that the report contained broadly all the particulars of the occurrence.
The trial court also observed that no motive could be assigned to the omission to refer to the injuries on the person of the accused said to have been caused by lathi blows.
The High Court has, however, considered this last aspect namely the omission to refer to Gaya Prasad (P.W.7) giving lathi blows to Pussu and to Chhatrapal catching hold of Pussu and preventing him from reloading the gun was a material omission.
We shall advert to this aspect of the matter again at a later stage.
One significant aspect of the First Information Report however is that even though there was enmity between the family of Jang Bahadur Singh and the family of Jia Lal, the father of Pussu, and although the defence theory is that the said Jia Lal had fired at Chhatrapal and Bankey Lal, there is no reference to the presence of Jia Lal the father of Pussu, at the scene of occurrence.
300 After the receipt of the information regarding the occurrence, the Sub Inspector of Police, Dharam Singh (P.W. 14) and the Station Officer Yamuna Prasad Pandey (P.W. 15) conducted the investigation.
Pussu and Sheo Rakhan could not be arrested till October 23, 1971.
They were absconding till then and they surrendered in the court of the Additional District Magistrate (J) on October 23, 1971.
Pussu has admitted this fact in his examination under section 364 Criminal Procedure Code, 1898 by stating that on learning about the report they surrendered before the court.
After the investigation was over a police report was filed in the court of the magistrate which ultimately led to the committal of Jia Lal, Sheo Rakhan and Pussu to take their trial before the Sessions Court.
Exhibit Ka 35 is the post mortem certificate issued by Dr. S.C. Misra, who had conducted the post mortem examination on the body of Bankey Lal.
He has stated therein that there were a number of gun shot injuries on the person of the deceased, and the death was due to shock and haemorrhage caused by gun shot injuries.
There is no comment made by either side on this report.
It is relevant to mention here that Dr. S.C. Misra has stated in his deposition (exhibit Ka 34) that on October 16, 1971 at about 2.30 p.m. he had also examined the injuries of Ram Kishore son of Jia Lal (Ram Kishore is the other name of Pussu) and had found three lacerated wounds, one abrasion, one contusion and one abraded contusion and had issued a certificate as per Exh.
He also stated that the said injuries could be caused by lathi blows.
Pussu has admitted that he was so examined in his statement under section 364 Criminal Procedure Code, 1898.
P.W.2 Dr. V.P. Singh is the person who examined the injuries on the person of Chhatarpal Singh (P.W.5), on the person of Gaya Prasad (P.W.7) and on the person of Ram Gopal.
He has stated that there were gun shot injuries on the person of Chhatrapal Singh and an abrasion and a lacerated wound which could have been caused by a blunt weapon on the person of Gaya Prasad.
Ram Gopal is stated to have a small contusion and an abrasion on his person.
P.W. 5 Chhatrapal Singh, P.W. 7 Gaya Prasad, P.W. 1 Lakhanlal and P.W. 10 Ramnath are the eye witnesses.
Of them P.W. 5 Chhatrapal Singh and P.W. 7 Gaya Prasad are injured witnesses.
The statement of Lakhanlal was recorded by the police on 301 October 15, 1971 itself when he handed over the report about the occurrence and the statements of Chhatrapal Singh, Gaya Prasad and Ramnath were recorded by the police on October 16, 1971.
Before considering the evidence of these eye witnesses, it is necessary to refer to a curious experiment which was carried out by the High Court in the course of the hearing of the appeal.
The experiment relates to the capacity of Chhatrapal to run when he was fired at by Pussu.
One of the arguments addressed on behalf of the accused before the High Court was that Chhatrapal could not have been fired at from a short distance but he must have been shot from a long distance as the injuries on his person were superficial and hence he could not run and try to catch hold of Pussu by his waist before Pussu could reload his gun.
Chhatrapal was about 60 years of age at the time of the incident.
In support of its conclusion that Chhatrapal could not run towards Pussu in order to catch hold of him this is what the High Court says: "Chhatrapal appeared in the Court and we asked him to move briskly to a certain distance in order to demonstrate his ability.
He did so.
We also got one of the young lawyers present in Court unload and reload a single barrel gun of exactly the same make as the gun, material exhibit 1.
Our assessment on the demonstration about the brisk movement of Chhatrapal and the time taken in reloading the gun by the young lawyer is that even if Chhatrapal aged 60 years after receiving the gun shots injuries had run from 8 to 10 paces, he could neither catch hold of Pussu, a young lad, nor prevent him from reloading his gun." This procedure of conducting an experiment which was carried out two years after the incident in court with the aid of an young lawyer (about whose proficiency in handling a gun we know nothing) who was asked to handle a different gun altogether and which had been used to reject the truth of the evidence of the eye witnesses appears to be highly irregular.
The High Court has not addressed itself to the degree of efficiency, or shall we say, inefficiency of Pussu in handling a gun.
The time taken by any person to reload a gun depends upon several factors including the condition of the gun and the surcharged atmosphere created by the firing bout which may have preceded the time of reloading the gun.
We shall now refer to what Chhatrapal has stated in the course of his deposition.
He has stated: 302 "At the time when I saw Pussu and Sheo Rakhan near the mango tree, I saw weapons in their hands.
At the place where the firing took place for the first time, both the accused person were opening and loading the cartridges.
They had loaded the cartridge near the mango tree.
On the first occasion, at the time of loading of the cartridges, I was at a distance of 1 15 paces towards east behind Bankey.
At the time of first firing, t e sounds of the gun fires made by the two accused person were separate.
They had fired from some distance from each other.
Both the accused persons were almost at equal distance.
They were not one behind the other.
I can not, however, rule out the difference of 1 or 2 paces.
At the first gunfire, Bankey ran towards the village.
He must have run upto a distance of 5 10 paces when the second fire was opened.
Bankey Lal was hit by the Ist as well as the 2nd gunfire.
At the time of firing, the accused persons were on the north eastern side of the passage.
The third gun fire was made by the accused persons at that very place.
Bankey could not go ahead.
At the time of 3rd fire, the accused persons were on the western side of Bankey Lal.
After this third fire, I rebuked the accused persons.
Thereupon Pussu fired at me and then I caught hold of him from behind.
The snatching of the gun took place at a distance of ten paces on the eastern side of the place where Bankey Lal had sat down.
As soon as Pussu fired at me, I caught hold of him by his waist.
After I had caught hold of his waist Pussu could not fire again so long as he did not get himself freed.
To Court: At the time when Pussu fired at me and I caught him by his waist, the empty cartridge fired at me remained inside the gun.
Pussu could not take it out or throw it away nor could he open the gun.
To counsel: And in the meantime the gun was snatched.
" 303 There is nothing elicited in the cross examination of this witness which could discredit his testimony.
There was no ill will between Chhatrapal and the members of Pussu 's family.
He denied a suggestion that there were some proceedings under section 107 Criminal Procedure Code against him.
There was also no evidence in support of that suggestion.
Chhatrapal had been in fact injured by gun shots and the gun used on that occasion had in fact been seized.
Why he should exonerate Jia Lal the father of Pussu from the responsibility of injuring him if Jia Lal was in fact responsible for it but implicate Pussu is in comprehensible.
Gaya Prasad (P.W. 7) who was also an injured eye witness stated in the course of his deposition thus: "When Bankey Lal and his wife reached near Har Sakri well, Pussu accused, who was armed with the gun of his father, and Sheo Rakhan accused who was armed with a country made pistol began to fire gunshots at Bankey Lal.
Bankey Lal and his wife raised alarm and ran towards the village.
Chhatrapal and I, following him were going towards the village by the same passage.
Chhatrapal forbade him but Pussu said that he would not leave Bankey Lal alive.
At this Chhatrapal ran to catch hold of Pussu whereupon Pussu aimed the gun at Chhatrapal.
Chhatrapal turned and the gunshot hit him on his back.
Even after being hit by the gunshot, Chhatrapal caught hold of Pussu by his waist.
Ram Gopal, Lakhan Lal, Jia Lal Gadaria, and Ram Nath came running to the place of occurrence from the south.
Ram Gopal and I went just close to Pussu, Ram Gopal and I advanced to snatch the gun, but Pussu gave one blow of the butt of the gun to each of us on the head.
At this I gave 4 5 blows of lathis to Pussu and then we jointly snatched his gun.
When we snatched his gun he went away towards the mango tree where his sala (brother in law) was present On receiving the injury, Bankey Lal had sat down in the way.
Ram Nath and Jia Lal lifted him on their arm and started for the village.
When they reached near the peepal tree, Pussu came with the pistol of his brother in law Sheo Rakhan struck it with the abdomen of Bankey Lal and fired, Bankey Lal 304 died just on receiving the pistol shot.
Thereafter Pussu and Sheo Rakhan ran away towards Raeepur.
" Jia Lal referred to in the above passage is Jia Lal Gadaria and not Jia Lal the father of Pussu.
Even this witness is not shown to be interested in giving false testimony.
Lakhan Lal (P.W. 1) and Ram Nath (P.W. 10) who were also eye witnesses have given substantially the same version as the evidence of Chhatrapal and Gaya Prasad and their evidence is not also shown to be unworthy of acceptance.
As against the above evidence adduced by the prosecution, we have the evidence of Jagannath (D.W.1).
He has stated that at the time when the occurrence took place he was in his plot near Bhagwa Talab which was close to the scene of occurrence, that he heard the cries of Pussu 'Run up, save me, Bankey Lal and Ghaseetey are killing me '.
What took place thereafter may be narrated in his own words thus: Having gone there, I saw that Bankey Lal deceased and Ghaseetey were assaulting Pussu accused with lathis.
Jia Lal challenged both of them and said "Do not beat him, otherwise I shall shoot you down".
On Jia Lal 's saying so, Chhatrapal and Bankey stopped for a short time; but they again rushed to assault Pussu.
In the meantime Pussu accused took shelter behind the mango tree.
Then Jia fired 2 3 shots at Chhatrapal and Bankey.
On receiving the gun shots injuries Chhatrapal fell down on the ground.
Bankey Lal, too, received some injuries.
In the meantime Bankey Lal 's servant Nanhua caught hold of Jialal accused from behind, as a result of which his arms also got bound.
Nanhua shouted "Run up.
I have caught hold of the sala".
At this Shiva Rakhan accused reached there.
He caught hold of Nanhua and felled him down and Jia Lal accused was released from his hold.
Bankey Lal deceased rushed to snatch the gun of Jia Lal accused, but as soon as his hand fell on the barrel of the gun, it got discharged and the shot hit Bankey Lal on his right flank, as a result of which Bankey Lal fell down dead then and there.
The accused persons ran away with their licensed gun towards their house.
305 This defence witness has not been believed by the trial court.
Nor do we find that any reliance has been placed on his evidence by the High Court.
The statement of this witness was recorded by the police on January 31, 1972 after P.W. 15 Yamuna Prasad Pandey came to know that the name of this witness had been mentioned in the report given by Pussu at the Kotwali Police Station.
He has stated in his cross examination that "When I sighted for the first time, I saw that Jia Lal was firing shots at Ghaseetey alias Chhatrapal and Bankey".
If that is so his version about what all had preceded that stage is manifestly his imagination.
We have carefully gone through his evidence and it does not inspire confidence.
The prosecution evidence cannot be rejected on the basis of the evidence of this defence witness, particularly because the minor injuries stated to be on the person of Pussu are not sufficient to hold that Pussu and Sheo Rakhan were the victims of the aggression on the part of Chhatrapal and Bankey Lal.
This defence version is also contradicted by the conduct of Pussu immediately after the incident.
If he was an innocent person and his father had fired the gun in defence of Pussu and Sheo Rakhan he would also have been an informant of the incident at the Khakhreru Police Station which was only about four miles from his village or he would have been available for interrogation by the police, if they came at the instance of somebody else.
But he ran away from the village and he was found at 8 A.M. on the next day i.e. October 16.
1971 at the Kotwali Police Station, Fatehpur which was about forty five miles from his village.
In order to reach that place he had to pass through at least three places where there were police stations.
As the trial court has observed he must have gone there to have proper legal advice before gaving his version of the incident at a police station where he could find an officer who would oblige him by not arresting him.
Ordinarily in a case of this nature a police officer would have contacted the concerned police station to ascertain facts and to seek instructions.
Pussu, as mentioned earlier, was arrested on October 23, 1971 when he surrendered before court.
The gist of the version in the F.I.R. (Exh.
Ka. 10) given by Pussu at the Kotwali Police Station, Fatehpur is summarised by the trial court in its judgment and the relevant portion of that judgment reads thus: "When both these accused reached near "Bhagwa Talab" they found deceased Bankey Lal.
Ghaseetey alias Chhatrapal and Bankey Lal 's servant Nanhoon coming from north side of the village towards them armed with lathis.
On account of fear both these accused left that 306 passage but the aforesaid three persons rushed up at them and began to assault them with lathis.
On hearing their cries his father accused Jia Lal who was having his licensed gun, Jagannath and Sheo Autar reached there and began to save them from the assault.
The assailants namely Bankey Lal, Chhatrapal and Nanhoon threw down his father Jia Lal on the ground and began to snatch his gun.
In the meantime he ran away from there but when he was running away he heard a gun shot sound.
He did not go to his police station due to fear and, therefore, reached Police Station Kotwali, Fatehpur.
He had also stated about injuries over his head, hand and back caused by lathi blows".
This version, apart from the other infirmities pointed out by the trial court, contradicts the version of Jagannath (D W. 1) that when he first 'sighted ' Jialal the father of Pussu was already firing shots.
The story contained in Exh.
Ka 10 appears to be one spun out after a lot of deliberation.
We have set out above in some detail the prosecution evidence and the defence version only to show how demonstrably the High Court was in error in rejecting the case of the prosecution.
We have already referred to the experiment carried out by High Court at the hearing of the appeal by asking Chhatrapal to run about and an advocate to load a gun in their presence.
Having been impressed by the result of that experiment the High Court first rejected the evidence of Chhatrapal that he had tried to catch hold of Pussu.
The High Court then found that there was a material omission in the information given by Jang Bahadur Singh as "there was no mention about Gaya Prasad having inflicted four or five lathi blows on Pussu and it is only in the trial court that the eye witnesses have asserted that four or five lathi blows were inflicted on Pussu".
Having regard to the several details about the incident given by Jang Bahadur Singh who was in fact not an eye witness, the omission referred to above appears to be a trivial one not affecting credibility of the prosecution version.
The third ground on which the High Court found the prosecution case as not being worthy of acceptance is again a strange one.
The relevant part of the judgment of the High Court reads thus: "The eye witnesses have asserted that after the gun had been snatched away, Pussu freed himself and 307 taking the pistol from appellant Sheo Rakhan fired a fatal shot at Bankey Lal from point blank range.
It is highly improbable that after Pussu had been arrested and disarmed he could be allowed to free himself from the hands of young men like Lakhan Lal, Gaya Prasad and Ram Pal.
The normal conduct of Pussu after he had freed and rearmed himself with pistol would have been to demand the return of his gun from Gaya Prasad on the point of his pistol rather than to pursue his injured victim Bankey Lal and to shoot him dead".
What is improbable about the prosecution version, we fail to see.
If Pussu 's object was to kill Bankey Lal, he would instead of demanding the return of the gun on the point of his pistol, run towards Bankey Lal and shoot at him, which in fact is what he is alleged to have done in this case.
The High Court 's opinion that the normal conduct of a person in the position of Pussu would have been what the High Court has stated in the course of its judgment is a mere surmise.
At any rate on such an imaginary ground the evidence of the eye witnesses could not be rejected.
Another reason given by the High Court is again a supposition resting on no solid ground and that relates to the condition of the gun (Exh.
Ka 1).
The High Court has observed: "None of the eye witnesses has stated that any blow of lathi plied by Gaya Prasad fell on the butt of the gun.
Gaya Prasad has stated that he inflicted four or five lathi blows on Pussu.
The gun was deposited in the Mal Khana at the Police Station and a piece of the wooden part of the butt of the gun was found broken.
This was noted in the recovery memo (Exh.
Ka 1).
The gun was examined by us and we found a wooden piece of the butt having chipped off and the opening lever of the gun had become inoperative.
This could only happen if lathi blow fell on the butt of the gun.
None of the eye witnesses has deposed that any blow from lathi plied by Gaya Prasad registered a hit on the gun.
There is no explanation as to how the wooden butt of the gun (material Exh. 1) got broken and consequently the gun could not be opened.
" In reaching the above conclusion, the High Court has overlooked the evidence of Gaya Prasad (P.W. 7) in his examination in 308 chief that when they were trying to snatch the gun Pussu gave one blow with the butt of the gun on his head and one blow on the head of Ram Gopal and the further statement in his cross examination that on account of its being snatched with jerks, the wood fixed at the lower part of the gun was left in the hands of Pussu himself and that the gun could have been damaged by being used as mentioned above.
The High Court was wrong in holding that the gun could have been damaged only if a lathi blow had fallen on it.
The explanation given by the prosecution is quite satisfactory indeed.
We are not also impressed by the other ground relied on by the High Court that "in cases of emergency is repeated firing a shooter does not normally start collecting empty cartridges automatically ejected from the gun before reloading the gun" and "the non recovery of the fired cartridge either in the breach of the gun or from the spot is a suspicious circumstance" having regard to the overwhelming evidence in this case in support of the prosecution case.
The rule governing the appreciation of evidence in a criminal case is laid down by this Court in State of Punjab vs Jagir Singh & Ors.(1) in which this Court set aside the judgment of acquittal passed by the High Court which had reversed the conviction and sentence imposed by the trial court thus: "A criminal trial is not like a fairy tale wherein one is free to give flight to one 's imagination and phantasy.
It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged.
Crime is an event in real life and is the product of interplay of different human emotions.
In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses.
Every case in the final analysis would have to depend upon its own facts.
Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on the grounds which are fanciful or in the nature of conjectures".
309 We have pointed out above the manifest errors committed by the High Court in the course of its judgment acquitting the accused Pussu.
On a careful reading of the evidence in this case, we feel that Jia Lal had out of love and affection towards his son from the beginning tried to shield Pussu but has ultimately not been successful.
From the evidence it is obvious that Pussu and Sheo Rakhan were armed with fire arms and they were the aggressors.
The plea of self defence urged on behalf of Pussu cannot be accepted.
A person who is an aggressor and who seeks an attack on himself by his own aggressive attack cannot rely upon the right of self defence if in the course of the transaction he deliberately kills another whom he had attacked earlier.
In the instant case having regard to the nature of the weapon used it has to be held that the act by which the death of Bankey Lal was caused by Pussu was done with the intention of causing death, and we do not find any extenuating circumstances which would mitigate the offence committed by Pussu.
The trial court was, therefore, right in convicting Pussu of an offence punishable under section 302 I.P.C.
The acquittal of Sheo Rakhan does not affect the prosecution case against Pussu.
There is no legal bar for convicting Pussu alone in this case on the facts and in the circumstances of the case.
The principle of issue estoppel is inapplicable here.
This is not a case in which it could be said that two views were reasonably possible.
The only reasonable view to be taken is the one taken by the trial court.
We are aware of the rule of practice that ordinarily this Court should not interfere with judgments of acquittal on a mere re appreciation of evidence.
But if there are glaring infirmities in the judgment of the High Court resulting in a gross miscarriage of justice, it is the duty of this Court to interfere.
In the instant case we find that the approach of the High Court is basically erroneous and its judgment is founded on false assumptions, conjectures and surmises.
On a consideration of the entire mass of evidence adduced in this case we are satisfied that the prosecution has established beyond reasonable doubt that Pussu had committed the murder of Bankey Lal.
In cases of this nature it is advisable to bear in mind the following observations of Krishna Iyer, J. in Shivaji Sahebrao & Anr.
vs State of Maharashtra(1) at pages 492 493: 310 "Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation.
The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape.
The judicial instrument has a public accountability.
The cherished principles or golden thread of proof beyond reasonable doubt which runs thro ' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt.
The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr should not suffer is a false dilemma.
Only reasonable doubts belong to the accused.
Otherwise any practical system of justice will then break down and lose credibility with the community.
The evil of acquitting a guilty person lightheartedly as a learned author Glanville Williams in 'Proof of Guilt ' has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons ' and more severe punishment of those who are found guilty.
Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless.
For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent. " In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic.
" In the result, we set aside the judgment of the High Court in so far as Pussu is concerned and restore his conviction for the offence punishable under section 302 I.P.C. as ordered by the trial court.
As regards sentence we feel that ends of justice would be met if we impose the punishment of imprisonment for life on him.
We 311 accordingly sentence Pussu to imprisonment for life.
We also restore the conviction of Pussu for the offences punishable under sections 307 I.P.C., 323 I.P.C. and section 27 of the Arms Act and the sentences imposed on him on that account as ordered by the trial court.
All the sentences shall run concurrently.
The appeal is accordingly allowed.
Pussu is on bail.
He is directed to surrender in accordance with the terms of his bail and undergo the punishment imposed on him.
P.B.R. Appeal allowed.
| The first respondent, Municipal Corporation of Delhi, put up an advertisement in the press on 30 12 1978 for filling up 8 posts of Assistant Engineers (Civil) by direct recruitment.
Pursuant to the interviews held in this behalf a list of selected candidates out of Graduate Junior Engineers was prepared and approved on 2.5.1979.
The list was pending final decision about the appointment of the direct recruits selected for these 8 posts.
By its office order dated 10.4.1978 the first respondent entrusted 6 diploma holders Junior Engineers with current duty charge of the posts of Assistant Engineers and by office order dated 21.6.1979 promoted two diploma holder Junior Engineers as Assistant Engineers on current duty charge.
Feeling that the proposed direct recruitment would be detrimental to their interest, the petitioners, who were diploma holder Junior Engineers of the first respondent, filed writ petition No. 221 of 1979 under article 32 of the Constitution, praying for directions to be issued to the first respondent to restrain the first respondent from recruiting Assistant Engineers directly; to give effect to the recommendations of the Third Pay Commission regarding the rules and policy of promotion etc; to reckon the seniority of the petitioners with their length of service and not to affect in any manner all those holding adhoc charge and current duty charge.
The petitioners also prayed for quashing the seniority list dated 2.9.1978 (Annexure G in writ petition 1194 of 1979), The petitioners contended that the first respondent should have suspended the direct recruitment of Assistant Engineers and that the rule prescribing a quota of 50 per cent by promotion and 50 per cent by direct recruitment laid down in the recruitment regulations dated 27.6.1970 should not be followed.
The petitioners submitted that the first respondent Corporation had been following the pattern of functioning current in the Central Public Works Department (C.P.W.D.) in all matters of recruitment, promotion and other conditions.
The C.P.W.D. had decided in August, 373 1975 to suspend direct recruitment in Central Engineering Service w.e.f. 1.4.1972.
The first respondent had taken a decision by passing resolutions in 1970 and 1971 to the effect that all fundamental rules and supplementary rules including amendments and orders issued by the Central Government shall be treated as rules etc.
issued by respondent I. The Central Government had power of general superintendence over the first respondent and it had informed the first respondent by letter dated 23.2.1976 that consequent upon recommendations of the Third Pay Commission direct recruitment may be banned by respondent I as had been done by the C.P.W.D.
The 27th respondent in writ petition 1194 of 1979 contended that since there were only 60 posts of Civil Engineers when the Recruitment Regulations dated 27.6.1970 were made those Regulations could apply only to 60 posts of Assistant Engineers and direct recruits would be entitled to only 30 posts and they were not entitled to further posts by direct recruitment now as they had already been given 36 posts.
The graduate Junior Engineers whose names were on the select list, along with others, filed writ petition No. 1194 of 1979 under article 32 of the Constitution praying for directions to be issued to the first respondent to fill up 8 posts of Assistant Engineers from amongst those in the Select Panel; to fill up the remaining posts of Assistant Engineers in the direct recruitment quota from amongst the empanelled petitioners; to grant revised pay scale of Rs. 550 900 to the petitioners and other Graduate Junior Engineers w.e.f.
the date it was made applicable in the C.P.W.D.; to revise special pay from Rs. 40 to Rs. 75 per mensem w.e.f. 1.1.1979.
The petitioners also prayed for quashing office orders dated 10.4.1978 and 21.6.1979; declaring the Graduate Junior Engineers as a separate category and giving them equal quota under the departmental promotee quota in the posts of Assistant Engineers; and also declaring that the Graduate Junior Engineers in the service of respondent I are entitled to be put on par with their counterparts in other Government Departments.
The petitioners urged that even though a statutory duty was cast on the first respondent to fill up the posts of Assistant Engineers on 50:50 basis, 26 posts of Assistant Engineers in the direct recruitment quota were kept unfilled and only 8 posts were advertised.
The respondent I had not filled up even those 8 posts with candidates from the select list but had in violation of the rights of the petitioners guaranteed under article 16 of the Constitution promoted Junior Engineers with diploma on current duty charge.
Under the Central Civil Service Rules, 1973 and on the basis of the Third Pay Commission 's report the petitioners who were graduate Junior Engineers were entitled to the pay scale of Rs. 550 900.
The petitioners submitted that since they were similarly circumstanced with those other graduate Engineers in class 3 service in other Government departments there was no just or valid reason to discriminate the petitioners qua the other graduate Junior Engineers in class 3 service in other Government departments.
Dismissing writ petition 221 and partly allowing writ petition 1194, ^ HELD: There is nothing wrong in the respondent 1 Corporation proceeding to appoint Assistant Engineers (Civil) by direct recruitment as per the Recruitment Regulations or in fixing the 50:50 quota [and working it out or in the selection of the petitioners in Writ Petition 1194 of 1979 as Assistant 374 Engineers pursuant to the decision to appoint 8 Assistant Engineers (Civil) by direct recruitment.
[403 D H] The Municipal Corporation of Delhi which is a statutory authority is not automatically bound by any decision that may be taken by the C.P.W.D. in regard to direct recruitment of Assistant Engineers and it is open to the Corporation to adopt any policy of the C.P.W.D. by a resolution when alone that policy will become binding on the Corporation.
No provision in the Third Pay Commission 's Report has been brought to the notice of the Court.
On the other hand it is admitted that there is no resolution of the Delhi Municipal Corporation banning or suspending direct recruitment of Assistant Engineers for 7 years or any period from any date whatsoever.
The Central Government 's letter dated 23.2.1976 does not contain any direction which could be issued by the Central Government under sec.
487 of the Act and is not binding on respondent I.
The 50:50 quota fixed in the Recruitment Regulations approved on 27.6.1970 has not been altered but has been approved by the Corporation in its Resolution No. 348 dated 10.7.1978.
[400 C F] A.K. Subbaraman & Ors.
vs Union of India, (1975) 2 S.C.R. 979 referred to.
Respondent I is admittedly bound by the Recruitment Regulations made with the approval of the Central Government as required by sec.
480(2) of the Delhi Municipal Corporation Act and it shall fill the remaining posts of Assistant Engineers in the direct recruitment quota which are kept vacant in the seniority list dated 2.9.1978 and any further posts which might have become available thereafter or become available in view of the decision in these two Writ Petitions or otherwise in accordance with those Recruitment Regulations.
[403 H, 404 A B] The quota fixed in the Recruitment Regulations cannot be restricted to only 60 posts of Assistant Engineers which were in existence on the date of their approval.
The Recruitment Regulations themselves do not say that they are retrospective in operation from 1958.
Prima facie those Regulations would apply to all future recruitments and promotions.
That is how they have been understood by the authorities of respondent I Corporation when they decided to have 8 posts of Assistant Engineers filled up by direct recruitment though at that time there were 36 directly recruited Assistant Engineers holding more than 50 per cent of 60 such posts.
[400 H, 401 A B] The seniority list dated 2.9.1978 (Annexure G in Writ Petition 1194 of 1979) which was prepared after hearing all concerned does not appear to have been objected to before or after it was finalised except in Writ Petition 221 of 1979.
In that seniority list 130 posts of Assistant Engineers are mentioned by placing one promotee and one direct recruit alternatively according to their seniority.
The petitioners in Writ Petition 221 of 1979 are only Junior Engineers whereas the seniority list relates to Assistant Engineers.
It is not the case of the petitioners in Writ Petition 221 of 1979 that their seniority as Junior Engineers has not been fixed properly.
They are only Junior Engi 375 neers and consequently they cannot question the correctness of the seniority list dated 2.9.1978 relating to Assistant Engineers.
As they have not yet been regularly appointed or promoted as Assistant Engineers they cannot have any grievance about their names not being mentioned in that seniority list.
Therefore, there is no need to quash the seniority list dated 2 9 1978 or to give any direction to respondent I to reckon the seniority of the petitioners with the length of their services.
[401 C E, 410 H, 411 A B] Continuing Current Duty Charge and Adhoc appointments for period exceeding the period of one year mentioned in the memorandum dated 30.12.1976 of the Government of India is irregular though that Memorandum could not be stated to be automatically binding on respondent I.
What is totally wrong is that appointment of Junior Engineers on Current Duty Charge as Assistant Engineers has been made by the impugned order dated 21.6.1979 even after the approval of the select list prepared for the appointment of 8 Assistant Engineers without issuing orders for appointment even to 8 out of those persons who are in the select list.
The appointment of 6 Diploma Holder Junior Engineers by the order dated 10.4.1978 (Annexure I) and of 2 such Junior Engineers by the order 21.6.1979 (Annexure M) as Junior Engineers on Current Duty Charge for periods which are proved to be too long is irregular and the same is quashed.
Respondent I shall issue orders of appointment to 8 Degree holder Junior Engineers out of those in the select list approved on 2.5.1979 within one month from this date and complete the appointment of Assistant Engineers for the remaining posts on regular basis in accordance with the quota fixed in the Recruitment Regulations within six months from this date until which time the Current Duty Charge holder and Adhoc appointees according to seniority will continue to man the remaining posts.
Respondent I shall not make Current Duty Charge/Adhoc appointments and promotions except strictly and truly in accordance with the instructions and Regulations and other instructions, if any, issued in that regard.
[408 H, 409 A E] Declaring the petitioners Graduate Engineers as a separate category amongst Junior Engineers and giving them equal quota like the Diploma holder Junior Engineers out of the 50 per cent for promotion as Assistant Engineers, cannot be done except by carving out two classes in the same category of Junior Engineers on the basis merely of their qualification which is not permissible in law though the creation of selection grade in the same category on the basis of merit and seniority is well known and permissible.
The Junior Engineers do the same kind of work and bear the same responsibilities whatever their qualification, whether they are degree holders or diploma holders.
[411 C E] section B. Patwardhan vs Maharashtra, ; referred to.
The petitioners in Writ Petition 1194 of 1979 cannot be allowed to blow hot and cold.
In regard to the policy of suspension of direct recruitment of Assistant Engineers (for 7 years w.e.f. 1.4.1972) their contention is that the policy of the C.P.W.D. cannot apply automatically to the Corporation until it is adopted by a resolution.
Now in regard to the planning allowance they 376 cannot be heard to say that the revision should be made automatically from 1.1.1979 following the C.P.W.D. pattern.
Evidently, the Corporation has resolved to grant the upward revision only from 19.5.80.
The petitioners are not entitled to claim the revision from 1.1.1979 itself and they have to be satisfied with the revision effected from 19.5.80.
[410 C E]
|
Civil Appeal No.2139 of 1970.
From the Judgment and Decree dated August 25, 1969 of the High Court of Bombay in Appeal No. 406 of ]964 from Original n Decree.
N. H. Hingorani, Mrs. K. Hingorani and Mrs. Rekha Pandey for the Appellant.
O. P. Sharma and Miss. ,4.
Subilashini for the Respondent.
The Judgment of the Court was delivered by VENAKTARAMIAH, J.
This appeal by Special Leave involves the question whether the provisions of the (Act XIX of 1952) (herein after referred to as 'the Act ') were applicable on the date of the suit out of which this appeal arises to the factory which was purchased by the appellant in the year 1955 in certain liquidation proceedings.
Prior to December, 1954 a company called 'Hirji Mills Ltd. ' was carrying on the business of manufacture and sale af textile goods in its factory situated at Fergusson Road, Lower Parel, Bombay.
That company was ordered to be wound up by the High Court of Bombay and its assets were ordered to be sold by the Official Liquidator.
At the sale held by the Official Liquidator, the appellant which was a Public Limited Company, purchased the above said factory.
It is stated that the workmen had been discharged earlier and the goodwill of the company in liquidation had not been 519 acquired by the appellant.
There was discontinuance of the work of A the factory for some time.
The appellant restarted the factory on November 12, 1955.
The appellant claims that it invested some fresh capital in the business, renovated the machinery and also employed workmen on fresh contracts though about 70 per cent of the workmen were formerly working in that factory.
It is also contended that the appellant commenced to produce certain new types of goods at the factory after obtaining a new licence to run it.
When by the end of February, 1956 the Regional Provident Fund Commissioner made certain enquiries about the working of the factory in order to enforce the Act against it, the appellant wrote to him stating that the factory was an infant factory as it had established it on November 12, 1955 and the period of three years had not elapsed from that date.
The appellant claimed exemption from the operation of the Act relying upon section 16 (1) (b) thereof.
When the Regional Provident Fund Commissioner was not convinced about its explanation the appellant filed a writ petition under Article 226 of` the Constitution before the High Court of Bombay in Miscellaneous Application No. 76 of 1957 challenging the applicability of the Act to the factory.
That petition was, however, withdrawn.
Later on the appellant filed a suit before the City Civil Court at Bombay in Short Cause Suit No. 2088 of 1958 for a declaration that the Act and the scheme framed thereunder could not be enforced against the factory until the expiry of three years from November 12, 1955 and that the appellant was not liable to make any contributions under the Act.
The appellant also prayed for an injunction against the Regional Provident Fund Commissioner restraining him from enforcing the Act against the factory.
The suit was resisted by the Regional Provident Fund Commissioner.
He contended that the Act was applicable to the factory when it was in the hands of Hirji Mills Ltd. (the company under liquidation) and hence it did not cease to apply merely because there was discontinuance in the working of the factory for a short period and there was change Of ownership.
It was also pleaded that the factory could not be treated as having been newly established on November ' 2, 1955 and hence the exemption under section 16 (1) (b) of the Act was not available.
The trial court dismissed the suit with costs.
The trial court while negativing the contention of the appellant observed thus: "If a factory was closed down and after it had gone into liquidation the factory is dismantled by the liquidator and the liquidator sold the various assets as scrap it would be a different matter but in the present case having regard to the recitals in the Deed of Conveyance dated 5th December 1955 520 exhibit A it cannot be disputed that the Plaintiffs have in fact purchased all the assets (a) lands, hereditaments and premises, (b) buildings, godowns, structures and sheds and (c) the plant and machinery and other movables from Hirji Mills (in Liquidation) and Official Liquidator and others and what is more after making such purchase they have been utilizing the said same assets particularly same factory premises and same plant and machinery with a few additions to carry on the same business, namely, manufacturing textile goods which was carried on by that factory when it was owned by Hirji Mills Ltd. with 65 to 70 per cent of the old staff and workmen of Hirji Mills Ltd. From these facts it cannot be said that the intention while effecting the transfer of all the several assets from the former owners to the owners was that the old factory should become defunct or non existent and a new factory was intended to be established.
On the contrary these facts affirm the continuity of the established factory, notwithstanding the fact that the plaintiffs did not purchase it as a going concern.
" The trial court held that in view of the several facts established in the case it could not be presumed that a new factory was established by the appellant on November 12, 1955.
It on the other hand held that the continuity of the old factory had not broken and as such the appellant was liable to make contributions under the Act.
The judgment of the trial court was affirmed by the Bombay High Court in Appeal No. 406 of 1964.
This appeal by Special Leave is filed against the judgment of the High Court.
The facts established in this case are that Hirji Mills Ltd. had been carrying on the business of manufacture of textile goods in the factory` from the year 1931 upto the date of the winding up order which was made on December 17, 1954 and there was stoppage of manufacturing activity in`the factory till November 12, 1955 on which date it was recommenced by the appellants.
The points for consideration are whether in the circumstances in which the appellant came to acquire the factory there was the extinction of the old factory and the establishment of a new factory on November 12, 1955 and whether it could be said that the Act had ceased to apply to the factory on the stoppage of the manufacturing process in it owing to the winding up order.
521 At the outset it has to be stated that the Act has been brought A into force in order to provide for the institution of provident funds for the benefit of the employees in factories and establishments.
Article 43 of the Constitution requires the State to endeavour to secure by suitable legislation or economic organisation or in any other way to all workers, agricultural, industrial or otherwise among others conditions of work ensuring a decent standard of life and full enjoyment of leisure.
The provision of the provident fund scheme is intended to encourage the habit of thrift amongst the employees and to make available to them either at the time of their retirement or earlier, if necessary, substantial amounts for their use from out of the provident fund amount standing to their credit which is made up of the contributions made by the employers as well as the employees concerned.
Therefore, the Act should be construed so as to advance the object with which it is passed.
Any construction which would facilitate evasion of the provisions of the Act should as far as possible be avoided.
Section 1 (3) of the Act during the relevant period declared that subject to section 16 thereof, it applied to every establishment which a factory engaged in any industry specified in Schedule I thereof and in which fifty or more persons were employed.
The material part of section 16 of the Act as it stood at the relevant time alongwith the marginal note read as follows: " 16, Act not to apply to factories belonging to Government or Local Authority and also to infant factories F (1) This Act shall not apply to (a) any factory belonging to the Government or a local authority; and (b) any other factory, established whether before or after the commencement of this Act, unless three years have elapsed from its establishment.
Explanation: For the removal of doubts, it is hereby declared that the date of the establishment of a factory shall not be deemed to have been changed merely by reason of a change of the premises of the factory. " 522 The Act being a beneficent statute and section 16 of the Act being a clause granting exemption to the employer from the liability to make contributions, section 16 should receive a strict construction.
If a period of three years has elapsed from the date of the establishment of a factory, the Act would become applicable provided other conditions are satisfied.
The criterion for earning exemption under section 16(1) (b) of the Act is that a period of three years has not yet elapsed from the date of the establishment of the factory in question.
It has no reference to the date on which the employer who is liable to make contributions acquired title to the factory.
The Act also does not state that any kind of stoppage in the working of the factory would give rise to a fresh period of exemption.
The work in a factory which is once established may be interrupted on account of factory holidays, strikes, lock outs, temporary breakdown of machinery, periodic repairs to be effected to the machinery in the factory, non availability of raw materials, paucity, of finance etc.
It may also be interrupted on account of an order of court like the one we are confronted with in this case.
Interruptions in the running of a factory which is governed by the Act brought about by any of the reasons mentioned above without more cannot be construed as resulting in the factory ceasing to be a factory governed by the Act and on its restarting it cannot be said that a new factory is or has been established On the resumption of the manufacturing work in the factory, it would continue to be governed by the Act.
In Chagganlal Textile Mills Pvt. Ltd. vs P.A. Bhaskar(1) on the file of the Bombay High Court which is one of the earliest decisions delivered on the above question (which is unreported), Justice Tendolkar observes thus: "The important point to notice about this provision is that the Act is made applicable to factories and not to P the owners thereof; or, in other words, it applies to factories irrespective of who the owners from time to time may be." The learned Judge proceeds: "The question is whether the order of liquidation and the consequent temporary discontinuance of business until a lease was granted to Kotak and Company has the consequence of making the factory which was established cease (1) Misc.
Appln.
No. 289 of 1956 disposed of on November 5, 1956.
523 to be established.
In my opinion the answer to this question must be in negative.
A temporary cessation of the activities of an established factory cannot lead to the result that the factory ceases to be established for the purposes of the Employees ' Provident Funds Act, for if it did, the class of employers who spare no ingenuity in seeking to deprive the employees of all the benefits conferred upon them by statute would have convenient handle whereby the activities of an established factory have to be discontinued for a few months in order to deprive the employees of the benefits under the Employees ' Provident Funds Act.
I take it that the establishment of a factory involves that the factory has gone into production and no more. but once it goes into production, a temporary cessation of its activities, for whatever reasons that cessation takes place cannot in my opinion, take the factory out of the category of an established factory for the purposes of the Employee 's Provident Fund Act.
" Towards the conclusion of his judgment, the learned Judge says that: ' "Even a complete change in the whole body of employees cannot make a factory which is established, cease to be established.
In any event, the Employees ' Provident Funds Act is a beneficial legislation for the benefit of the employees and every construction of its provisions which would defeat the object of the legislation and lead to an evasion must be rejected, unless the clear language of the Act leaves no option to the Court but to accept such an interpretation.
" The above statement appears to us to lay down the law correctly.
We find that this view has been followed in Messrs Bharat Board Mills Ltd. vs The Regional Provident Fund Commissioner & Ors.,(1) Vegetable Products Ltd. vs Regional Provident Fund Commissioner, W. Bengal & Ors.
,(2) Jamnadas Agarwalla & Anr vs The Regional Provident Fund Commissioner, West Bengal & Ors.,(3) Robindra Textile Mills vs Secretary, Ministry of Labour, Govt.
Of India, New (1) (2) A I.R. (3) 524 Delhi & Anr.(1) and Hindustan Electric Co. vs Regional Provident Fund Commissioner, Punjab & Anr(2), Regional Provident Fund Commissioner Punjab & Anr.
vs Lakshmi Ratten Engineering Works Ltd.(3) (affirmed in item 2 infra).
A similar view has been taken by the Madras High Court in M/s. R.L. Sahni & Co vs Union of India, represented by the Regional Provident Commissioner, Madras & ,Anr (4) in which it was held that it could not be postulated that each time when there was a change of hands, a new establishment came into existence.
In Kunnath Textiles vs Regional Provident fund Commissioner(6) and in The New Ahmedabad Bansidar Mills Pvt.
Ltd. Ahmedabad vs The Union of India &; Ors.(6) also the same view has been taken.
In Lakshmi Ratten Engineering Works vs Regional Provident fund Commissioner, Punjab & Ors (7) which was filed by one of the parties to the appeal before the Punjab High Court in Regional Provident Fund Commissioner, Punjab & Anr.
vs Lakshmi Ratten Engineering Works Ltd (supra) against the judgment rendered therein, this Court has held while affirming the said judgment that the words in section 16 (1) (b) of the Act were quite clear and they left no room for doubt that the period of three years should be counted from the date on which the factory was first established and the fact that there had been a change in the ownership made no difference to the counting of that period This is not a case where the old factory was reduced into scrap and a new factory was erected in its place.
Nor can it be said that there was total discontinuity brought about between the old factory and the factory which was restarted after the appellant purchased it.
The stoppage of production was brought about temporarily as stated earlier by the winding up order and the factory was restarted after it was sold to the appellant by the Official Liquidator.
The finding of fact recorded by the trial court in this case which is affirmed by the High Court clearly establishes that it was the same old factory which recommended production on November 12, 1955.
What is of significance is that a substantial number of workmen (1) A.I.R. 1958 Punjab 55, (2) A.I.R. 1959 Punjab 27.
(3) (4) A.l.
R. (5) (6) A.I.R. 1968 Gujarat 71.
5 7) 1966 I Labour Law Journal 741.
525 and staff who were working under the former management had been A employed by the appellant though it is claimed that they had entered into new contracts of employment.
Mere investment of additional capital or effecting of repairs to the existing machinery before it was restarted, the diversification of the lines of production or change of ownership would not amount to the establishment of a new factory attracting the exemption under section 16 (l) (b) of the Act for a fresh period of three years.
On behalf of the appellant, reliance was placed on the decision of this Court in Provident Fund Inspector, Trivandrum vs Secretary, N.S.S. Co operative Society, Changanacherry.(1) That was a case in which the Secretary of a Co operative Society which owned a press had been acquitted by the Magistrate of the charge of not complying with the provisions of the Act.
The High Court had confirmed the order of acquittal.
On appeal, this Court found that there was no ground to interfere with the acquittal.
The defence of the accused in that case was that the Co operative Society of which he was the Secretary had acquired the press in question in March, 1961 and had established a new press subsequently and hence the Act was not applicable to the press as the period of three years prescribed by section 16 (l) (b) of the Act had not expired The evidence in that case showed that after the purchase, a new owner had come in the place of the former owner, the work of the press was stopped on the date of its sale and was started again after a break of three months, the machinery in the press was also altered and the persons employed previously were not continued in service.
While a fresh recruitment of workmen had taken place, out of those workmen only six happened to be the former employees and compensation had been paid to the workmen at the time of the sale by the former owner.
On these facts it was held that a new establishment had come into existence.
In the case before us, it is seen that about 70 per cent of the former workmen had been employed by the appellant and there was no change of machinery.
Further this is a case where the interruption of work had taken place owing to the order in the winding up proceedings.
It is relevant to state here that this Court in the course of its judgment in the above case did not overrule the decision of the Calcutta High Court in Messrs Bharat Board Mills Ltd. (supra) but only distinguished it.
The facts of that case more or less corresponded to the facts of the case before us.
It is true that this Court in the above decision approved the decision of the (1) ; 526 Madras High Court in Vithaldas Jagannathdas & Anr.
vs The Regional Provident Fund Commissioner, Madras & Anr.(1) but that does not make any difference so far as the case before us is concerned since in the Madras case there was a finding that in reality the old establishment had come to an end and there was a new establishment.
In the case before us, the finding of fact of the trial court is to the contrary.
The learned trial judge has held that the intention in this case was to maintain the continuity of the old factory.
Hence the decision on which reliance is placed being distinguishable on facts is not of much use to the appellant.
In the circumstances, we do not find that there is any infirmity in the judgment under appeal.
The appeal, therefore, fails and is hereby dismissed with costs.
S.R. Appeal dismissed.
| At the sale held by the Official Liquidator under the orders of the Bombay High Court, the appellant a public limited company, purchased the "Hirji Textile Mills" minus its goodwill and its workmen who were discharged earlier.
The appellant invested some fresh capital in the business, renovated the machinery and employed workmen on fresh contracts which included 70% of the workmen formerly working in that factory and commenced to produce certain never types of things at the factory w.e.f. November 12, 1955, after obtaining a new licence to run it.
When by the end of February, 1956 the Regional Provident Fund Commissioner made certain enquiries about the working of the factory in order to enforce the provisions Provident Fund Act against the appellant, the appellant wrote to him stating that The factory was an infant factory having been established on November 12,1955 and the period of three years had not elapsed from that date within the meaning of Section 16(1) (b) of the Act.
When the Regional Provident Fund Commissioner was not convinced about its explanation, the appellant first filed a writ petition under Article 226 of the Constitution before High Court of Bombay in Miscellaneous Application No. 76 of 1957 challenging the applicability of the Act to the factory and after withdrawing it, filed Short Cause Suit No. 2088 of 1958 before the City Civil Court at Bombay for a declaration that the Act and the scheme framed thereunder could not be enforced against the factory until the expiry of three years from November 12, 1955 and that the appellant was not liable to make any contributions under the Act.
The trial Court dismissed the suit holding, that in view of the several facts established in the case it could not be presumed that a new factory was established by the 517 appellant on November 12, 1955, that the continuity of the old factory had A not been broken and as such the appellant was liable to make contributions under the Act.
The judgment of the trial Court was affirmed by the Bombay High Court in Appeal No.406/64.
Hence the appeal by special leave.
Dismissing the appeal, the Court, ^ HELD: 1.1.
Every statute should be construed so as to advance the object with which it is passed and as far as possible, avoiding any construction which would facilitate evasion of the Act.
[521 C] 1.2.
In consonance with the directions enshrined in Article 43 of the Constitution, Employees ' Provident Fund Scheme is intended to encourage the habit of thrift amongst the employees and to make available to them either at the time of their retirement or earlier, if necessary, substantial amounts for their use from out of the provident fund amount standing to their credit which is made up of the contributions made by the employers as well as the employees concerned.
The Act being a beneficent statue and section 16 of the Act being a clause granting exemption to the employer from the liability to make contributions, section 16 should receive a strict construction [521A B, 522A] 2.1.
The criterion for earning exemption under section 16(1)(b) of the Act is that a period of three years has not yet elapsed from the date of establishment of the factory in question.
It has no reference to the date on which the employer who is liable to make contributions acquired title to the factory which once established may be interrupted on account of factory holidays, strikes, lock outs, temporary breakdown of machinery, periodic repairs to be effected to the machinery in the factory, non availability of raw materials, paucity of finance etc., and also on account of an order of court as in the present case.
Interruptions in the running of factory which is governed by the Act brought about by any of these reasons without more cannot be construed as resulting in the factory ceasing to the factory governed by the Act and on its restarting it cannot be said that a new factory is or has been established.
On the resumption of the manufacturing work in the factory it would continue to be governed by the Act which does not state that any kind of stoppage in the working of the factory would give rise to a fresh period of exemption.
In other words the period of three years should be counted from the date on which the factory was first established and the fact that there had been a change in the owners p makes no difference to the counting of period.
[522A D, 524D E] Lakshmi Rattan Engineering Work vs Regional Provident Fund Commissioner, Punjab & Ors.
SC, reiterated.
Chaganlal Textile Mills Pvt.
Ltd. Y.P.A. Bhaskar Misc.
Appln.
No. 289 of 1956 disposed of on November 5, 1956: M/s. Bharat Board Mills Ltd. vs The Regional Provident Fund Commissioner & Ors.
Vegetable Products Ltd. vs Regional Provident Fund Commissioner W. Bengal & Ors. ; Jamnadas Agarwala & Anr.
vs The Regional Provident Fund Commissioner West Bengal & Ors. ; 518 Robindra Textile Mills vs Secretary Ministry of Labour Govt.
of India New Delhi & Anr A.I.R. 1936 Punjab 55.
Hindustan Electric Co. Ltd. vs Regional Provident Fund Commissioner Punjub & Anr.
A I.R 1959 Punjab 27 Regional Provident Fund Commissioner Punjab & Anr.
v Lakshmi Rattan Engineering Works Ltd M/s.
R.L. Sahni & Co vs Union of India represented by the Regional Provident Commissioner Madras & Anr.
A.l.R. ; Kunnath Textile vs Regional Provident Fund Commisioner ; The New Ahmedabad v Bansidar Mills Pvt Ltd. Ahmedabad vs Union of India & Ors.
A I R. 1968 Gujarat 71; approved.
Provident Fund Inspector Trivendrum vs Secretary N.S. section Co operative Society Changanacherry ; Vithaldas Jagnnathdas & Anr.
vs The Regional Provident Fund Commissioner Madras & Anr.
; distinguished.
|
Parties will hear their own costs, V.P.S. Appeals dismissed.
Appeal by special leave from the judgment and order dated the 3rd November, 1953 of the High Court of Judicature at Nagpur in Criminal Appeal 1144 No. 220 of 1953 arising out of the judgment and order dated the 21st July 1953 of the Court of Sessions Judge at Jabalpur in Sessions Trial No. 32 of 1953.
H.J. Umrigar and Rajinder Narain, for the appellant.
The courts below were wrong in convicting the appellant of murder under section 302 of the Indian Penal Code in the absence of a charge framed for the offence.
The charge framed against the appellant was different and he was never charged individually of having committed murder.
When the other person was acquitted the charge of an offence under section 302 read with section 34 of the Indian Penal Code falls and the appellant is bound to be acquitted.
It is a fundamental principle of criminal law as administered in India that there should be a separate charge for every distinct offence as the accused person must have notice of the charge which he has to meet.
The only exceptions are contained in sections 236, 237 and 238 of the Code of Criminal Procedure.
The offence of murder under section 302 of the Indian Penal Code being separate, distinct and different from an offence under section 302 read with 34 or an offence under section 302 read with 149 which creates a distinct head of criminal liability known as constructive liability a conviction under section 302 simpliciter without a charge being framed therefor is an illegality in the mode of trial.
Where a person has been convicted of an offence with which he has not been charged (unless allowed by exceptions) the prejudice is inherent in the absence of the charge itself and it is unnecessary to look any further.
Where there is an illegality in the mode of trial as contemplated in sections 233 to 239 it is an illegality, which is not cured by the provisions of sections 535 and 537.
There is no difference in principle between a charge under section 302 read with 34 and a charge under section 302 read with 149 [See: Nanak Chand vs State of Punjab ([1955] 1 S.C.R.1201), Suraj Pal vs State of U. P. ; It is incorrect to say that the decision of the Privy Council in Subramania Iyer 's case as to what is an illegality has been modified by the subse 1145 quent decisions of the Privy Council, and, in fact, in Babulal Chowkhani 's case Lord Wright in delivering the judgment of the Board actually stated that it was taken as settled law by both sides that the breach of the provisions of section 239 of the Code of Criminal Procedure would be an 'illegality ' which would vitiate the trial as opposed to a mere 'irregularity ' which would not vitiate the trial.
Section 535 appears in Chapter XLV of the Code and is headed "Of irregular proceedings" and cannot possibly apply to breaches of the mandatory provisions of sections 233 to 239 of the Code; it may relate to those cases where it is optional to frame a charge.
See sections 263, 362(4).
Assuming that actual prejudice is necessary, then as the only charge against the appellant being one under section 302 read with section 34, and that having failed due to the acquittal of the co accused, and the appellant having successfully shown that there was no "common intention" as contemplated by section 34 of the Indian Penal Code prejudice is bound to occur due to his conviction under section 302 simpliciter, with which he was never charged.
In any event, the 1146 offence committed in the case, even though the blow was struck on the head, could never be murder, as even the medical evidence showed that the bead injury "was likely" to result in fatal consequences.
The offence committed would either be one of grievous hurt under section 325, or alternatively, it is covered by exception 4 to section 300, and punishable under the second part of section 304.
B.Sen and I. N. Shroff, for the respondent.
The word 'illegality ' which is frequently used in the judgments is nowhere defined in the Code of Criminal.
Procedure.
This word had been used by the judges to convey that the trial has been irregular and the irregularity is not curable under the provisions of the Code.
The word has been used in three senses, namely: (a) In cases where the trial and conviction are ab initio void due to some inherent defect, which goes to the root and is by itself enough to vitiate the trial, as in cases of lack of jurisdiction, e.g., where section 197 of the Code has not been complied with; (b) In cases where a mandatory prohibition of the Code has been disregarded and it is apparent from the provision itself that, having regard to its objects and purposes, such disregard is bound to lead to prejudice; (c) In a more popular sense, that is, in respect of a particular case or cases where having regard to the facts and circumstances, whether it be due to prejudice or otherwise, the conviction cannot be sustained.
Proceeding on the basis that an offence under section 302 read with section 149 is a distinct and separate offence from an offence under section 302, the question is whether in the absence of actual prejudice the conviction of a person of the latter offence, when he is only charged with the former, is illegal.
The answer depends on the determination as to whether the failure to frame a charge is such a disregard of the mandatory Provisions of the Code so as to lead to the conclusion that prejudice must have been caused.
In N. A. Subramania Iyer vs King Emperor ([1901] 28 I.A. 257) the decision was based on the facts of the case in which actual prejudice was caused.
In any event, that decision stands modified by the 1141 decisions of the Privy Council in the later cases: [See, Abdul Rahman vs The King Emperor ([1926] 54 I.A. 96) and Pulukuri Kotayya and Others vs King Emperor ([1946] 74 I.A. 65).
It is clear from those decisions that every breach of a mandatory provision is not such as would ipso facto vitiate a trial.
If one looks at the relevant sections, the object behind the enactment of those provisions and the intention of the legislature, it is clear that the framing of a charge though mandatory is not of a vital nature.
See sections 210, 254,271, 221, 222, 223, 225, 226, 227, 232 and 535.
All that the Code contemplates is that an accused person must in fact receive notice of what be is being tried for.
When a person is charged with an offence under section 302 read with section 149 of the Indian Penal Code there is no objection to his being convicted under section 302 without a charge being framed, if it appears from the evidence that he has committed the actual murder and it appears from the record that either by the trend of cross examination or by reason of questions being put to him under section 342 he understood that he was actually being tried for murder: [See Karnail Singh and Another vs The State of Punjab ([1954].
8 C.R. 904) and Lachman Singh and Others vs The State ([1952] S.C.R. 839)].
A case of this nature may even be covered by the provisions of section 237 of the Code of Criminal Procedure.
The cases of Nanak Chand vs State of Punjab ([1955] 1 S.C.R. 1201) and Suraj Pal vs State of U.P. ([1955] 1 S.C.R. 1332), do not lay down the proposition that even in the absence of prejudice conviction of a person under section 302 who is charged with an offence under section 302 read with section 149, would be ipso facto illegal.
Whatever view the Court takes in respect of a conviction under section 302 when a person is charged with section 302 read with section 149, it is quite clear that a person can be validly convicted of murder when he is charged with section 302 read with section 34.
Section 34 does not create a specific offence and a person who is charged under section 302 read with section 34 is really being charged for his act in the murder itself.
It is therefore not necessary to frame a separate charge under section 302.
The Privy Council as well as the High 1148 Courts in India have always taken this view.
See ' The King Emperor vs Barendra Kumar Ghose (A.I.R. , Emperor vs Destrali ([1930] , Debiprasad Kalowar vs Emperor ([1932] , Devki Nandan and Others vs Emperor (A.I.R. 1941 Lah. 423) and Bhondu Das vs King Emperor ([1928] 7 Patna 758).
In this case there was no actual prejudice as the accused knew that he was being charged with murder which is clear from the trend of cross examinations of witnesses and his examination under section 342 of the Code of Criminal Procedure.
The facts clearly show that the offence committed by the accused is one of murder as the deceased died as a result of injuries and the injury was sufficient to cause death according to the doctor 's evidence.
Umrigar in reply.
If section 535 is given its literal meaning it would mean that a trial for any offence could be held and terminated without the framing of any charge whatsoever.
It would also mean that a person could be charged with a minor offence and convicted of a major offence, whereas section 238(2) only allows conviction of a minor offence without a charge, if the major offence with which the person is charged is not made out.
Such a wide meaning which would lead to absurdities should not be given to section 535.
October 31.
The judgment of section R. Das, Acting C.J. and Bose J. was delivered by Bose J.
The judgment of Jagannadhadas and Chandrasekhara Aiyar JJ.
was delivered by Chandrasekhara Aiyar J. Jafer Imam J. delivered a separate judgment.
This appeal was referred to a Bench of five Judges in order to determine whether there was a conflict of view between Nanak Chand vs The State of Punjab(1) and Suraj Pal vs The State of U.P.(2) and (1) [1955] I S.C.R. 1201.
(2) ; 1149 if so, to determine it.
The appeal is against a conviction for murder in which the lesser sentence was given.
The main ground is that the appellant was charged under section 302 of the Indian Penal Code read with section 34.
But the Courts below hold that the appellant inflicted the fatal blow and have made him directly liable for the murder.
He contends that as he was not charged with having murdered the man personally be cannot be convicted under section 302.
He relies on certain observations in Nanak Chand vs The State of Punjab(1) and contends that the conviction is an illegality which cannot be cured and claims that he must either be acquitted or, at the most, be retried, though be adds further that in the circumstances of this case the Court should not in the exercise of its discretion order a retrial.
As against this it is contended for the State that an omission to frame a separate charge in the alternative under section 302 simpliciter is a curable irregularity provided there is no prejudice to the accused.
Therefore, the only matter for determination is a question of fact whether there was prejudice in this case.
The charge was as follows: "That you, on or about the 12th day of February 1953, at Civil Lines, Jabalpur, went with your brother Ronnie Slaney to the house of Mrs. Waters (P.W. 20) at about 7 p.m. and in furtherance of the common intention did commit murder by intentionally or knowingly causing the death of her brother D. Smythe and thereby committed an offence punishable under section 302 of the Indian Penal Code read with section 34 of the Indian Penal Code. . .".
An exactly similar charge with the necessary change of name was framed against the co accused Ronnie Slaney.
It was contended on behalf of the State that this is really a charge under section 302 of the Indian (1) ; , 1150 Penal Code and that the references to common intention and to section 34 are mere surplusage.
There is much to be said for this but we will assume in this case (without so deciding) that the charge is ambiguous and that it means what the appellant says it means, namely a charge under section 302 read with section 34 and not one under section 302 simpliciter.
On that assumption the question for our decision is whether the omission to frame an alternative charge under section 302 of the Indian Penal Code is an illegality that cuts at the root of the conviction and makes not invalid or whether it is a curable irregularity in which all that we are concerned to see is whether there was prejudice.
What it narrows down to is this: Is the charge to be regarded as a ritualistic formula so sacred and fundamental that a total absence of one, or any departure in it from the strict and technical requirements of the Code, is so vital as to cut at the root of the trial and vitiate it from the start, or is it one of many regulations designed to ensure a fair and proper trial so that substantial, as opposed to purely technical, compliance with the spirit and requirements of the Code in this behalf is enough to cure departures from the strict letter of the law? Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities.
The object of the Code is to ensure that an accused person gets a full and fair trial along certain well established and well understood lines that accord with our notions of natural justice.
If he does, if he is tried by a competent court, if be is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of the law, mere mistakes in procedure, mere in consequential errors and omissions 1151 in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice.
That, broadly speaking, is the basic principle on which the Code is based.
Now here, as in all procedural laws, certain things are regarded as vital.
Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction.
Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice.
Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions.
The question here is, does the Code deal with the absence of a charge and irregularities in it, and if so, into which of the two categories does it place them? But before looking into the Code, we deem it desirable to refer to certain decisions of the Privy Council because much of the judicial thinking in this country has been moulded by their observations.
In our opinion, the general effect of those decisions can be summarised as follows.
First comes a class of case in which the Code deals with the matter expressly.
In that event, full effect must be given to the plain meaning of the words used.
"The language of that Code is conclusive, and must be construed according to ordinary principles, so as to give effect to the plain meaning of the language used.
No doubt, in the case of an ambiguity, that meaning must be preferred which is more in accord with justice and convenience, but in general the words used read in their context must prevail".
And at page 177 "But, even so, that can be no ground why the Court should misconstrue the section".
and at page 178 ,"Their Lordships decide the question on what they regard as the plain meaning of the language used".
(1) [1938] L.R. 65 I.A. 158, 175.
1152 Next comes a class of case for which there is no express provision in the Code, or where there is ambiguity.
In that event, the question is whether the trial has been conducted in substantial compliance with the Code or in a manner substantially different from that prescribed.
"When a trial is conducted in a manner different from that prescribed by the Code (as in N. A. Subramania Iyer 's case(1)), the trial is bad and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code".
Pulukuri Kotayya vs King Emperor(2).
The question in such cases is whether the departure is so violent as to strike at the root of the trial and make it no trial at all or is of a less vital character.
It is impossible to lay down any hard and fast rule but taken by and large the question usually narrows down to one of prejudice.
In any case, the courts must be guided by the plain provisions of the Code without straining at its language wherever there is an express provision.
For a time it was thought that all provisions of the Code about the mode of trial were so vital as to make any departure therefrom an illegality that could not be cured.
That was due to the language of the Judicial Committee in N.A. Subramania Iyer vs KingEmperor(1).
Later this was construed to mean that that only applies when there is an express prohibition and there is prejudice.
(2) [1917] L.R. 74 I.A. 66, 75.
1153 in most systems of jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of error, omission or irregularity".
This was examined and explained in Abdul Rahman vs King Emperor(1) as follows: "The procedure adopted was one which the Code positively prohibited, and it was possible that it might have worked actual injustice to the accused".
In our opinion, the key to the problem lies in the words underlined.
Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice.
Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth.
These go to the foundations of natural justice and would be struck down as illegal forthwith.
It hardly matters whether this is be cause prejudice is then patent or because it is so abhorrent to well establisbed notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once.
Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice.
In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possi bility of prejudice would swing the balance in favour of the accused.
This, in our opinion, has been the trend of the more recent decisions of the Privy Council and indeed of latter day criminal jurisprudence in England as well as in India.
The swing of the pendulum has been (1) [1926] L.R. 54 I.A. 96, 109. 1154 away from technicality, and a greater endeavour has been made to regard the substance rather than the shadow and to administer Justice fairly and impartially as it should be administered; fair to the accused, fair to the State and fair to the vast mass of the people for whose protection penal laws are made and administered.
The more recent attitude of the Judicial Committee is summed up by Sir John Beaumont in Pulukuri Kotayya vs King Emperor(1) where he says that "The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind" and by Viscount Sumner in Atta Mohammad vs King Emperor(2) "In the complete absence of any substantial injustice, in the complete absence of anything that outrages what is due to natural justice in criminal cases, their Lordships find it impossible to advise His Majesty to interfere".
We prefer this way of stating the law, for the distinction that was once sought to be drawn between an express prohibition and an equally express provision positively stated strikes us as unreal.
The real question is not whether a matter is expressed positively or is stated in negative terms but whether disregard of a particular provision amounts to substantial denial of a trial as contemplated by the Code and understood by the comprehensive expression "Natural justice".
It will be observed that disregard of ail express Prohibition was regarded as curable in Zahiruddin vs King Emperor(3), so the question whether a particular provision is stated in positive or in negative terms is not the true criterion.
(2) [1929] L.R. 57 I.A. 71, 76.
(3) [1947] L.R. 74 I.A. 80, 1155 controversy that has raged around the true meaning of N. A. Subramania Iyer vs King Emperor(1).
In any case, our opinion is that the real object of the Code is to leave these matters to the discretion and vigilance of the courts.
Slightly to alter the language of the Privy Council in Babulal Choukhani vs The KingEmperor(2) we would say "It must be hoped, and indeed assumed, that magistrates and judges will exercise their jurisdiction fairly and honestly.
Such is the implied condition of the exercise of judicial power.
If they do not, or if they go wrong in fact or in law, the accused has prima facie a right of recourse to the superior courts by way of appeal or revision; and the cases show bow vigilant and resolute the High Courts are in seeing that the accused is not prejudiced or embarrassed by unsubstantial departures from the Code and bow closely and jealously the Supreme Court guards the position of the accused.
These safeguards may well have appeared to the Legislature to be sufficient when they enacted the remedial provisions of the Code and have now left them substantially unaltered in the new Code recently introduced".
This, we feel, is the true intent and purpose of section 537(a) which covers every proceeding taken with jurisdiction in the general phrase "or other proceedings under this Code".
It is for the Court in all these cases to determine whether there has been prejudice to the accused; and in doing so to bear in mind that some violations are so obviously opposed to natural justice and the true intendment of the Code that on the face of them and without anything else they must be struck, down, while in other cases a closer examination of all the circumstances will be called for in order to discover whether the accused has been pre judiced.
We now proceed to examine the relevant sections of the Code.
Chapter XLV deals generally with irregular proceedings.
There are certain irregularities which do not vitiate the proceedings.
They are set out in section 529.
No question of prejudice arises, (1) [1901] L.R. 28 I.A. 257.
146 (2) [1938] L.R. 5 I.A. 158,177.
1156 in this class of case because the section states cate gorically that they shall not vitiate the proceedings.
Certain other irregularities are treated as vital and there the proceedings are void irrespective of prejudice.
These are set out in section 530.
A third class is dealt with in sections 531, 532, 533, 535, 536 (2) and 537.
There, broadly speaking, the question is whether the error has caused prejudice to the accused or, as some of the sections put it, has occasioned a failure of justice.
The examples we have given are illustrative and not exhaustive.
What we are seeking to demonstrate is that the Code has carefully classified certain kinds of error and expressly indicates bow they are to be dealt with.
In every such case the Court is bound to give effect to the express commands of the legislature: there is no scope for further speculation.
The only class of case in which the Courts are free to reach a decision is that for which no express provision is made.
The present case is concerned with the nature of the charge and we find that the Code expressly deals with this in several of its sections.
Our only task therefore is to interpret them and, having propounded their meaning, to give effect to whatever they say.
Now there is no doubt that a charge forms the foundation of a sessions trial and is a most important step in it.
The accused must know and understand what he is being tried for and must be told in clear and unambiguous terms: section 271 (1).
There can be no shirking that or slurring over it, and this must appear on the face of the record.
It cannot be established by evidence taken after the trial.
But there is, in our opinion, equally no doubt that the Code expressly deals with this and expressly provides that no error, omission or irregularity in the charge, or even total absence of a charge, shall vitiate a trial unless prejudice to the accused is shown.
This is repeatedly reiterated in a number of sections.
The whole question therefore is whether the "charge" must be formally reduced to writing and expressed as a ritualistic formula in order to save the trial from the ' fundamental defect.
of an incurable illegality or 1157 whether the information that is the substance of the matter can be conveyed in other ways.
The question is whether we are to grasp at the substance or play hide and seek among the shadows of procedure.
A perusal of them reveals the reasons why a charge is required.
It must set out the offence with which the accused is charged and if the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated "as to give the accused notice of the matter with which he is charged".
The charge must also contain such particulars of date, time, place and person "as are reasonably sufficient to give the accused notice of the matter with which he is charged"; and section 223 says "When.the nature of the case is such that the particulars mentioned in sections 221 and 222 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose".
It is clear to us that the object of the charge is not to introduce a provision that goes to the root of jurisdiction as, for example, the requirement of previous sanction under section 197, but to enable the accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet.
But there are other ways of conveying this information.
For example, in summons cases no formal charge is required: all that is necessary is to tell the accused the substance of the accusation made against him (section 242).
The whole question is whether, in warrant cases and in sessions trials, the necessary information must be conveyed in one way and one way only, namely in a formal charge in order that the entire trial may not be ipso facto vitiated because of an incurable illegality, or whether that can be done in other and less formal ways, provided always that it is in fact conveyed in a clear and unambiguous man ner and in circumstances that the court will regard '1158 as fair and in substantial, as opposed to purely technical, compliance with the requirements of the Code.
The law could have provided one way as easily as another, but what it has chosen to do is set out in the following sections.
The marginal note to section 225 is headed "Effect of errors." and the section states that "No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice".
Therefore, when there is a charge and there is either error or omission in it or both, and whatever its nature, it is not to be regarded as material unless two conditions are fulfilled both of which are matters of fact: (1) the accused has in fact been misled by it and (2) it has occasioned a failure of justice.
That, in our opinion, is reasonably plain language.
Next, sections 226 and 227 show that errors in a charge, and even the total absence of a charge, do not vitiate a trial from the start so as to render it no trial at all as would the absence of sanction under section 197.
This is evident because these errors and omissions can be remedied at any time during the course of the trial in the sessions Court (section 226) or even at the very end of the trial (section 227), and when this is done the trial need not proceed de novo but can go on from the stage at which the alteration was made provided neither side is prejudiced (section 228).
The proceedings up to the stage of the alteration, which, as ,we have seen, can be at the very end of the trial, are not vitiated unless there is prejudice; they are good despite these imperfections.
That is impossible when the error is so vital as to cut at the root of the trial.
It follows that errors in the charge, and even a total absence of a charge, are not placed in the non curable class.
1159 Next, we have a case in which the error is not observed and corrected during the trial and the accused is convicted.
It is to be observed that this is so whether there was a total absence of a charge or merely an error in it.
It is evident that a conviction cannot stand if the defect cuts at the root of the trial, therefore defects even of this nature are not regarded as fatal.
From there we proceed to section 535.
The marginal note is "Effect of omission to prepare charge", and the section says "No finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed, unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby".
Here again the language is clear and wide and emphatic.
The section summarises what was already indicated in sections 226, 227, 228 and 232.
Next, there is section 537: "Subject to etc no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVLI or on appeal or revision on account (a) of any error, omission or irregularity in the . . charge. or other proceedings before or during trial. . . . . . . . . unless such error, omission, irregularity has in fact occasioned a failure of justice".
The Explanation is also important: "In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings".
This repeats what was set out in greater detail in section 225 and is all the more impressive because 1160 even when a death sentence is under review in confirmation proceedings under Chapter XXVII the Court is expressly directed not to regard any error, omission or irregularity in the charge as fatal unless it has in fact occasioned a failure of justice.
Reading these provisions as a whole, there is, in our opinion, no room left for doubt about what was intended.
It was argued on behalf of the appellant that these sections must be read along with sections 236, 237 and 238.
Counsel conceded that there are occasions when an accused person can be convicted in the absence of a charge but he said that they are expressly set out in sections 237 and 238 and he contended that no further departure is permissible.
He put his argument as follows.
He said that sections 237 and 238 deal with cases in which there is a charge to start with but none to support a conviction for an offence which the Court feels is made out by the evidence.
When section 535 is read along with these two sections it is seen that it cannot apply to a case in which there is no charge at all, nor can it apply to any case that is not covered by these two sections.
It is limited to cases in which sections 237 and 238 permit a conviction without a charge.
In answer to this the following argument was put to counsel and be was asked to meet it.
The point was put this way.
Section 535 cures convictions that would be invalid but for its provisions.
This, it was said, follows from the words "shall be deemed invalid".
It was suggested that these words show that a conviction without a charge is in truth and in fact invalid but that it can be cured in certain cases, and when that is done, that which in truth is invalid is deemed not to be invalid because of this section.
But as sections 237 and 238 expressly permit convictions in certain cases without a charge for those offences, provided there is a charge in the case to start with, the convictions so permitted cannot be invalid or even irregular because it would be wrong to say that that which the Code expressly allows is, or can be, 1161 irregular.
Therefore, section 535 cannot apply to cases covered by sections 237 and 238.
Counsel replied that even if that is so, section 535 is still governed by section 233 and so cannot apply to cases in which there is no charge at all.
We do not agree with either view.
In our opinion, the cases contemplated by section 237 are just as much a departure from section 233 as are those envisaged in sections 225, 226, 227, 228, 535 and 537 Sections 236, 237 and 238 deal with joinder of charges and so does section 233.
The first condition is that there shall be a separate charge for each offence and the second is that each charge must be tried separately except in the cases mentioned in sections 234, 235 and 236.
It is to be observed that the exceptions are confined to the rule about joinder of charges and that no exception is made to that part of the rule that requires separate charges for each offence.
It will be seen that though sections 234, 235 and 236 are expressly mentioned, section 237 is not referred to, nor is section 238.
Therefore, so far as section 233 is concerned, there can be no doubt that it requires a separate charge for each offence and does not envisage a situation in which there is either no charge at all or where, there being a charge for some other offence of which the accused is acquitted, he can be convicted instead of something else for which be was not charged.
What then is the position if there is some departure from the normal procedure? In our opinion, sections 225, 226) 227, 228, 535 and 537 furnish the answer and they apply with equal force to every kind of departure from that part of section 233 that requires a separate charge for each offence.
Section 237 is only a corollary to section 236 and is there to emphasise that even when a number of charges could be joined together in the cases set out in section 236 and one or more are not put in, oven then, there can be convictions in respect of those offences despite the 1162 absence of a charge or charges.
But all these sections are governed by the overriding rule about prejudice mentioned in one form or another in sections 225, 226, 227, 228, 535 and 537.
We can envisage cases where there would be grave prejudice under that section just as clearly as we can see cases where there would be none under the others.
The sort of problem that we are now examining can only arise when an express provision of the Code is violated and then the root of the matter is not whether there is violation of an express provision, for the problem postulates that there must be, nor is it whether the provision is expressed in positive or in negative terms, but what are the consequences of such disregard.
Does it result in an illegality that strikes at the root of the trial and cannot be cured or is it an irregularity that is curable? We have used the terms "illegality" and "irregularity" because they have acquired a technical significance and are convenient to demarcate a distinction between two classes of case.
They were first used by the Privy Council in N. A. Subramania Iyer vs KingEmperor(1) and repeated in Babulal Choukhani vs King Emperor(2 ) and in Pulukuri Kotayya vs King Emperor(3), but it is to be observed that the Code does not use the term "illegality".
It refers to both classes as "irregularities"; some vitiate the proceedings (section 530) and others do not (section 529).
Proceedings that come under the former head are "void".
Section 535 uses the words "shall be deemed invalid" which indicate that a total omission to frame a charge would render the conviction invalid but for section 535 which serves to validate it when that sort of "irregularity" has not occasioned a "failure of justice".
Section 537 does not use any of these expressions but merely says that no conviction or (1) [1901] L.R. 28 I.A. 257.
(2) [1938] L.R. 65 I.A. 158, 174.
(3) [1947] L.R. 74 I.A. 65,75.
1163 sentence "shall be reversed or altered" unless there has in fact been a failure of justice.
We do not attach any special significance to these terms.
They are convenient expressions to convey a thought and that is all.
The essence of the matter does not lie there.
It is embedded in broader considerations of justice that cannot be reduced to a set formula of words or rules.
It is a feeling, a way of thinking and of living that has been crystallized into judicial thought and is summed up in the admittedly vague and indefinite expression "natural justice": something that is incapable of being reduced to a set formula of words and yet which is easily recognisable by those steeped in judicial thought and tradition.
In the end, it all narrows down to this: some things are "illegal", that is to say, not curable, because the Code expressly makes them so; others are struck down by the good sense of judges who, whatever expressions they may use, do so because those things occasion prejudice and offend their sense of fair play and justice.
When so struck down, the conviction is "invalid"; when not, it is good whatever the "irregu larity".
It matters little whether this is called an "illegality", an "irregularity that cannot be cured" or an "invalidity", so long as the terms are used in a clearly defined sense.
Turning next to the second branch of the argument about section 535.
We cannot agree that because sections 237 and 238 expressly permit convictions without a charge in the cases contemplated by them, therefore they lift them out of the Chapter on Irregularities, because, if they do, then so does section 232 (1) in the cases with which it deals.
Between them, these sections cover every kind of case in which there is an error, omission or irregularity in a charge and an omission to frame a charge, so, if sections 232(1) and 237 and 238 save departures from section 233 from being irregularities, then there is nothing left for sections 535 and 537 to operate on.
In our opinion, the truth is that the Code deals with the same subject matter under different heads, so there is some overlapping.
147 1164 Sections 222 to 224 deal with the form of a charge and explain what a charge should contain.
Section, 225 deals with the effect of errors relating to a charge.
Sections 233 to 240 deal with the joinder of charges.
Sections 535 and 537 are in the Chapter that deals with irregularities generally and these two sections deal specifically with the charge and make it clear that an omission to frame a charge as well as irregularities, errors and omission in a charge are all irregularities that do not vitiate or invalidate a conviction unless there is prejudice.
But, apart from that, if we examine the learned counsel 's contention more closely the fallacy in his argument becomes clear.
Sections 237 and 238 deal with cases in which there is a charge to start with and then they go on to say that in certain cases the trial can proceed beyond the matter actually charged and a conviction for an offence disclosed in the evidence in that type of case will be good despite the absence of a charge in respect of it.
But what are those cases? Only those in which the additional charge or charges could have been framed from the start; and that is controlled by sections 234, 235 and 239 which set out the rules about joinder of charges and persons.
It is evident that if charges A and B cannot be tried together because of the prohibition in section 233 read with sections 234, 235 and 239, then no conviction could be sustained on either A or B, and if that is the case when specific charges are drawn up it is all the more so when though there is a charge in respect of A there is none in respect of B, for clearly you cannot do indirectly that which you are prohibited from doing directly.
In our opinion sections 233 to 240 deal with joinder of charges and they must be read together and not in isolation.
They all deal with the same subject matter and set out different aspects of it.
When they are read as a whole, it becomes clear that sections 237 and 238 cover every type of case in which a conviction can be sustained when there is no charge for that offence provided there is a charge to start with.
1165 They do not deal with a case in which there is no charge at all, and anything travelling beyond that when there is a charge would be hit by sections 233,234, 235 and 239 read as a whole, for the reasons we have just given.
But if that is so, and if section 535 is excluded where sections 237 and 238 apply, then what is there left for it to operate on except cases in which there is a total omission to frame a charge? We do not think these sections should be regarded disjunctively.
In our opinion, they between them (including sections 535 and 537) cover every possible case that relates to the charge and they place all failures to observe the rules about the charge in the category of curable irregularities.
Chapter XIX deals comprehensively with charges and sections 535 and 537 cover every case in which there is a departure from the rules set out in that Chapter.
Such departures range from errors, omissions and irregularities ' in charges that are framed, down to charges that might have been framed and were not and include a total omission to frame a charge at all at any stage of the trial.
In all these cases the only question is about prejudice.
We say this because the Code repeatedly says so in express and emphatic terms and because that is the foundation on which rules of procedure are based.
We say it because that accords with logic and principle and reason and because it touches the deep verities on which the structure of justice is erected and maintained.
That would necessitate reading into the section words that are not there.
We see no reason for straining at the mean ing of these plain and emphatic provisions unless ritual and form are to be regarded as of the essence in criminal trials.
We are unable to find any magic or charm in the ritual of a charge.
It is the substance of these provisions that count and not their outward 1166 form.
To hold otherwise is only to provide avenues of escape for the guilty and afford no protection to the innocent.
We agree that a man must know what offence he is being tried for and that he must be told in clear and unambiguous terms and that it must all be "explained to him " so that he really understands (section 271(1) in sessions trials, section 255(1) in warrant cases) but to say that a technical jargon of words whose significance no man not trained to the law can grasp or follow affords him greater protection or assistance than the informing and the explain ing that are the substance of the matter, is to base on fanciful theory wholly divorced from practical reality; and the same applies to the vast bulk of jurors who attend our courts.
They are none the wiser because of a formal charge except in a vague and general way that is of no practical account.
The essence of the matter is not a technical formula of words but the reality.
Was he told? Was it explained to him? Did he understand? Was it done in a fair way? We attach equal importance to other sections of the Code that are just as emphatic as section 233, namely, sections 342 and 364; and yet no one doubts that irregularities there are curable.
It is the spirit of section 271 that must be observed in a sessions trial rather than its letter and the essence of that lies in the words "and explained to him".
We do not mean to imply that laxness of procedure should be encouraged in the matter of the charge any more than this Court encourages it in matters relating to section 342; nor do we mean to suggest that a trial can be regarded as good when the accused does not know what be is being tried for and is not told and the matter is not explained to him as section 271 requires.
Of course, the rules should and ought to be punctually observed.
But judges and magistrates are fallible and make mistakes and the question is what is to be done in the exceptional class of case in which there has been a disregard of some express provision.
As an illustration, we give a case in which a Sessions Judge in a sessions trial having no charge 1167 before him from the committal court omits to frame one himself but instead, carefully and painstakingly, explains the particulars and the substance of the offence as in section 242 and complies with the spirit and object of section 271 but omits to observe its technical form.
Then, when the witnesses are examined, the accused shows by his cross examination that he knows just what he is being tried for.
He is examined fully and fairly under section 342 and his answers show that he is under no delusion.
He calls witnesses in defence to meet the very point or points the prosecution seek to make out against him.
He puts in a written statement and is defended by an able lawyer who raises no objection from start to finish.
Will a technical defect in a case like that vitiate the trial? If the Code says Yes, then there is an end of the matter.
We have put a case in which there neither is, nor can be, prejudice.
Surely it would be a travesty of justice to brand a conviction in a case like that as illegal.
And yet that must be done if these words that are otherwise plain are construed in a strained and unnatural manner.
On the other hand, there is nothing in the view we take to imperil or harass an accused however innocent he may be.
How does the technical formula of a charge afford greater protection than the "explaining" under section 271 (1) and the examination under section 342? And yet, on the argument before us, an omission to observe these other rules that are of the substance is curable when there is no prejudice but not the sacred ritual of the framing of the charge; once that is there, the accused cannot be heard to say that be did not understand however much that may be the fact.
Surely, this cannot be right.
Now, as we have said, sections 225, 232, 535 and 537(a) between them, cover every conceivable typo, of error and irregularity referable to a charge that 1168 can possibly arise, ranging from cases in which there is a conviction with no charge at all from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it.
The Code is emphatic that whatever the irregularity it is not to be regarded as fatal unless there is prejudice.
It is the substance that we must seek.
Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence.
Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities.
Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction.
Every reasonable presumption must be made infavour of an accused person; he must be given the benefit of every reasonable doubt.
The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt.
But when all is said and done, what we are concerned to see is whether the accused bad a fair trial, whether he knew what be was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.
If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one.
If it was not, and particularly where the accused is defended by counsel [Atta Mohammad vs King Emperor(1)], it may in a given case be proper to conclude that the accused was satisfied and knew just what he was being tried for and knew what was being alleged against him and wanted no further particulars, provided it is always borne in mind that "no serious defect in the mode of conducting a criminal trial can be justified or cured by the consent of the advocate of the accused" [Abdul Rahman vs King Emperor(2)].
But these are matters of fact which will be special to each different case and no conclusion on these questions of fact in any one case can ever be regarded as a precedent or a guide for a conclusion of fact in another, because the facts can never be alike in any two cases however alike they may seem.
There is no such thing as a judicial precedent on facts though counsel, and even judges, are sometimes prone to argue and to act as if there were.
Endeavour was made in the argument to draw a distinction between cases falling under section 34 of the Indian Penal Code and those under section 149 of the Indian Penal Code.
This is not a case under section 149 of the Indian Penal Code so the question does not really arise but it is necessary to advert to the argument because, on the view we take of sections 225, 535 and 537, it is immaterial what the offence is and whether there is a charge at all.
The only question is whether the irregularity occasioned prejudice.
We now turn to an examination of the cases of this Court that are said to give rise to a conflict of view.
In our opinion, there is in reality no conflict and (1) [1929] L.R. 57 I.A. 71, 74.
(2) [1926] L.R. 54 I.A. 96,104, 110.
1170 though the language used in one case might suggest that, a close consideration of its reasons will disclose that there was in fact no difference of view in the type of case where there is a charge to start with.
None of the cases deals with the position where there is no charge at all.
The following cases afford no difficulty because they directly accord with the view we have set out at length above.
In Lachman Singh vs The State(1) it was held that when there is a charge under section 302 of the Indian Penal Code read with section 149 and the charge under section 149 disappears because of the acquittal of some of the accused, a conviction under section 302 of the Indian Penal Code read with section 34 is good even though there is no separate charge under section 302 read with section 34, provided the accused could have been so charged on the facts of the case.
The decision in Karnail Singh vs The State of Punjab(2) is to the same effect and the question about prejudice was also considered.
Pandurang, Tukia and Bhillia vs State of Hyderabad(3) also presents no difficulty because though the point was taken in that case it was expressly left open at page 1093.
From there we come to Suraj Pal vs The, State of U.P. (4).
That was a case in which a number of accused were charged under sections 307/149 and sections 302/149 of the Indian Penal Code.
It was found that there was no common object to kill, so all the accused were acquitted under section 149.
But the evidence disclosed that the appellant had himself made an attempt on the life of one man and had himself shot another dead.
Accordingly the High Court convicted him under sections 307 and 302 of the Indian Penal Code respectively, though there was no separate charge under either of those sections.
Those convictions were challenged here.
The learned Judges then (1)[1952] S.C.R. 839, 848.
(2)[1954] S.C.R. 904,911 (3) ; (4)[1955] I.S.C.R, 1332 1171 proceeded to determine the question of prejudice on the facts of that case.
The conclusion reached on the facts was that prejudice was disclosed, so an acquittal was ordered.
It was argued before us that the ground of the decision there was that the absence of charges under sections 307 and 302 simpliciter was in itself conclusive to establish prejudice and that therefore one need go no further.
It is enough to say that that was not the decision and though that was one of the matters taken into consideration, the conclusion was based on a careful and lengthy investigation of all the facts in the case including the way in which it was conducted, the evidence of several witnesses, the medical evidence, the first information report and certain documents including two filed by the accused.
Next comes Nanak Chand vs The, State of Punjab(1).
That was also a case in which the charge was under section 302/149 of the Indian Penal Code with the conviction under section 302 simpliciter without any separate charge under that section.
The Sessions Judge had convicted under section 302/34 of the Indian Penal Code holding that the charge of rioting was not proved.
The High Court held that no common intention was proved either but as the evidence indicated that the appellant had done the actual killing he was convicted under section 302.
It was found that the appellant there was in fact misled in his defence and one of the factors taken into consideration, as indeed must always be the case, was that when he was told that he was to be tried under section 302 read with section 149 of the Indian Penal Code that indicated to him that he was not being tried for a murder committed by him personally but that he was only being (1) [1955] I S.C.R. 1201.
148 1172 made vicariously liable for an act that another had done in prosecution of the common object of an unlawful assembly of which he was a member.
But that was only one of the matters considered and it does not follow that every accused will be so misled.
It all depends on the circumstances.
The entire evidence and facts on which the learned Judges founded are not set out in the judgment but there is enough to indicate that had the appellant 's attention been drawn to his own part in the actual killing he would probably have cross examined the doctor with more care and there was enough in the medical evidence to show that had that been done the appellant might well have been exonerated.
As judges of fact they were entitled, and indeed bound, to give the accused the benefit of every reasonable doubt and so were justified in reaching their conclusion on the facts of that case.
Illustrations (c) and (e) to section 225 of the Criminal Procedure Code show that what the accused did or omitted to do in defence are relevant on the question of prejudice.
That, however, was, and remains, a pure conclusion of fact resting on the evidence and circumstances of that particular case.
The decision was special to the facts of that case and no decision on facts can ever be used as a guide for a conclusion on facts in another case.
Now having reached the conclusion that there was prejudice, the learned Judges were of the opinion that the irregularity, if it can be so called when prejudice is disclosed was incurable and from that they concluded that an incurable irregularity is nothing but an illegality: a perfectly possible and logical conclusion when the words "irregularity" and "illegality" are not defined.
and it can well be argued from this that this indicates 1173 that an omission to follow the provisions of the Code does in truth and in fact render the decision invalid but because of section 535 that which is in truth and in fact invalid must be deemed to be valid unless prejudice is disclosed.
As there was prejudice in that case, the decision was invalid and being invalid it was illegal.
We do not say that that is necessarily so but it is a reasonably plausible conclusion and was what the learned Judges had in mind.
It is to be.
observed that section 535 of the Code is mandatory in its terms, just as mandatory as section 233.
If it be accepted that an absence of a charge would, but for its provisions, render a conviction invalid, this section cures such an invalidity when there is in fact, not in theory but in fact, no failure of justice.
The section is just as mandatory as section 233 and we can see no justification for giving it less weight than section 237.
If section 237 validates a departure from section 233 and saves it from the stigma of an irregularity, then so does section 535, for it says very expressly that no conviction shall be deemed invalid merely on the ground that no charge was framed unless that in fact occasioned a failure of justice; and if section 535 is held not to apply to cases covered by sections 237 and 238, then it must apply to cases that lie outside the scope of those ' sections and the only kind of case left is a case in which there is a total absence of a charge, for any other type of case would be excluded because of misjoinder.
If section 233 is mandatory, that part of it which prohibits misjoinder except in the cases mentioned in sections 234, 235) 236 and 239 is just as mandatory as the portion that requires a separate charge for each offence.
It is unfortunate that we have no definition of the terms "illegality", "irregularity" and "in .
validity" because they can be used in differing senses, but however that may be, the decision we are now examining and the remarks made in that case must be read in the light of this background.
We agree that some of the expressions used in the judgment appear to travel wider than this but in order to dispel misconception we would now hold that the 1174 true view is the one we have propounded at length in the, present judgment.
We now turn to the question of fact: is there material in this case to justify a finding of prejudice? that will turn largely on the differences between section 302 of the Indian Penal Code and section 302 read with section 34 of the Indian Penal Code and on the measure of criminal liability to which the appellant would be exposed in those two cases; and here again, the matter must be viewed broadly and not in any technical or pettifogging way.
Now what is an accused person entitled to know from the charge and in what way does the charge in this case fall short of that? All he is entitled to get from the charge is (1) the offence with which he is charged, section 221(1),Criminal Procedure Code, (2) the law and, section of the law against which the offence is said to have been committed, section 221(4), (3) particulars of the time, section 222(1) and (4) of the place, section 222(1), and (5) of the person against whom the offence is said to have been committed, section 222(1), and (6) when the nature of the case is such that those particulars do not give him sufficient notice of the matter with which he is charged, such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose, section 223.
He is not entitled to any further information in the charge: see Illustration (e) to section 223 of the Code: "A is accused of the murder of B at a given time and place.
The charge need not state the manner in which A murdered B".
It is clear from this that when the case is one of murder, the accused is not entitled to be told in the charge how it was committed, whether with a pistol or a lathi or a sword.
He is not entitled to know from the charge simpliciter any further circumstance.
How then is he expected to defend himself? He has the police challan, he has the evidence recorded in the 1175 Committal Court, he hears the prosecution witnesses and he is examined under section 342 of the Code.
It is these proceedings that furnish him with all the necessary, and indeed vital, information, and it is his duty to look into them and defend himself.
Now when several persons join in the commission of a crime and share a common intention, it means that each has the requisite intention in himself; the fact that others share it does not absolve any one of them individually, and when the crime is actually committed in pursuance of the common intention and the accused is present at its commission, the crime becomes the offence actually committed because of section 114 of the Indian Penal Code.
Section 114 does not create the offence nor does section 34.
These sections enunciate a principle of criminal liability.
Therefore, in such cases all that the charge need set out is the offence of murder punishable under section 302 of the Indian Penal Code committed by the accused with another and the accused is left to gather the details of the occurrence as alleged by the prosecution from other sources.
The fact that be is told that he is charged with murder committed by himself with another imports that every legal condition required by law to constitute the offence of murder committed in this way was fulfilled: section 221(5) of the Criminal Procedure Code.
Now what are those legal conditions? What is the effect of charging two persons with a murder committed in pursuance of a common intention? It means that the accused is unmistakably told that be participated in the crime; exactly how is no more a matter for the charge than it is to set out the circumstances in which the murder was committed.
It also means that he is informed that it is immaterial who struck the fatal blow.
The charges here against the appel 1176 lant and his brother Ronnie are identical. 'As there was only one fatal blow and as only one person could have inflicted it and as both are charged in this way, it can only mean that each is put on his guard and made to realise that the prosecution allege that one of the two was responsible for that and which must be discovered from the evidence and not from the charge, just as surely as it must when the question turns on who possessed or used a pistol and who a sword.
It is true that if it cannot be ascertained who struck the fatal blow, then the accused cannot be convicted unless the common intention is proved and in that type of case an acquittal of the co accused may be fatal to the prosecution.
But the converse does not hold good, and if the part that the accused played can be clearly brought home to him and if it is sufficient to convict him of murder simpliciter he cannot escape liability because of the charge unless he can show prejudice.
Put at its highest, all that the appellant can urge is that a charge in the alternative ought to have been framed, which in itself imports that it could have been so framed.
That is what happened here.
They were not charged with that formally, but they were tried on evidence which brings the case under section 237"(1).
The variation between murder and concealing evidence after the crime is no more than the variation between killing a man jointly with another, sharing his intention, or allowing the other to do the actual killing with the same common intention.
Now what do the proceedings in this case show? The police charge sheet states that the appellant hit the deceased with a hockey stick while his brother (1) Lah. 226, 231.
(2) ; , 848.
1177 only threw stones.
From there we go to his examination under section 342 of the Criminal Procedure Code in the Committal Court.
He is specifically told that the only eye witness in the case accuses him and not his brother of having hit the deceased over the head with a hockey stick.
No one could misunderstand that.
In the Sessions Court we find the same evidence repeated.
No witness suggests that anyone else hit the deceased on the head.
There was no pos sibility of misunderstanding or mistake.
The fact that the appellant did not attempt to confront any of the witnesses with their statements before either the Committing Magistrate or the police on this point shows that the witnesses told a consistent story from the start.
Next, the appellant was examined under section 342 in the Sessions Court and was asked the same questions and was confronted in his examination with the same eye witness.
He was told clearly and unambiguously that the evidence was that he hit the deceased over the head.
Now what was his defence? A curious procedure was adopted, a procedure that has been condemned by the Nagpur High Court in other cases and which we regret to see still persists.
Instead of the accused speaking for himself he made a statement through his advocate.
However, the defence was this: (1) an alibi: "I wasn 't there".
(2) It was dark and the deceased rushed at the appellant (who is now said to have been there despite the alibi), fell down the stairs and broke his head; (3) The deceased was the aggressor and the appellant struck him in self defence.
There is no suggestion here that the other accused hit the deceased or that anyone other than the appellant did.
The appellant places it beyond doubt that he knew that the case against him was that he is said to have struck the fatal blow.
Next, what was the cross examination of the only eye witness? There was no suggestion that she was mistaken in her identity, whereas she was crossexamined about this very matter of self defence and questions were put to show that the deceased 1178 and not his brother had threatened the appellant with his fist.
In the High Court the plea of alibi was dropped and the only argument advanced was self defence.
There was no hint of prejudice even in the grounds of appeal.
There was no pretence in the arguments that the appellant did not know he was being accused of having hit the deceased.
On the contrary, there was a clear admission in the High Court that he did hit the man but that he acted in self defence.
As the appellant knew that the case against him was that he is the one who is said to have struck the fatal blow, and as he was told in the charge that the offence he is said to have committed was that of murder and was informed of the date and place and person, we find it impossible to infer prejudice.
As the Privy Council said in Atta Mohammad vs Emperor(1) I "He appeared by an advocate on the appeal and had been legally defended at the trial, and it is as clear as possible that, with full knowledge of the course which the trial had taken, neither the appellant himself nor those who represented him bad any sense whatever of the injustice that is now urged or any idea of his having been deprived of the opportunity of knowing the charge on which he was tried or of raising defences appropriate to that charge".
We would hold that there was no prejudice and that the conviction is not invalid because of the nature of the charge.
We now come to the merits, and the question is whether this is a case under section 302 or under the second part of section 304 of the Indian Penal Code.
The injury was inflicted with a hockey stick.
The head was fractured but the deceased lived for ten days.
Therefore, the doctor in whose care the patient was (1) [1929] L.R. 57 I.A. 71, 74. 1179 till he died places the injury no higher than "likely" to cause death.
The learned Sessions Judge exonerated the appellant of any intention to kill and the learned High Court Judges say that they agree with his findings.
If there was no intention to kill, then it can be murder only if (1) the accused knew that the injury inflicted would be likely to cause death or (2) that it would be sufficient in the ordinary course of nature to cause death or (3) that the accused knew that the act must in all probability cause death.
If the case cannot be placed as high as that and the act is only likely to cause death and there is no special knowledge, the offence comes under the second part of section 304 of the Indian Penal Code.
The doctor thought that it was only likely to cause death.
All blows on the head do not necessarily cause death, and as the deceased lived for ten days, we are unable to deduce from the nature of the injury and from the mere fact of death that the appellant had, or should have had, the special knowledge that section 300 of the Indian Penal Code requires.
Admittedly, there was no premeditation and there was a sudden fight, so we are unable to ascribe the necessary knowledge to the appellant; nor was the injury sufficient in the ordinary course of nature to cause death.
So the offence falls under the second part of section 304 of the Indian Penal Code.
On the question of sentence.
There was no enmity according to the finding of the learned Sessions Judge.
The appellant did not go there armed with a stick.
He was in love with the deceased 's sister who reciprocated his affection but could not marry him be cause her husband had turned her out in England ,and she had no divorce.
The deceased, who was the girl 's brother, resented this.
The appellant went to the house and asked the sister to come down.
The 1180 brother came instead and there was a quarrel.
The appellant slapped the deceased across the face.
The deceased, who was a big and strong man, shook his fist in the appellant 's face and the appellant snatched a hockey stick from his younger brother Ronnie and hit the deceased one blow over the bead and two blows on the hips.
In the circumstances, we think five years ' rigorous imprisonment will suffice.
This appeal comes before us on a reference owing to a conflict between two decisions of this Court, Nanak Chand vs The State of Punjab(1) and Suraj Pal vs The State of U. P. (2).
Where there is a charge against an accused under section 302, read with section 149, if section 149 of the Indian Penal Code is inapplicable to the facts, can the accused be convicted under section 302 without a separate charge?
In the first case, it was held that the omission to have a specific charge under section 302 amounted to an illegality.
Section 149 creates a specific offence and without applying its provisions a member of an unlawful assembly could not be made liable for the offence committed not by him but by another member of that assembly.
Therefore the case is not similar to the one where there is a charge under section 302, read with section 34 of the Indian Penal Code.
When section 149 is ruled out, the liability for murder ceases to be constructive; it becomes direct and there must be a separate charge therefor under section 302 of the Indian Penal Code.
This was the line of reasoning in Nanak Chand 's case.
In Suraj Pal 's case, the same line is taken but the absence of a specific charge (1) ; (2) ; 1181 is treated as a serious lacuna merely; and not regarded as an illegality.
This conflict does not arise in the case before us where the offence charged against two brothers, William and Ronnie for the murder of Donald was under section 302, read with section 34 of the Indian Penal Code.
Ronnie was acquitted.
But William was found guilty and sentenced to transportation for life.
As pointed out by Lord Sumner in his classic judgment in Barendra Kumar Ghosh vs The King Emperor(1), there is much difference in the scope and applicability of sections 34 and 149, though they have some resemblance and are to some extent overlapping.
The two sections are again compared and contrasted in Karnail Singh and another vs The State of Punjab(2).
Section 34 does not by itself create any offence, whereas it has been held that section 149 does.
In a charge under section 34, there is active participation in the commission of the criminal act; under section 149, the liability arises by reason of 'the membership of the unlawful assembly with a common object, and there may be no active participation at all in the perpetration or commission of the crime.
The overlapping arises in those cases where two or more persons commit a murder in furtherance of the common intention, but it is not possible to say which of them was responsible for the fatal injury, or whether any one injury by itself was responsible for the death.
There may also be a case where it is known that out of the assailants one in particular was responsible for the fatal injury and the others are sought to be made liable for the result owing to the common intention involved.
It is, however, necessary having regard to the (1) [1924] L.R. 52 I.A. 40.
(2) 1182 lengthy arguments addressed to us, to consider the main question arising on the reference.
Though the two cases which gave rise to this reference were cases relating to section 149 of the Indian Penal Code and not to section 34 of the Indian Penal Code, as the Present case is, the order of reference was occasioned by the fact that in Nanak Chand 's case it was stated specifically that the parallel case under section 34 also stood on the same footing.
In our attempt to resolve the conflict, we covered a wide area of sections and decisions.
A detailed discussion of all the decisions cited at the Bar is not of much use as it is not possible to gather from a study of those cases anything very decisive by way of any guiding principle.
But a few of them, more important than the rest, must be noticed.
The Criminal Procedure Code does not use the word "illegality".
Even defects or violations that vitiate the proceedings and render them void are spoken of only as irregularities in section 530.
The word illegality was used almost for the first time in the judgment of the Privy Council, L.R. 28 Indian Appeals 257 (familiarly known as Subramania Aiyar 's case), where they speak of a contravention of section 234 of the Code, resulting in a misjoinder of charges, as an illegality.
The idea that it was a mere irregularity was repelled in these words: "Their Lordships are unable to regard the disobedience to an express provision as to a mode of trial as a mere irregularity.
Such a phrase as irregularity is not appropriate to the illegality of trying an accused person for many different offences at the same time, and those offences being spread over a longer period than by law could have been joined together in one indictment.
The illustration of the section itself sufficiently shows what was meant".
Again, they say: ". . it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes 1183 within the description of error, omission, or irregu larity".
Subsequently, however, there have been systematic attempts to explain away the said decision and restrict its scope to narrow limits.
This was possibly because it was realised even by the Judicial Committee itself that the view taken by them to the effect that a violation of the mandatory provisions of the Code would be an illegality was rather an extreme one.
It may be pointed out that even in that case the question of prejudice was not entirely absent from their Lordships ' minds.
Both sides referred to it in the course of the arguments, and the Lord Chancellor alludes to the prejudice inherent in the trial on a multitude of charges.
The exact effect of this inclusion may require consideration in an appropriate case.
Before dealing with the other relevant sections of the Code, let us examine some of the later decisions of the Privy Council which seem to indicate a swing of the pendulum to the other side.
In Abdul Rahman vs The King Emperor(1), there was a violation of section 360 of the Code which provides that the deposition of each witness shall be read over to him in the presence of the accused or his pleader.
The High Court held that this was a mere irregularity, and confirmed the conviction as no failure of justice had resulted.
It was contended on appeal before the Privy Council that the section was obligatory, and that non compliance with such a mandatory provision was illegal, on the principle laid down in Subramania Aiyar 's case(2).
But their Lordships rejected this contention pointing out that in the earlier case the procedure adopted was one which the Code positively prohibited, and it was possible that it might have worked actual injustice to the accused; and they confirmed the conviction.
The question was again raised in Babulal Choukhani vs The King Emperor(3) (1) [1926] L.R. 54 I.A. 96.
(2) [1901] L.R. 28 I.A. 257.
(3) [1938] 65 I.A. 158.
1184 as to what would be an illegality as distinguished from an irregularity.
Lord Wright who delivered the judgment of the Board assumed that an infringement of section 239(b) of the Code would be an illegality, and proceeded to state that the question did not, however, arise, and it was hence unnecessary to discuss the precise scope of what was decided in Subramania Aiyar 's case(1).
The matter cropped up once again in Pulukuri Kotayya and others vs KingEmperor (2) where there was a breach of the statutory requirement found in section 162 of the Code, inasmuch as the accused were not supplied with copies of the statements first recorded by a police officer for cross examining the prosecution witnesses.
The defect was recognized to be a matter of gravity, and if the statements bad been completely destroyed, or if there had been a total refusal to supply copies to the accused, the convictions were liable to be quashed.
But in the case before them, as the statements were made available, though too late to be effective, and the Circle Inspector 's notes of the examination of witnesses were put into the hands of the accused, it was taken to be an irregularity merely.
Referring to the contention that the breach of a direct and important provision of the Code cannot be cured but must lead to the quashing of the conviction, Sir John Beaumont observed: ". .
In their Lordships ' opinion, this argument is based on too narrow a view of the operation of section 537.
When a trial is conducted in a manner different from that prescribed by the Code (as in N. A. Subramania Iyer 's case(1)), the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under section 537, and nonetheless so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehen sive provisions of the Code.
The distinction drawn in many of the cases in India between an illegality and (1) [1901] L. R. 28 I.A. 257.
(2) [1947] L.R. 74 I.A. 65. 1185 ail irregularity is one of degree rather than of kind.
This view finds support in the decision of their Lordships ' Board in Abdul Rahman vs The King Emperor (1) where failure to comply with section 360 of the Code of Criminal Procedure was held to be cured by sections 535 and 537.
The present case falls under section 537, and their Lordships hold the trial valid notwithstanding the breach of section 162".
Of course, lack of competency of jurisdiction, absence of a complaint by the proper person or authority specified, want of sanction prescribed as a condition precedent for a prosecution, in short, defects that strike at the very root of jurisdiction stand on a separate footing, and the proceedings taken in disregard or disobedience would be illegal.
The difficulty arises only when we have to consider the other provisions in the Code Which regulate procedure and which are found in a mendatory form, positive or negative.
It is in this class of cases that the distinction becomes important and material.
The scope of the decision in Subramania Aiyar 's case(2) has ' become so circumscribed that it is dobutful if it applies to the generality of cases of omissions and defects that come before the courts, excepting where they bring about the result that the trial was conducted in a manner different from that prescribed by the Code.
Let us now turn our attention to the relevant sections of the Code bearing on the requirement of a charge, the omission of a charge and the effect thereof.
Section 233 provides as follows: "For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239".
A power to alter or add to a charge, at any time before judgment is pronounced, is conferred on a court under section 227.
Sections 228 to 231 provide for the steps to be taken consequent on such alteration.
Section 225 shows what would be the effect of any errors in the framing of a charge.
It runs as follows: (1) [1926] L.R. 51 I.A. 96.
(2) [1901] L.R. 28 I.A. 257.
1186 "No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice".
Section 232(1) of the Code of Criminal Procedure refers more specifically to the effect of such error where an appellate Court or the High Court in revision or in confirmation proceedings, notices such an error and is in the following terms: "If any Appellate Court, or the High Court in the exercise of its powers of revision or of its powers under Chapter XXVII, is of opinion that any person convicted of an offence was misled in defence by the absence of a charge or by an error in the charge, it shall direct a new trial to be had upon a charge framed in whatever manner it thinks fit".
Then we have section 237, dealing with a case where an accused charged with one offence for which he might have been charged under the provisions of section 236 could be convicted of a different offence.
This applies only to cases where it is doubtful which of several offences the facts which can be proved will constitute.
Begu 's case(1) is an example; the conviction was under section 201 of the Indian Penal Code for causing the disappearance of evidence relating to a murder, though the charge was under section 302 of the Indian Penal Code.
Viscount Haldane observes: ".
A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made.
That is what happened here.
The three men who were sentenced to rigorous imprisonment were convicted of making away with the evidence of the crime by assisting in taking away the body.
They were not charged with that formally, but they were tried on evidence which brings the case under section 237".
(1) 11925] L.R. 52 I.A. 191.
1187 Finally, we come to sections 535 and 537 of the Code.
The former is in these terms: " (1) No finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed, unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal or revision thinks that a failure of justice has been occasioned by an omission to frame a charge, it shall order that a charge be framed, and that the trial be recommenced from the point immediately after the framing of the charge".
The latter runs thus: "Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent Jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account (a) of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or (b). . . . . . (c) of the omission to revise any list of jurors or assessors in accordance with section 324, or (d) of any misdirection in any charge to a jury, unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice".
A case of complete absence of a charge is covered by section 535, whereas an error or omission in a charge is dealt with by section 537.
The consequences seem to be slightly different.
Where there is no charge, it is for the court to determine whether there is any failure of justice.
But in the latter, where there is mere error or omission in the charge, the court is also bound to have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
The sections referred to indicate that in the generality of cases the omission to frame a charge is 150 1188 not per se fatal.
We are unable, therefore, to accept as sound the very broad proposition advanced for the appellants by Mr. Umrigar that where there is no charge, the conviction would be illegal, prejudice or no prejudice.
On the other hand, it is suggested that the wording of section 535 of the Code of Criminal Procedure is sufficiently wide to cover every case of 'no charge '.
It is said that it applies also to the case of a trial in which there has been no charge of any kind even from the very outset.
We are unable to agree that section 535 of the Code of Criminal Procedure is to be construed in such an unlimited sense.
It may be noticed that this group of sections relating to absence of a charge, namely, sections 225, 226 and 232 and the powers exercisable thereunder ' are with reference to a trial which has already commenced or taken place.
They would, therefore, normally relate to errors or omissions which occur in a trial that has validly commenced.
There may be cases where, a trial which proceeds without any kind of charge at the outset can be said to be a trial wholly contrary to what is prescribed by the Code.
By way of illustration the following classes of cases may be mentioned: (a) Where there is no charge at all as required by the Code from start to finish from the Committing Magistrate 's court to the end of the Sessions trial; the Code contemplates in section 226 the possibility of a committal without any charge and it is not impossible to conceive of an extreme case where the Sessions trial also proceeds without any formal charge which has to be in writing and read out and explained to the accused (section 210(2) and section 251 (A) (4) and section 227).
The Code requires that there should be a charge and it should be in writing.
A deliberate breach of this basic requirement cannot be cured by the assertion that everything was orally explained to the accused and the assessors or jurors, and there was 1189 no possible or probable prejudice.
(b) Where the conviction is for a totally different offence from the one charged and not covered by sections 236 and 237 of the Code.
On a charge for a minor offence, there can be no conviction for a major offence, e.g., grievous hurt or rioting and murder.
The omission to frame a separate and specific charge in such cases will be an incurable irregularity amounting to an illegality.
Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled up one, involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable.
In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant.
After all, in our considering whether the defect is illegal or merely irregular, we shall have to take into account several factors, such as the form and the language of the mandatory provisions, the scheme and the object to be achieved, the nature of the violation, etc.
Dealing with the question whether a provision in a statute is mandatory or directory, Lord Penzance observed in Howard vs Bodington(1).
"There may be many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the court to be of that material importance to the subject matter to which they refer, as that the legislature could have intended that the non observance of them should be followed by a total failure of the whole proceedings.
On the other hand, there are (1) 1190 some provisions in respect of which the court would take an opposite view, and would feel that they are matters which must be strictly obeyed, otherwise the whole proceedings that subsequently follow must come to an end".
These words can be applied mutatis mutandis to cases where there is no charge at all.
The gravity of the defect will have to be considered to determine if it falls within one class or the other.
Is it a mere unimportant mistake in procedure or is it substantial and vital? The answer will depend largely on the facts and circumstances of each case.
If it is so grave that prejudice will necessarily be implied or imported, it may be described as an illegality.
If the seriousness of the omission is of a lesser degree, it will be an irregularity and prejudice by way of failure of justice will have to be established.
This judgment should not be understood by the subordinate courts as sanctioning a deliberate disobedience to the mandatory requirements of the Code, or as giving any license to proceed with trials without an appropriate charge.
The omission to frame a charge is a grave defect and should be vigilantly guarded against.
In some cases, it may be so serious that by itself it would vitiate a trial and render it illegal, prejudice to the accused being taken for granted.
Coming now to the facts of the present case; William was on terms of intimacy with Beryl P.W. 13.
She was the sister of Donald Smythe.
The accused was practically living with her in her house.
The brother did not like their intimacy and was making attempts to separate Beryl from the accused.
On the evening of the day of the occurrence, Donald and his mother went to Beryl 's house, There was a quarrel 1191 between them and the accused was asked to get away.
She did not come but Donald came down into the courtyard.
There was a heated exchange of words.
The accused slapped Donald on the cheek.
Donald lifted his fist.
The accused gave one blow on his head with a hockey stick with the result that his skull was fractured.
Donald died in the hospital ten days later.
A plea of alibi was given up in the High Court.
The suggestion that Donald fell down and sustained the head injury while descending the stairs was ruled out by the evidence of the eye witnesses.
Nothing was established to justify any exercise of the right of private defence.
On these facts, which have been proved, the only question that arises is whether the appellant is guilty of murder under section 302 of the Indian Penal Code, or guilty only of culpable homicide, not amounting to murder, under the second part of section 304.
The High Court did not address itself to the nature of the offence.
It is obvious that the appellant did not intend to kill the deceased.
The evidence of the doctor is that the injury was likely to result in fatal consequences.
This by itself is not enough to bring the case within the scope of section 300.
There is nothing to warrant us to attribute to the appellant knowledge that the injury was liable to cause death or that it was so imminently dangerous that it must in all probability cause death.
The elements specified in section 300 of the Indian Penal Code are thus wanting.
We take the view, considering all the circumstances that the offence is the lesser one.
The appellant is acquitted of the charge of murder but is convicted under the second part of section 304, and sentenced to five years ' rigorous imprisonment.
IMAM J.
The appellant was charged with murder and nothing short of it, although it was stated in the charge that the offence was committed by him in furtherance of a common intention.
If the evidence failed to prove that the offence committed by him was in furtherance of a common intention, it would be nonetheless his offence, namely, murder, if his act in law amounted to murder.
The law does not require in such a case that a separate charge for murder should be framed, because the charge of murder was already on the record.
Strictly speaking, on the facts of the present case, the question raised by the reference does not arise.
Since it has been raised, it must be considered.
In Nanak Chand '8 case the view taken was that when an accused is charged under section 302 read with section 149 of the Indian Penal Code, it is illegal to convict him under section 302 of the Indian Penal Code without a charge having been framed against him under that section.
It was also held that if this was only an irregularity then on the facts of the case, the accused was misled in his defence.
In Suraj Pal 's case, in similar circumstances, it was held that failure to frame a charge under section 302 was a serious lacuna and the conviction was set aside on the ground that the accused had been prejudiced.
A careful examination of these two cases does not reveal any substantial conflict between them.
As I understand the provisions of the Code of Criminal Procedure, a separate procedure is set out for various class of cases triable by a court exercising powers under the Code.
So far as the framing of a charge is concerned, the Code expressly states the kind of cases in which no charge is to be framed.
In trial of warrant cases, cases before a Court of Sessions and a High Court, a charge must be framed.
Failure to frame a charge in such cases would be a contravention of the mandatory provisions of the Code.
Would such contravention amount to an illegality? Prima 1193 facie a conviction of an accused person for an offence with which he had not been charged but for which he ought to have been charged, is invalid.
It is said that by virtue of the provisions of sections 535 and 537 of the Code failure to frame a charge or an omission or irregularity in a charge, which is framed, does not by itself invalidate the conviction, unless the Court is satisfied that in fact a failure of justice has resulted.
It is, therefore, necessary to examine how far these provisions of the Code override its provisions relating to the framing of charges.
Section 233 of the Code expressly states that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235, 236 and 239.
There is no ambiguity in the language of this section.
While it insists upon a separate charge for every distinct offence it permits a single trial on several charges in the cases mentioned in sections 234, 235, 236 and 239.
Section 233 is a mandatory provision and the force of its direction is not weakened by the fact that another provision of the Code does permit a conviction of an accused for an offence with which he had not been charged.
In such a case no question of illegality or irregularity arises, as the conviction is expressly authorized by the Code.
The conviction is valid because of the statute itself and not because of section 535.
On the charge framed, after it has been explained to the accused, the plea of guilty or not guilty is recorded.
If the accused pleads guilty, certain consequences follow.
If he pleads not guilty, the trial must proceed according to law.
Is the framing of a charge and the recording of the plea of the accused merely a ritual or a fundamental provision of the Code concerning procedure 1194 in a criminal trial? I think it is the latter.
Are the express provisions of the Code as to the manner in which a trial is to proceed to be ignored, or considered as satisfied, merely because the Court explained to the accused as to what he was being tried for?
I a prehend not.
For to do so is to replace the provisions of the Code by a procedure unwarranted by the statute itself.
In my opinion, a total absence of a charge from start to finish in a case where the law requires a charge to be framed, is a contravention of the provisions of the Code as to the mode of trial and a conviction of the accused of an offence in such a case is invalid and the question of prejudice does Dot arise.
None of the decisions of the Privy Council suggest that in such a case the conviction will be deemed to be valid by virtue of the provisions of section 535, unless the Court is satisfied that there has been a failure of justice.
In any event, the Code expressly provides that in such cases the conviction need not be set aside, unless, in fact, a failure of justice has resulted.
Under the provisions of section 232 of the Code an appellate Court or a High Court exercising its powers of revision or its powers under Chapter XXVII, must direct a new trial of a case in which an accused person has been convicted of an offence with which he had not been charged, if it is satisfied that he had been misled in his defence by the absence of a charge.
In such a case a court is bound to act according to its provisions.
It is the provision of section 535 to which reference must be made in order to ascertain whether that which was invalid shall be deemed to be valid, unless the court was satisfied that there had been a failure of justice.
I regard with concern, if not with dismay, a too liberal application of its provisions to all cases in which there is an absence of a charge, 1195 although a charge ought to have been framed.
It is difficult to lay down any hard and fast rule as to when the provisions of section 535 will or will not be applicable.
The facts of each case, as they arise, will have to be carefully considered in order to decide that that which was prima facie invalid is deemed to be valid by virtue of its provisions.
There may be cases where the omission to frame a charge was merely a technical defect in which case section 535 would apply.
On the other band, there may be cases where failure to frame a charge affects the mode of trial or it is such a substantial contravention of the provisions of the Code relating to the framing of charges that prejudice may be inferred at once and the conviction which was prima facie invalid continued to be so.
In a criminal trial innocence of an accused is presumed,unless there is a statutory presumption against him, and the prosecution must prove that the accused is guilty of the offence for which he is being tried.
The prosecution is in possession of all the evidence upon which it relies to establish its case against the accused.
It has the privilege to ask the Court to frame charges with respect to the offences which it wishes to establish against the accused.
On the Court itself a duty is cast to frame charges for offences which, on the evidence, appear to it prima facie to have been committed.
If in spite of this a charge under section 302 read with 149 of the Indian Penal Code only is framed against an accused person and not under section 302 of the Indian Penal Code, it will be reasonable to suppose that neither the prosecu tion nor the Court considered the evidence sufficient to prove that murder was committed by the accused and the omission to frame a charge under section 302 must be regarded as a deliberate act of the Court by way of notice to the accused that he was not being tried for that offence.
It would not be a case of mere omission to frame a charge.
If, therefore, the accused is convicted under section 302, I would consider his conviction as invalid, as he was misled in his defence.
In conclusion I would point out that the provisions of the Code of Criminal Procedure are meant to be 151 1196 obeyed.
Contravention of its provisions are unnecessary and neither the prosecution nor the Courts of trial should ignore its provisions in the hope that they might find shelter under sections 535 and 537 of the Code.
Where the contravention is substantial and a retrial becomes necessary, public time is wasted and the accused is put to unnecessary harassment and expense.
| On the completion of their 25 years of qualifying serv ice, the appellants were compulsorily retired in public interest, and were to receive 3 months salary in lieu of notice.
Thereafter, the respondent Government passed a general order forbidding re employment of compulsorily retired persons in semi Government institutions.
The appellants filed, writ petitions under article 32 of the Con stitution challenging the compulsory retirement orders as violative of article 16 and the ban on such re employment as a stigma under article 311.
Dismissing the petitions, the Court, HELD: (1) Article 16 does not prohibit the prescription of reasonable rules for compulsory retirement.
The provi sion for compulsory retirement in public interest after the completion of a certain period of qualifying service or attainment of a certain age, applies to all Government servants and as such it is not open to challenge either under article 14 or under article 16, and the individual applica tion of the order in a given case cannot offend article 16.
[367 D H] T. C. Shivacharana Singh V. State of Mysore A.I.R. 1965 S.C. 280, applied.
Union of India vs Col. J.N. Sinha, & Anr.
[1971] 1 S.C.R. 791; Tara Singh etc.
vs State of Rajasthan & Ors.
[19753 3 S.C.R. 1002, and B. Narayana Murthy & Ors.
vs State of Andhra Pradesh etc.
[1971] Supp.
S.C.R. 741, referred to.
(2) The Government order forbidding re appointment of compulsorily retired persons as a stigma within the meaning of Article 311 is not an infringement of fundamental rights, and the enforcement of violation of Article 311 does not come within the scope of Article 32.
The ban is not against anyone individually and has a reasonable basis and some relation to the suitability for employment or appointment to an office.
[367A B,369 A B] Krishna Chander Nayar vs Chairman, Central Tractor Organisation & Ors. ; Shyam Lal vs State of U.P. ; ; Tata Engineering and Locomo tive Company Ltd. vs Assistant Commissioner of Commercial Taxes & Anr. ; and Hukumchand Mills Ltd. vs The State of Madhya Bharat & Anr. ; , referred to.
(3) The Government of Andhra Pradesh has by an adminis trative order constituted a review committee for each department to review orders of retirement it public interest and to revoke and modify the same, if necessary.
petitioners made representations to the review committee, and are not justified in applying to this Court.
[370A B]
|
Appeals Nos. 422 & 423 of 1958.
433 Appeals from the judgment and decree dated November 22, 1957, of the Allahabad High Court (Lucknow Bench), Lucknow, in Civil Misc.
Applications Nos. 54 and 56 of 1957.
Niamatullah, section N. Andley and J. B. Dadachanji for O. N. Srivastava, for the appellant.
H. N. Sanyal, Additional Solicitor General of India, Bishun Singh and C. P. Lal, for the respondent.
December 14.
The Judgment of section K. Das and A. K. Sarkar, JJ. was delivered by ' Sarkar, J. Subba Rao, J. delivered a separate judgment.
SARKAR J. Raja Udit Narain Singh was the proprietor of Ramnagar estate, a big taluqdari in district Barabanki in Uttar Pradesh, formerly known as the United Provinces of Agra and Oudh and for short U.P., an abbreviation still in use.
Ramnagar estate was governed by the Oudh Estates Act (1 of 1869), and in the absence of any disposition by the holder for the time being, it appears to have devolved according to the rule of primogeniture.
Raja Udit Narain died in 1927 leaving two sons of whom the older was Raja Harnam and the younger Kanwar Sarnam.
Kanwar Sarnam died in 1928 leaving the respondent his only son, and a widow, Parbati Kuer.
Raja Harnam died thereafter in 1935 without issue, leaving the appellant his sole widow.
After the death of Raja Harnam disputes arose between the respondent, who was then a minor and was represented by his certificated guardian, his mother Parbati Kuer, and the appellant, a reference to which has now to be made.
The appellant 's contentions appear to have been as follows : Raja Udit Narain left a will bequeathing certain villages of Ramnagar estate to Raja Harnam absolutely and the rest of it, as set out in a schedule to the will, to him for life and after him to Kanwar Sarnam for life and thereafter or failing the latter, to the respondent absolutely.
The will declared that village Bichelka had been given to her for life as " runumal " 434 or wedding present and that she would have a maintenance of Rs. 500, per month out of the estate.
The schedule to the will did not mention five of the villages of Ramnagar estate with regard to which Raja Udit Narain died intestate and these thereupon devolved on Raja Harnam under the rule of primogeniture that applied to the estate.
After Raja Udit Narain 's death, Raja Harnam went into possession of the estate and executed a will leaving all the properties over which he had a power of disposition, including the seven villages bequeathed to him absolutely by Raja Udit Narain and the five villages not disposed of by his will, to her in absolute right.
Thereafter, Raja Harnam executed a deed of gift in her favour giving her most of the immovable properties covered by his will and several house properties in Lucknow.
On these allegations the appellant made a claim to all the properties said to have been given to her by the, aforesaid wills and the gift of Raja Harnam.
Parbati Kuer, on behalf of her son, the respondent, challenged the factum and validity of the wills and the gift said to have been made by Raja Harnam and resisted the appellant 's claim.
And so the disputes between the parties arose.
The Deputy Commissioner of Barabanki intervened to restore peace and brought about a family arrangement, into which the parties entered on January 22, 1935, settling the disputes on the terms therein contained.
Under this family arrangement certain properties came to the appellant but it is not necessary for the purposes of these appeals to refer to them in detail.
The peace created by the family arrangement did not last long.
The respondent after attaining majority on September 12, 1940, repudiated the family arrangement on grounds to which it is unnecessary to refer.
On September 6, 1943, he filed a suit against the appellant to set aside the family arrangement and recover from her the properties of the estate in her possession.
The defence of the appellant to the suit was that the family arrangement was binding on the respondent.
However, to cover the eventuality of the 435 family arrangement being found to be void or voidable, the appellant herself filed a suit against respondent claiming title to various properties of the estate under the will of Raja Udit Narain and the will and gift of Raja Harnam.
The respondent contested this suit.
With the particulars of the claims and defences in the suits or their soundness we are not concerned in these appeals, and a reference to them will not be necessary.
While these two suits were pending, the appellant was on November 12, 1945, declared by the District Judge of Lucknow under the provisions of the Lunacy Act, 1912, to be a person of unsound mind.
Thereupon the Court of Wards assumed superintendence of the properties of the appellant under the provisions of the U.P. Court of Wards Act, hereinafter referred to as the Act, and placed them in the charge of the Deputy Commissioner of Barabanki district in which most of these properties were situate.
The Court of Wards gave to these properties the name Ganeshpur estate.
Upon such assumption of charge the cause titles of the two suits were amended and in the place of the appellant 's name, the name " Deputy Commissioner, Barabanki I/C Court of Wards, Ganeshpur estate " was substituted, such amendment being required by the provisions of section 55 of the Act the terms of which we shall presently set out.
The letters " I/C " in the substituted name were an abbreviation of the words " in charge of.
" Thereafter, the respondent 's suit was dismissed by a decree dated June 3, 1947, except as to his claim to two villages, it being found that in them Raja Harnam had only a life estate and to them the appellant had no claim after his death, and that these had been given to her by the family arrangement by mistake.
As the family arrangement was substantially upheld by the decree in the respondent 's suit, the appellant 's suit became unnecessary for it bad been founded on the basis that the family arrangement was void or could be avoided.
It had therefore to be dismissed.
Two appeals were filed from the decisions in these two suits in the High Court at Lucknow, one by the Deputy 436 Commissioner of Barabanki representing the estate of the appellant against the decree dismissing the appellant 's suit, being F.C.A. No. 99 of 1947, and the other by the respondent, being F.C.A. No. 2 of 1948, against the decree dismissing his suit.
F.C.A. No. 99 appears to have been filed merely as a matter of safety, to be proceeded with only in case the respondent 's appeal, F.C.A. No. 2 of 1948, succeeded.
While the appeals were pending, the respondent made an application under the Act to have his estate placed under the charge of the Court of Wards.
That application was accepted and the superintendence of his estate was taken over by the Court of Wards on February 8, 1950.
The respondent 's estate was also placed by the Court of Wards in the charge of the Deputy Commissioner, Barabanki, as the estate was within his jurisdiction.
The Court of Wards retained for it its old name of Ramnagar estate.
The cause titles of the appeals had again to be amended in view of section 55 of the Act and for the name of the respondent, the name " Deputy Commissioner Barabanki I/C Court of Wards Ramnagar estate " was substituted.
The cause titles of the appeals then became, Deputy Commissioner, Barabanki I/C Court of Wards Ganeshpur estate Appellant versus Deputy Commissioner, Barabanki I/C Court of Wards Ramnagar estate Respondent AND Deputy Commissioner, BarabankiI/C Court of Wards Ramnagar estate Appellant versus Deputy Commissioner, BarabankiI/C Court of Wards Ganeshpur estate . Respondent.
The position thus was that the estates of both the appellant and the respondent came under the superintendence of the same Court of Wards and were placed in the charge of the same Deputy Commissioner in whose name each party sued and was sued in the appeals.
This situation was the occasion for the 437 proceedings to be referred to presently, from which these appeals arise.
Before coming to these proceedings, certain other facts have however to be stated.
On December 3, 1951, the Court of Wards passed a resolution settling the appeals on certain terms as it thought that such settlement was in the best interests of the two contending wards, particularly in view of the heavy costs of the litigation and the then impending legislation for abolition of zemindaries.
Thereafter, under the instructions of the Court of Wards, the lawyers appearing for the parties in the appeals presented to the High Court on April 28,1952, petitions for recording compromises in the appeals and for passing decrees in accordance therewith.
On May 2, 1952, the High Court passed orders directing the compromises to be recorded and decrees to be passed in the appeals in terms thereof.
The appeals were thus disposed of and the proceedings therein terminated.
When the appeals were so compromised, the paperbooks in respect of them were in the course of preparation.
It is not necessary to encumber this judgment by setting out the terms of the compromise.
It is however of some importance to state that the petitions embodying the compromise were signed twice by Mr. K. A. P. Stevenson, once as Deputy Commissioner Barabanki, I/C Court of Wards, Ramnagar estate, district Barabanki (Appellant in F.C.A. No. 2 of 1948 and respondent in F.C.A. No. 99 of 1947)" and again as " I/C Court of Wards, Ganeshpur estate, district Barabanki (Respondent in F.C.A. No. 2 of 1948 and appellant in F.C.A. No. 99 of 1947)".
Obviously, Mr. Stevenson, the Deputy Commissioner, Barabanki, signed each petition once as representing the appellant and again as representing the respondent.
It is also of some interest to note that the petitions were presented in Court by Sri Sita Ram, Advocate for the appellant 's estate and Sri Bishun Singh, Advocate for the respondent 's estate.
Some more events happened before the proceedings out of which these appeals arise were started.
Shortly after the compromise decrees had been passed, ail Act 56 438 abolishing zemindaries came into force in U.P. and the zemindary estates of the parties vested in the Government of U.P.
Thereupon the Court of Wards ceased to function.
In anticipation of this situation the estates of the parties were released by the Court of Wards.
In view, however, of the appellant 's mental incapacity, an order was passed by the District Judge of Lucknow, on April 27, 1953, in the lunacy proceedings, placing her estate in the charge of the Deputy Commissioner, Barabanki and one Mr. M. L. Sarin and appointing them as the guardians of her person and property.
A few years later, the appellant recovered from her affliction and an order was passed by the District Judge, Lucknow on October 6, 1956, declaring her to be of sound mind.
Her aforesaid guardians were thereupon discharged and she was put in possession of her properties.
After the appellant had regained her mental competence, she began to entertain a feeling that the compromise in the appeals had not done full justice to her and she set about to find a way to get out of it.
On January 14, 1957, the appellant made two applications to the High Court at Lucknow, one in each of the said appeals Nos. 99 of 1947 and 2 of 1948, for an order that the work of the preparation of the paperbooks of the said appeals be resumed under Chapter XIII of the Rules of the High Court from the stage at which it was interrupted by the compromise decrees, as those decrees were a nullity and did not terminate the appeals which must therefore be deemed to be pending.
These applications were heard together by the High Court and dismissed by its judgment and orders dated November 22, 1957.
It is against this judgment and the orders that the present appeals have been brought.
These appeals were consolidated by an order made by the High Court and they have been heard together in this Court.
It is not the appellant 's case that the compromise was brought about by fraud or was otherwise vitiated on similar grounds and is therefore liable to be set aside.
No avoidance of the compromise is sought.
In fact, the appellant had initially alleged in her petitions 439 that the compromise had been brought about by fraud and collusion.
She however amended the petitions by deleting the paragraphs containing these allegations and chose to proceed on the purely legal basis that the compromise was a nullity.
It is for this reason that we have not referred to the terms of the compromise.
No question arises in those appeals as to their fairness or as to whether they should be avoided on any equitable ground.
If the compromise decrees were a nullity as the appellant contends, then she would no doubt be entitled to proceed on the basis as if they bad never been made and in that view her applications would be competent and should succeed.
The question is whether the compromise decrees were a nullity.
The appellant first says that the compromise decrees were a nullity as the terms of section 56 of the Act which are mandatory, had not been complied with.
That section reads thus: Section 56: When in any suit or proceeding two or more wards being parties have conflicting interests, the Court of Wards shall appoint for each such ward a representative and the said representative shall thereupon conduct or defend the case on behalf of the ward whom he represents, subject to the general control of the Court of Wards.
It is true that no representative had been appointed under this section for either party for the purposes of the two appeals.
It is said that this omission to appoint representatives made the compromise decrees a nullity as the terms of the section are imperative.
The question then is, is section 56 imperative ? In our view, it is not.
It, no doubt, says that " the Court of Wards shall appoint .
a representative.
" But it is well known that the use of the word " shall " is not conclusive of the question whether a provision is mandatory: see Hari Vishnu Kamath vs Syed Ahmad Ishaque (1).
The intention of the legislature has to be gathered from the whole statute.
Several grounds are suggested why section 56 should be held to be imperative.
First, it is said that otherwise, (1)[1955] 1 S.C.R. 1104.
440 in view of section 55, it would be otiose.
Section 55 is in these terms: Section 55: No ward shall sue or be sued nor shall any proceedings be taken in the civil court otherwise than by and in the name of the Collector in charge of his property or such other person as the Court of Wards may appoint in this behalf.
It is said that the concluding words of section 55 give the Court of Wards a discretionary power to appoint a representative and therefore if section 56 was only directory, then it would also give the same discretionary power to appoint a representative and thus become otiose.
The contention seems to us to be ill founded.
In order that one section may be rendered otiose by a certain interpretation of another, that interpretation must make the two sections deal with the same subject matter, the two must then be serving the same purpose.
The argument is founded on the basis that read as an imperative provision section 56 would not be otiose, that is, then it would be serving a purpose different from that which section 55 served.
Now, we do not appreciate how section 56 becomes otiose by being read as a directory provision while it would not be so if read as a mandatory provision.
Surely, the subject matter of a statutory provision is not changed whether it is read as directory or as mandatory.
If it was not otiose as a mandatory provision, it would no more be so as a directory provision.
Another fallacy in this argument is that it assumes that by reading section 56 as a directory provision a discretion is conferred on the Court of Wards to appoint or not to appoint representatives for the wards, as it pleases.
A provision giving a discretionary power leaves the donee of the power to use or not to use it at his discretion.
A directory provision however gives no discretionary power free to do or not to do the thing directed.
A directory provision is intended to be obeyed but a failure to obey it does not render a thing duly done in disobedience of it, a nullity.
Therefore, it seems to us to be wrong to say that by reading section 56 as merely directory any discretion is conferred on the Court of Wards.
441 It also seems clear to us that sections 55 and 56 deal with entirely different matters.
Section 55 deals only with the name in which a ward may sue or be sued.
Section 56 deals with appointment of representatives for two or more wards who are parties to a litigation and have conflicting interests, to defend or conduct the case on behalf of the wards, and section 56 would apply whether the wards were sued in the names of the Collectors in charge of their properties or in the names of persons appointed for the purpose by the Court of Wards.
There is nothing to show that the represen tatives appointed under section 56 are to be named in the record of the case as representing the wards.
The section does not say so Section 56 contemplates a stage where two or more wards are already parties to a litigation.
It therefore contemplates the wards suing or being sued in the names of the Collectors in charge of their properties or of other persons appointed under section 55.
Notwithstanding this, section 56 does not provide that the representatives appointed under it shall replace the Collector or the person appointed under section 55 on the record of the litigation.
Therefore it seems to us clear that if section 56 is read as a directory provision, section 55 would not become otiose.
Next it is said that sections 57 and 58 of the Act also deal with the appointment by the Court of Wards of representatives for the wards in certain proceedings between them but in these sections the words used are respectively "shall be lawful for the Court of Wards to appoint" and "may appoint", while the word used in section 56 is "shall" and that this distinction clearly indicates that the intention of the legislature is to make section 56 imperative.
This argument also does not appear to us to be sound.
We are not satisfied that because a statute uses in some provisions the word "shall" and in others the words "shall be lawful" or "may", it necessarily indicates thereby that the provisions containing the word "shall" are to be understood as mandatory provisions.
We think that each provision has to be considered by itself, and the context in which the word "shall" occurs in it, the object of the provision 442 and other considerations may lead to the view that in spite of the use of the word "shall", it is a directory provision.
It seems to us that sections 57 and 58 rather indicate that if the appointments there contemplated are merely directory, the appointments provided by section 56 are also directory.
Section 57 empowers the Court of Wards when any question arises between two or more wards of such nature that an adjudication upon it by a court is expedient, to appoint a representative for each ward and require the representatives so appointed to prepare a statement containing the point or points for determination and to file the statement in a civil court in the form of a case for the opinion of the court.
The section further provides that the civil court shall proceed to hear and dispose of the case in the manner prescribed by the Code of Civil Procedure for the hearing and disposal of suits and also that the case shall be conducted by the representatives appointed for the wards subject to the general control of the Court of Wards.
Section 58 empowers the Court of Wards when it thinks that a dispute which has arisen between two or more wards is a fit subject for reference to arbitration, to appoint a representative for each ward and require the representatives to submit the dispute to the arbitration of a person or persons approved by it.
It would appear therefore that the position of a ward is the same whether the case is governed by section 56, section 57 or section 58.
In each case one ward has a dispute with another; in each their interests conflict.
In the first two cases, the conflict is submitted to the decision of a civil court and in the third, to arbitration.
There is no reason to think that the legislature intended that the interests of the wards required more protection in a case falling under section 56 than in a case falling under section 57 or section 58.
If, therefore, as the argument concedes, the appointment of representatives was not intended by the legislature to be obligatory under sections 57 and 58, no more could the legislature have intended the appointment of representatives under section 56 obligatory.
This leads us to the argument based on the object of a. 56.
It is said that the object of the section is to 443 protect the interests of the wards.
Unless the terms of the section are obeyed, it is contended, the wards ' interests will suffer.
So, it is said that section 56 must be construed as a mandatory provision.
This argument overlooks that part of section 56 which makes the representatives appointed under it subject to the general control of the Court of Wards in the discharge of their functions.
It is clear, therefore, that it is the intention of the legislature that the interests of the wards should really be in the charge of the Court of Wards in spite of the appointment of the representatives and in spite of the conflicting interests of the wards.
It follows that the direction to appoint representatives has not been inserted in section 56 to protect the conflicting interests of the wards or to ensure such interests being properly looked after by taking them out of the charge of the Court of Wards.
It would indeed be against the whole concept of the Court of Wards Act to hold that it contemplated a situation where the interests of the wards would be taken out of the hands of the Court of Wards while it retained charge of their estates.
We are, therefore, inclined to agree with the view of the learned Judges of the High Court that " The reason for incorporating section 56 in the Act appears to have been with the idea of avoiding any embarrassment to the officers of the Court of Wards who may have had the task in certain cases of representing rival interests.
" There is thus nothing in the object with which section 56 was enacted to lead us to hold that its terms were intended to be imperative.
We may look at the matter from another point of view.
Under section 15 of the Act, the Court of Wards, upon assuming the superintendence of any property, is to nominate a collector or other person to be in charge of it.
Usually it is the Collector of the district, sometimes called the Deputy Commissioner, in which the largest part of the property is situate who is nominated for the purpose.
In the present case, as it happened, the estates of both the appellant and the respondent were situate in the same district of Barabanki and had, therefore, been put in charge of 444 the same officer, namely, the Deputy Commissioner of that district.
Now, it may so happen in another case that the estates of the wards are in charge of different Collectors or Deputy Commissioners.
To such a case also section 56 would be applicable if the two wards happened to be parties to a litigation with conflicting interests.
It would be strange if in such a case any decree that came to be passed had to be held to be a nullity because the terms of that section had not been complied with.
It could not, of course, then be said that the interests of the wards had been prejudiced by the omission to appoint representatives under section 56, for, there would in such a case be no difficulty for the Collectors to look after the interests of their respective wards in the best way possible.
This view of the matter also seems to indicate that section 56 is not imperative.
We have now examined all the arguments advanced in support of the view that section 56 is an imperative provision.
We find them without any force.
The question whether a statute is imperative or otherwise is after all one of intention of the legislature.
The rules of interpretation are for discovering that intention.
We have not found any rule which would lead us to hold that section 56 was intended to be an imperative provision.
The section serves no purpose except the removal of practical inconvenience in the conduct of a suit or its defence.
By providing that the representatives shall be subject to the control of the Court of Wards, the section makes it clear that in spite of the appointment of the representatives the Court of Wards retains all powers in respect of the litigation.
Such powers are given to the Court of Wards by the Act itself.
Under section 38, the Court of Wards has the right to do all things which it may judge to be for the advantage of the ward.
One of such powers is to conduct a litigation on behalf of a ward, in any manner it thinks best in the interests of the ward it could therefore compel the representatives to settle the litigation on terms decided by it.
If it could so compel the representatives, it would be insensible to suggest that it could not itself effect the settlement.
445 Clearly, the Court of Wards could itself settle a litigation in which two of its wards were involved even where representatives had been appointed under section 56.
The appointment of representatives could not hence have been intended to be obligatory.
In our view.
therefore, the section is clearly directory.
The failure to observe the provisions of the section did not render the compromise decrees in this case a nullity.
It is then said that there was in law no compromise in this case, A compromise, it is said, is a contract and in order that there may be a contract 'there must be two parties to it which there was not in this case.
It is contended that there was only one party in the present compromise, namely, the Deputy Commissioner, Barabanki.
It is true that there must be two parties to make a contract.
But it seems to us that the contention that there was only one party to the compromise proceeds on a misconception of its real nature.
It overlooks that the compromise was really between the two wards, the appellant and the respondent.
The compromise was brought about by the Court of Wards in exercise of its statutory powers.
That the Court of Wards could make a compromise on behalf of a ward is clear and not in dispute.
It does not lose its powers when it has two wards and can therefore make a compromise between them.
When it does so, it makes a contract between the two of them.
Therefore, to the present compromise there were two parties.
The act expressly contemplates a right in the Court of Wards to make a contract between two of its Wards.
Thus under section 61(1) of the Act, a contract executed by the Court of Wards for a ward may be executed in its own name or on behalf of the ward.
Under sub sec.
(3) of that section, when the transferor and transferee are both its wards, the Court of Wards shall have power to enter into convenants on behalf of the transferor and the transferee respectively.
Sub section (2) of section 61 provides that the convenants made by the Court of Wards on behalf of a ward shall be binding on the ward.
If the Court of Wards did not have the power to make a contract between two of its wards, it would 57 446 often be impossible to carry on the management of the wards ' properties beneficiently.
The power of the Court of Wards to make a contract for a ward is a statutory power.
We find nothing in the Act to indicate that such power does not exist for making a contract between two wards.
It is true that the cause titles of the appeals showed the Deputy Commissioner, Barabanki, as both the appellant and the respondent.
But that did not make the Deputy Commissioner himself a party to the appeals.
There, of course, cannot be a litigation unless there are two parties to it.
It will be remembered that in the cause titles the Deputy Commissioner, Barabanki, was described once as in charge of Ganeshpur estate and again as in charge of Ramnagar estate.
This indicates that the Deputy Commissioner was mentioned in the cause titles as representing the the two real parties, i.e., the appellant and the respondent.
Then again the Deputy Commissioner, Barabanki, was brought on the record because of section 55 of the Act.
The terms of that section have been set out earlier and they leave no doubt that the person Suing Or being sued is the ward and that the ward is suing or being sued in the name of the Collector.
Therefore also when the appeals were compromised, the compromise was between the parties to the appeals, namely, the appellant and the respondent.
It was not a compromise which the Deputy Commissioner, Barabanki, made with himself though he alone signed the compromise petition.
The contention that there was no compromise in this case because there were not two parties, must hence fail.
It is lastly said that the compromise decrees were a nullity in view of the principles embodied in Or.
XXXII of the Code of Civil Procedure.
That order deals with minors and persons of unsound mind and requires that when any such person is a party to a suit, the Court will appoint some one to be his guardian for the suit.
It is true that it is necessary that the person appointed as guardian should have no interest in the litigation against the person under disability.
It is 447 contended on behalf of the appellant that she was a person of unsound mind and so some disinterested person should have been appointed her guardian for the appeals and that the Deputy Commissioner, Barabanki, was not such a disinterested person as he was also interested in the respondent, the opposing party in the appeals.
It is said that the decrees passed in the appeals without another guardian having been appointed for the appellant are a nullity.
Now, Or.
XXXII, r.4(2) provides that where a person under disability has a guardian declared by a competent authority, no other person shall be appointed his guardian unless the Court considers for reasons to be recorded, that it is for the welfare of the person under disability that another person should be appointed as his guardian.
Section 27 of the Act gives the Court of Wards the power to appoint a guardian for a ward who is of unsound mind.
The Deputy Commissioner, Barabanki, was in fact appointed the guardian of the appellant under the Act when upon her lunacy, her estate came under the superintendence of the Court of Wards.
Her estate was in his charge.
Therefore, under the provisions of Or.
XXXII, r. 4, the Deputy Commissioner, Barabanki, was entitled to act as the appellant 's guardian for the appeals and the Court had not made any order a pointing another person to be her guardian.
The Court of Wards is a statutory body and was created to look after the interests of the wards.
Its constitution is such that it can be trusted to be impartial.
Its position is wholly different from that of a private guardian.
No fault can be found with the Court in having left the interests of the appellant in charge of the Court of Wards though it was also in charge of the interests of the respondent.
Indeed, it is at least arguable if the civil court could have by any order that it might have made, prevented the Court of Wards from discharging its statutory duty of looking after the interests of its ward.
Therefore it seems to us that the failure of the Court to appoint another person as the guardian of the appellant for the suits or the appeals did not make the compromise decrees a nullity.
448 One other point raised on behalf of the appellant remains to be considered.
It is said that in fact there was no compromise between the two wards.
Now, this is a question of fact and was not raised in the High Court.
The respondent had no chance of meeting the allegation of fact now made.
We also have not the advantage of the views of the High Court on this question of fact.
It would be unfair to the respondent to allow such a question to be raised now.
However that may be, we are satisfied that there was in fact a compromise made between the two wards by the Court of Wards.
Our attention has been drawn to the resolution passed by the Court of Wards directing the compromise to be made.
That, in our opinion, brought about the compromise between the two wards; it was the only way in which the Court of Wards could have brought about the compromise.
We may also point out that the compromise petitions were signed by the Deputy Commissioner, Barabanki, twice, once for each of the parties, and had been 'put into court by the lawyers respectively engaged for the parties for the purpose.
We, therefore, think that the contention that there was in fact no compromise is entirely without force.
In our opinion, these appeals must fail and they are therefore dismissed with costs.
SUBBA RAO J. I have had the advantage of perusing the judgment of my learned brother, Sarkar, J.
I regret my inability to agree with him.
The facts of the case and the progressive stages of the litigation are fully stated in the judgment of my learned brother, and it is not necessary to restate them here in detail.
It would suffice if the factual basis giving rise to the main controversy in the case be stated.
The appellant was the owner of Ganesbpur estate and the respondent of Ramnagar estate.
Both of them became wards of the Court of Wards and both the estates were under the management of the Deputy Commissioner, Barabanki.
Between the two estates there was litigation and at the crucial point of time, 449 two appeals, being F.C.A. No. 99 of 1947 and F.C.A. No. 2 of 1948, were pending on the file of the High Court at Allahabad.
The cause titles in the appeals give the following array of parties F.C.A. No. 99 of 1947 Deputy Commissioner, Barabanki, I/C Court of Wards, Ganeshpur estate, district Barabanki.
Appellant versus Deputy Commissioner, Barabanki, I/C Court of Wards, Ramnagar estate, district Barabanki.
Respondent F.C.A. No. 2 of 1948 Deputy Commissioner, Barabanki, I/C Court of Wards, Ramnagar estate, district Barabanki.
Appellant versus Deputy Commissioner, Barabanki, I/C Court of Wards, Ganeshpur estate, district Barabanki.
Respondent It is clear from the said array of parties in the appeals that the same person represented both the estates, and the Deputy Commissioner, Barabanki, was both the appellant and respondent.
It appears that the Court of Wards effected a settlement between the two wards in respect of the outstanding disputes between them, and, presumably as directed by the Court of Wards, the Deputy Commissioner, Barabanki, filed a petition in the High Court for recording the compromise.
The petition was signed by Sri K. A. P. Stevenson, I.A.S., Deputy Commissioner, Barabanki, on behalf of both the estates.
On May 2, 1952, the High Court passed a decree in terms of the said compromise.
The said facts give rise to a short but difficult question, namely, whether the compromise effected was a nullity entitling the appellant to ignore it and to have the appeals disposed of on merits.
The main argument of Mr. Niamatullah, the learned Counsel for the appellant, may be summarized thus: Section 56 of the U.P. Court of Wards Act, 1912 450 (hereinafter called the Act) imposes a statutory duty on the Court of Wards to appoint separate representatives when in a suit there are conflicting claims between two of its wards, and the Court has no jurisdiction to proceed with such a suit and make any order or decree on merits or on compromise unless such an appointment is made.
In the present case, admittedly no such appointment was made and the compromise petition was filed by the Deputy Commissioner, Barabanki, in his dual capacity as the appellant as well as the respondent, and, therefore, the decree made therein was a nullity.
If it was a nullity, the argument proceeds, the Court should ignore it and dispose of the appeals as if they were still on its file.
This argument, if accepted, would entail the acceptance of the appeals.
As I propose to do so, it is unnecessary to particularize the other contentions of the learned Counsel or give my findings thereon.
For the same reason, the counter argument of the learned Additional Solicitor General may conveniently be confined only to the said argument.
While conceding that the application under section 151 of the Civil Procedure Code was maintainable if the decree was a nullity, the learned Counsel for the respondent contends that notwithstanding the non compliance of the provisions of section 56 of the Act, the High Court had jurisdiction to record the compromise lawfully effected by the Court of Wards, and therefore, the decree was not a nullity and could not be ignored.
The question falls to be decided on a true interpretation of the provisions of section 56 of the Act.
Section 56 appears in Chapter VII of the Act dealing with suits.
It would be convenient at the outset to read sections 55 and 56 of the Act.
section 55: "No ward shall sue or be sued nor shall any proceedings be taken in the civil court otherwise than by and in the name of the Collector in charge of his property or such other person as the Court of Wards may appoint in this behalf.
" section 56: " When in any suit or proceeding two or more wards being parties have conflicting interests, 451 the Court of Wards shall appoint for each such ward a representative and the said representative shall thereupon conduct or defend the case on behalf the ward whom he represents, subject to the general control of the Court of Wards.
" These two sections are placed in juxtaposition and they appear to be complementary to each other.
Section 55 prescribes the mode or proceeding by or against the ward in a court.
Ordinarily, he should sue or be sued in the name of the Collector in charge of his pro.
perty.
It also visualizes the contingency when a Court of Wards may appoint in its discretion some other person instead of the Collector for the Purpose of this section.
56 deals with a particular situation, namely, when there are conflicting interests between the wards who are parties to a suit, and, in that event, a duty is cast on the Court of Wards to appoint separate representatives for each such ward.
The object of section 56 is selfevident; for, in the contingency contemplated by that section, an anomalous situation is created, if the general rule prescribed by section 55 is followed, for both the plaintiff and the defendant would be the Collector, a procedure that cannot be tolerated by any civilised jurisprudence.
That apart, the procedure is obviously detrimental to the interests of the wards, for there is every danger of their respective interests not being protected and properly represented in the court.
To avoid this anomaly and obvious prejudice to the parties, section 56 has been enacted.
A combined reading of the said provisions therefore indicates that the procedure, laid down in section 55 must, in the contingency contemplated by section 56, give way to the procedure prescribed by the latter section.
The next question is what does the word " representative " in section 56 mean ? Does it mean, as the learned, Additional Solicitor General contends, an agent who is entrusted with the duty of assisting the Collector, or., as the learned Counsel for the appellant argues, one who represents the ward in a suit by being brought on record as his representative ? The word " representative " has in law different meanings.
To represent means " to stand in place of " and a representative 452 is one, who stands in the place of another.
The word " reprsentative " with prefixes like legal ' or personal ' added or not, when used with reference to ownership of land may mean an heir, executor or legatee.
But in the context of a suit, the word is also used in the sense that, one who represents another, when the latter is a disqualified person like a minor or a lunatic.
In this category come guardians.
They are appointed by court to represent a minor or a lunatic, as the case may be, and the suit without such representative cannot legally proceed.
But a statute may confer power upon an authority other than the court to appoint a representative to a disqualified person.
That is the position in the present case.
A statutory representative acts for, and in the place of, a disqualified ward and without such valid representative on record the suit cannot legally proceed, just like in the case of a minor or a lunatic to represent whose interests no guardian is appointed.
If the intention of the legislature was only to provide for the appointment of a separate agent to help the Collector, who had a dual role to perform, it would have used the word " agent " in the section.
That apart, the Collector does not require the statutory power to appoint an agent to help him in the conduct of a suit; for, as a party to the suit, he can always appoint separate Advocates for the two wards.
That the word " representative" does not mean an agent but is intended to convey the idea of one representing a ward and as such brought on record in that capacity, is made clear by the other provisions of the Act wherein the same word appears.
Section 57 of the Act reads: " (1) Where any question arises as between two or more wards of such nature that an adjudication upon it by a civil court is expedient, it shall be lawful for the Court of Wards to appoint a representative on behalf of each ward.
The representative so appointed shall prepare a statement containing the point or points for determination and shall on behalf of the said wards file the statement in a civil court having jurisdiction in the form of a case for the opinion of the said court, 453 (2) The civil Court shall then proceed to hear and dispose of the case in the manner prescribed by the Code of Civil Procedure, 1908, for the hearing and disposal of suits.
(3) The case shall be conducted on behalf of the wards by their representatives appointed under subsection (1) of this section subject to the general control of the Court of Wards.
" It is manifest from this section that the duty of the representative under section 57 is not to act as a clerk or an assistant to the ward but to represent him in the proceedings.
He would be on record representing the ward and it is impossible to contend that the proceedings under section 57 of the Act can either be initiated or disposed of without a representative being appointed in that behalf.
Section 58 of the Act reads: "When it appears to the Court of Wards that any question or dispute arising between two or more wards is a fit subject for reference to arbitration, it may appoint a representative on behalf of each such ward and require the said representatives to submit the question or dispute to the arbitration of such person or persons as it may approve." Under this section also the appointment of a representative on behalf of each ward is a pre requisite for the initiation and conduct of arbitration proceedings.
Here also the representative is not appointed to assist the ward but to represent him in the proceedings.
It is a well known rule of construction that a similar meaning should be given to the word " representative " in the Act unless the context requires otherwise.
The object of the appointment of a representative under sections 56, 57 and 58 of the Act is the same and the same meaning should be given to that word, namely, that the representative appointed is one who represents the ward in the proceedings and is brought on record as such.
Laying emphasis on the word " conduct " or defend " in section 56 of the Act and on the omission of the word " compromise " therein, it is contended that the representative appointed thereunder has no 58 454 power to ' enter into a compromise.
The section does not, in my View, bear out this construction.
The first part of the section enjoins on the Court of Wards to appoint a representative to each of the wards and then the second part proceeds to state that such a representative should thereupon conduct or defend the case.
The later part of the section does not define the meaning of the word " representative " and limit its scope, but only brings out the idea that the suit shall not proceed till such a representative is appointed.
A person appointed to represent a disqualified person shall have all the powers of a party subject to the limitations imposed by relevant statutes and the only limitation imposed by section 56 of the Act is that the said representative is subject to the general control of the Court of Wards.
It follows that the representative can enter into a compromise subject, to the general control of the Court of Wards.
Assistance is sought to be derived by the Additional Solicitor General from decisions distinguishing between the powers of a Solicitor and a Counsel and holding that a Solicitor being only a representative cannot enter into a compromise without the consent of the client, while the latter being in charge of the entire litigation can do so.
In my view these decisions are based upon the peculiar characteristics of the two branches of the profession and cannot legitimately be invoked to construe the provisions of section 56 of the Act.
Nor the fact that the representative appointed under section 56 of the Act is subject to the general control of the, Court of Wards can be relied upon to subvert the operation of the section itself.
The question of control arises only after a representative is appointed and the appointing authority cannot obviously ignore its statutory duty and purport to exercise the duties of representatives in exercise of its power of general control over non existent representatives.
Assuming that the representative has no power to compromise the suit, it does not materially affect the ,question raised in this case.
In that view the authority empowered to do so has to effect the compromise, put the same in court through the representatives and 455 obtain a decree thereon.
But that does not dispense with the appointment of representatives to conduct and defend the suit, for without such representation the suit itself could not be proceeded with and a decree could not be obtained on the compromise.
Lastly, it is said that the provisions of the section are directory and noncompliance thereof would not affect the validity of the compromise decree, if in fact the compromise was effected bona fide by the competent authority.
The word " shall " in its ordinary import is "obligatory ", but there are many decisions wherein the courts under different situations construed the word to mean " may ".
The High Court in this case relied upon the observations of this Court in Jagan Nath vs Jaswant Singh (1) which run as follows: " It is one of the well recognized rules of interpretation that a provision like this should be held to be non mandatory unless non compliance with the provisions was visited with some penalty.
" A perusal of the judgment does not disclose that this Court has laid down any such inflexible rule of construction.
It was construing the word " shall " in section 82 of the Representation of the People Act, 1951, ' which lays down that a, petitioner shall join as respondent to his petition all the candidates who were duly nominated at the election other than himself.
Having regard to the other provisions of the Act, particularly to section 85 thereof, and the construction put upon a similar word in Order XXXIV, rule 1, of the Civil Procedure Code, this Court held that the word " shall " in section 82 was only directory.
This Court did not purport to lay down any broad proposition that whenever the word " shall " is used in a statute it should be construed as directory unless non compliance with the provision is made penal.
Nor the decision in The Queen vs Ingall (2) lays down any such wide rule of construction.
Under section 42 of Valuation (Metropolis) Act, 1869, provision is made for the performance of several acts within the times prescribed therein.
Every matter connected with the valuation must be transacted before the 31st of March, for the (1) ; , 901.
(2) , 207 456 list comes into force on the 6th April.
But there are other sections whereunder provision is made for preparing the valuation lists where there has been omission to make them according to the requirements of the Act.
The observance of times is not enforced by penalties.
The Court held that, notwithstanding the use of the word "shall " in section 42 of the Valuation (Metropolis) Act, 1869, the provision is only directory.
In construing the provisions in such a manner, Lush, J., observed: " We ought to look at the object which the legislature contemplated in passing the Valuation (Metropolis) Act, 1869 But we must, in construing the Act, strike a balance between the inconvenience of holding the list to be null and void and the risk of allowing injury to be done by the delay in making the list; the former seems to me the greater evil, and therefore in my opinion we ought to hold the list to be valid." This judgment is, therefore, an authority for the position that the intention of the legislature should be gathered from the object of the Act and also by striking a balance between the possible inconvenience that would be caused in accepting the one or other of the views.
The decision in Caldow vs Pixwell (1) deals with the provisions of section 29 of the Ecclesiastical Dilapidations Act, 1871, which says that within three calendar months after the avoidance of any benefice, the bishop shall direct the surveyor, who shall inspect the buildings of such benefice, and report to the bishop what sum, if any, is required to make good the dilapidations to which the late incumbent or his estate is liable.
It was held that the provisions as to the time within which the bishop is to direct the surveyor to inspect and report upon the buildings of a benefice after its avoidance is directory only, and not imperative; and that a direction to inspect and report made by a bishop more than three months after the avoidance of a benefice may be valid.
Denman, J., restates the following rules of guidance for construing such provisions: (i) The scope and object of a statute (1) (1876) a C.P.D. 562.
457 are the only guides in determining whether its pro.
visions are directory or imperative; (ii) in the absence of an express provision the intention of the legislature is to be ascertained by weighing the consequences of holding a statute to be directory or imperative; and (iii) the statute imposes a public duty upon the Bishop, and it does not create a power or privilege for the benefit of the new incumbent as a private person.
On those grounds, among others, the learned Judge held that the provision was only directory.
Venkatarama Ayyar, J., in Hari Vishnu Kamath vs Syed Ahmad Ishaque (1) made the following observ.
ations: " They (the rules) are well known, and there is no need to repeat them.
But they are all of them only aids for ascertaining the true intention of the legislature which is the determining factor, and that must ultimately depend on the context.
" In Craies on Statute Law, 5th Edn., the following passage appears, at p. 242: "No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience.
It is the duty of Courts of Justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.
" Bearing the aforesaid principles in mind let us look at the provisions of section 56 of the Act.
The object of section 56 of the Act is to prevent the anomaly of the same person occupying a dual role of plaintiff and defendant and to provide for an effective machinery to safeguard the interests of the wards who are placed under the supervision of the Court of Wards.
Should it be held that the appointment of a representative was at the discretion of the Court of Wards, the entire object of the section would be defeated.
A person for whose 'benefit the provision was conceived would be represented by the opposite party, a situation anomalous in the extreme.
On the other hand, no evil consequences can ordinarily be expected to flow if the provision be (1) ; , 1126.
458 construed as mandatory.
A statutory body like the Court of Wards can be relied upon to discharge the duties cast upon it by section 56 of the Act.
Even if it fails, the suit or the appeal, as the case may be, will be heard on merits or a fresh compromise may be effected after following the prescribed procedure.
The balance of convenience is on the side of the provision being construed as mandatory rather than as directory.
In the circumstances, I must hold that the intention of the legislature is to make the provision mandatory and therefore the word "shall" cannot be construed as "may" as contended by the learned Counsel for the respondent.
I cannot accept the contention of the learned Additional Solicitor General that even though section 56 is mandatory, the non compliance of the provisions of the section does not affect the validity of the compromise.
If, as I have held, the appeal could not be proceeded with without the statutory representative on record, the whole proceeding, including the passing of the compromise, without such representative, was null and void.
Before closing the discussion, a reference to the decision of the Judicial Committee in Braja Sunder Deb vs Rajendra Narayan Bhanj Deo (1) is necessary, as strong reliance is placed upon it in support of the contention that non compliance of the mandatory provision of section 56 would not affect the validity of the compromise decree.
There a suit between Raja Rajendra Narayan Bhanj Deo and Raja Braja Sunder Deb, who became the ward of the Court of Wards after the institution of the suit, was compromised.
The compromise petition was put in the Court and a decree was made thereon.
Before the High Court, for the first time, a technical objection was taken.
The Subordinate Judge decreed the suit in terms of the compromise and a formal decree dated December, 22, 1922, was drawn and in the cause title of the decree the manager of the Court of Wards was shown as second defendant while he should have been described as the representative of the first defendant.
But in (1) (1937) L.R. 65 I.A.57.
459 the body of the decree it was clearly mentioned that the manager of the Court of Wards had been substituted as guardian for the ward.
It was contended therein for the appellant that as the manager of the Court of Wards was made an additional defendant and not made a guardian ad litem of the appellant, the compromise decree in the suit was not binding on him.
The Judicial Committee negatived the contention and held that if the proper parties were on the record and were dealt with on the correct footing, the mere want of formality would not make void the bargain of the parties and the decree of the Court.
But in the present case, a mandatory provision had not been complied with and the suit proceeded with the Collector as both the plaintiff and defendant.
The wards were not represented by their separate representatives for the simple reason that no representatives were appointed.
There is no analogy between that decision and the present case.
For the aforesaid reasons I hold that the compromise decree was a nullity and the appeal must be deemed to be pending on the file of the High Court.
In this view, I am relieved of the duty of expressing my opinion on the other questions raised and seriously argued, namely, whether the Court of Wards has power to settle conflicting disputes between two wards and whether such a settlement would be a lawful agreement within the meaning of Order XXIII, rule 3 of the Code of Civil Procedure.
In the result, the order of the High Court is set aside and it is directed to dispose of the appeals in accordance with law.
The appellant will have his costs here and in the High Court.
By the Court: In accordance with the opinion of the majority, the appeals stand dismissed with costs.
| The respondent, proprietor of Ramnagar Estate, filed a suit against the appellant, proprietor of Ganeshpur Estate, for the recovery of certain properties.
The appellant filed a cross suit against the respondent.
During the pendency of the suits the appellant was declared to be a person of unsound mind and the Court of Wards assumed superintendence of her properties under the U. P. Court of Wards Act, and placed them in charge of the Deputy Commissioner of Barabanki.
Thereupon the cause titles on the suits were amended and in place of the appellant 's name the 'Deputy Commissioner, Barabanki I/C Court of Wards Ganeshpur Estate ' was substituted.
The Trial Court partly decreed the respondent 's suit and dismissed the appellant 's suit.
Both parties preferred appeals to the High Court.
While the appeals were pending the Court of Wards took over the Estate of the respondent also and placed it also in charge of the Deputy Commissioner, Barabanki.
The cause titles of the appeals were then amended and for the name of the respondent, the name 'Deputy Commissioner, Barabanki I/C Court of Wards Ramnagar Estate ' was substituted.
Thereafter, the Court of Wards passed a resolution settling the appeal on certain terms and under its instructions the lawyers for the parties presented petitions to the High Court for recording compromises in the appeals.
The High Court passed decrees in terms of the compromises.
Shortly afterwards the Court of Wards released the two estates.
Later, the appellant recovered from her affliction, and was declared to be of sound mind.
She presented two applications to the High Court alleging that the compromise decrees were a nullity and praying for a proper disposal of the appeals.
The High Court rejected the applications.
The appellant contended, that the compromise decrees were a nullity (i) as the Court of Wards had not complied with the mandatory provisions of section 56 of the Act, (ii) as there could not in law be a compromise unless there were two parties but in this case there was only one party the Deputy Commissioner, Barabanki and (iii) as the High Court failed to appoint a disinterested person.
as I guardian of the appellant who 432 was of unsound mind under 0.
XXXII of the Code of Civil Procedure.
Held, (per section K. Das and A. K. Sarkar, jj ), that the compromise decrees were not a nullity and were binding on the parties.
Section 56 of the Act which provided that when in a suit or proceeding two or more wards had conflicting interests, " the Court of Wards shall appoint for each such ward a representative " to conduct or defend the case on behalf of the ward whom he represented was clearly direct and the failure of the Court of Wards to observe the provisions thereof did not render the compromise decrees a nullity.
A directory provision did not give discretionary power to do or not to do the thing directed ; it was intended to be obeyed but a failure to obey it did not render a thing duly done in disobedience of it a nullity.
When the appeals were compromised, the compromise between the parties to the appeals, namely, the appellant and the respondent.
It was not a compromise which the Deputy Commissioner, Barabanki, made with himself though he repre sented both the parties.
There was nothing in the Act which indicated that the Court of Wards did not have the power of making a contract between two wards.
The Deputy Commissioner, Barabanki had been appointed the guardian of the appellant under the Act, and he was entitled to act as her guardian for the appeals under 0.
XXXII, r. 4 Of the Code.
The Court of Wards was different from a private guardian and could be trusted to be impartial.
The High Court was right in leaving the interests of the appellant in charge of the Court of Wards though it was also in charge of the interests of the respondent.
Per K. Subba Rao, J.
The compromise decrees were a nullity.
The provisions of section 56 of the Act were mandatory and a non compliance therewith vitiated the proceedings.
The inten tion of the legislature should be gathered from the object of the Act and from a consideration of the inconvenience that may be caused by accepting the one or the other of the views.
The object of section 56 was to prevent the anomaly of the same person representing two conflicting interests and to safeguard the interests of the wards placed under the supervision of the Court of Wards.
No inconvenience would result from holding the provisions to be mandatory.
The word " shall " in section 56 could not be read as " may ".
jagan Nath vs jaswant Singh; , , Queen vs Ingall, , Caldow vs Pixwell, , Hari Vishnu Kamath vs Syed Ahmad Ishaque, ; and Braja Sunder Deb vs Rajendra Narayan Bhanj Deo, (1937) L.R. 65 I.A. 57, referred to.
|
Appeals Nos. 2251 and 2252 of 1968.
Appeals by special leave from the judgment 'and order dated ' October 9, 1968 of the Madras High Court in O.S.A. Nos. 26 and 27 of 1968 and Civil Appeals Nos. 2305 and 2306 of 1968.
Appeals by special leave from the judgment and order dated April 12, 1968 of the Madras High Court in Applications Nos. 1760 and 2455 of 1967 in C.S. No. 118 of 1967.
M.C. Setalvad, V.P. Raman, D.N. Mishra and 1.
B. Dadachanji for the appellant (in C.As.
Nos. 2251 and 2252 of 1968) and respondent No. 1 (in C.As. 2305 and 2306 of 1968).
section Mohan Kumaramangalam, M.K. Ramamurthi, Shyamala Pappu and Vineet Kumar, for respondent No. 1 (in C.As.
Nos. 2251 and 2252 of 1968) and the appellant (in C.As. 2305 and 2306 of 1968).
Rameshwar Nath and Mahinder Narain, for respondent No. 2 (in all the appeals).
The Judgment of the Court was delivered by Hegde, J.
These are connected appeals.
They arise from Civil Suit No. 118 of 1967 on the original side of the High Court of Judicature at Madras.
Herein the essential facts are few and simple though the question of law that arises for decision is of considerable importance.
The suit has been brought by M/s. Tarapore & Co., Madras (hereinafter referred to as the "Indian Firm").
That firm had taken up on contract the work of excavation of a canal as a part the Farakka Barrage Project.
In that connection they entered into a contract with M/s. V/O Tractors Export, Moscow (which 922 will hereinafter be referred to as the "Russian Firm") for the supply of construction machinery such as Scrapers and Bulldozers.
In pursuance of that contract, the Indian Firm opened a confirmed, irrevocable and divisible letter of credit with the Bank of India, Limited for the entire value of the equipment i.e., Rs. 66,09,372 in favour of the Russian Firm negotiable through the Bank for Foreign Trade of the U.S.S.R., Moscow.
Under the said letter of credit the Bank of India was required to pay to the Russian Firm on production of the documents particularised in the letter of credit alongwith the drafts.
One of the conditions of the letter of credit was that 25 per cent of the amount should be paid on the presentation of the specified documents and the balance of 75 per cent to be paid one year from the date of the first payment.
The agreement entered into between the Bank of India and the Russian Firm under the letter of credit was "subject to the Uniform Customs and Practice for Documentary Credits (1962 Revision), International Chamber of Commerce Brochure No. 222".
Article 3 of the brochure says that: " 'An irrevocable credit is a definite undertaking on the part of an issuing bank and constitutes the engagement of that bank to the beneficiary or, as the case may be, to the beneficiary and bona fide holders of drafts drawn and/or documents presented thereunder, that the provisions for payment, acceptance or negotiation contained in the credit will be duly fulfilled, provided that all the terms and conditions of the credit are complied with.
An irrevocable credit may be advised to a beneficiary through another bank without engagement on the part of that other bank (the advising bank), but when an issuing bank authorises another bank to confirm its irrevocable credit and the latter does so, such confirmation constitutes a definite undertaking on the part of the confirming bank either that the provisions for payment or acceptance will be duly fulfilled or, in the case of a credit available by negotiation of drafts, that the confirming bank will negotiate drafts without recourse to drawer.
Such undertakings can neither be modified nor cancelled without the agreement of all concerned.
" Article 8 of the brochure says: "In the documentary credit operations all parties concerned deal in documents and not in goods.
923 Payment, acceptance or negotiation against documents which appear on their face to be in accordance with the terms and conditions of a credit by a bank authorised to do so, binds the party giving the authorisation to take up the documents and reimburse the bank which has effected the payment, acceptance or negotiation . " The only other Article in that brochure which is relevant for our present purpose is article 9 which reads: "Banks assume no liability or responsibility for the form, sufficiency, accuracy, genuineness, falsification or legal effect of any documents, or for the general and/or particular conditions stipulated in the documents or superimposed thereon; nor do they assume any liability or responsibility for the description, quantity, weight, quality, condition, packing, delivery, value or existence of the goods represented thereby, or for the good faith or acts and/or omissions, solvency, performance or standing of the consignor, the carriers or the insurers of the goods or any other person whomsoever.
" On the strength of the aforementioned.
contract, the Russian Firm supplied all the machinery it undertook to supply, by about the end of December 1965, which were duly taken possession of by the Indian Firm and put to work at Farakka Barrage Project.
They are still in the possession of the Indian Firm.
After the machinery was used for sometime, the Indian Firm complained to the Russian Firm that the performance of the machinery supplied by it was not as efficient as represented at the time of entering into the contract and consequently it had incurred and continues to incur considerable loss.
In that connection there was some correspondence between the Indian Firm and the Russian Firm.
Thereafter the Indian Firm instituted a suit on the original side of the High Court of Madras seeking an injunction restraining the Russian Firm from realizing the amount payable under the letter of credit.
During the pendency of that suit the parties arrived at an agreement on August 14, 1966 at Delhi (which shah be hereinafter referred to as the Delhi agreement).
The portion of that agreement which is relevant for our present purpose reads as follows: "Tarapore & Co., Madras, agree to withdraw immediately the court case filed by them against 'Tractoro export ' Moscow, in the Madras High Court.
Immediately on Tarapore withdrawing the case, V/O 'Tractoro export ' agree to instruct the Bank for 924 Foreign Trade of the USSR in Moscow, not to demand any further payment against L.C. established by Tarapore & Co., Madras, for a period of six months from the due dates in the first instance.
During this period both the parties shall do theft best to reach an amicable settlement.
In case the settlement between the two parties is not completed within this period of six months V/O Tractors export shall further extend the period of payment by further period of six months for the settlement to be completed.
Tarapore & Co. (shall authorise their Bank to keep the unpaid portions L.C. valid for the extended period as stated above.
" At this stage it may be mentioned that the Russian Firm had received from the Bank of India 25 per cent of the money payable under the letter of credit very soon after it supplied to the Indian Firm the machinery mentioned earlier.
In pursuance of the aforementioned agreement the Indian Firm withdrew the suit.
Thereafter there were attempts to settle the dispute.
In the meantime the Indian Rupee was devalued.
The contract between the Indian Firm and the Russian Firm contains the following term: "Payment for the delivered goods shall be made by the Buyers in Indian Rupee in accordance with the Trade Agreement between the USSR and India dated.
10th June, 1963.
All the prices are stated in Indian Rupees.
One Indian Rupee is equal to 0.186621 grammes of pure gold.
If the above gold content of Indian Rupee is changed the, prices and the amount of this Contract in Indian Rupee shall be revalued accordingly on the date of changing the gold parity of the Indian Rupee.
" This clause will be hereinafter referred to as the 'Gold Clause '.
In view of that clause, the price fixed for machinery supplied stood revised.
Consequently under the contract the Indian Firm had to pay to the Russian Firm an additional sum of about rupees twenty six lacs.
Accordingly the bankers of the Russian Firm called upon the Indian Firm to open an additional letter of credit for payment of the extra price payable under the contract.
They also intimated the Indian Firm that the extension of time for the payment of the price of the machinery supplied, agreed to at Delhi will be given effect to only after the Indian Firm arranges for the additional letter of credit asked for.
The Indian Firm objected to this demand as per its letter of 20th September, 1966.
The relevant portion of that letter reads: 925 "We are rather surprised to see this, because, by our arrangement dated the 14th Aug., 1966, at New Delhi you had agreed to give further time for the payments on the withdrawal of the Madras High Court case.
That was the only condition that was talked about and incorporated in our written agreement.
If you will be good enough to refer to the agreement dated the 14th Aug., 196 '6, you will find that we were obliged to withdraw the Madras suit pending talks of settlement and immediately on our withdrawing this suit, you agreed to instruct your Bankers not to demand any further payment under the letter of credit.
There is absolutely no reference in that agreement to our having to open any additional letter of credit in view of the devaluation of the Indian rupee . .
We would therefore request you to immediately instruct your Bankers in Moscow.
to advise our Bankers regarding the extension of time for payment under the letter of credit without any reference to any additional letters of credit in view of devaluation . .
Moreover, when the entire question is open for amicable settlement between us, it is not possible to determine what exactly will be the amount payable and unless that amount is known, it is not possible to open additional letters of credit to give effect to the gold clause . . " On November 1, 1966, the Russian Firm sent to the Indian Firm addendum No. 1 modifying the original contract in accordance with the gold clause.
The last clause of that addendum recited that "all ,other terms and conditions are as stated in the above mentioned contract" (original contract).
The Indian Firm objected to that addendum as well as to the demand for opening an additional letter of credit.
In that connection the Russian Firm wrote a letter to the Indian Firm on November 29, 1966.
As considerable arguments were advanced on the basis of that letter, we shall quote the relevant portion of that letter : " .
We confirm that you have signed with us the addendum No. 1 to our Contract No. 61/Tarapore 220/65 dated the 2nd Feb., 1965, at our request for the sole and specific purpose of satisfying our bankers.
We confirm further that this addendum will not in any manner prejudice the arrangement we have come to in Delhi on the 14th August, 1966, and is without prejudice to your claims and points of controversy regarding which we shall have further discussions with a view to reach an amicable settlement.
926 Under this addendum, the company will extend the letter of credit for one year and accept the drafts for the difference in value of 57.5 per cent due to devaluation.
The final amount payable will be in accordance with the settlement.
" Thereafter the Russian Firm appears to have drawn drafts on the Indian Firm for the excess amount payable under the gold clause.
For one reason or the other, no settlement as contemplated by the Delhi agreement was reached.
The Indian Firm complained that the Russian Firm never made any serious attempt to resolve the dispute whereas the Russian Firm alleged that it found no substance in the complaint made by the Indian Firm as regards the machinery supplied.
In the suit as brought, as well as in these appeals that controversy is not open for examination.
Suffice it to say that the parties did not amicably settle the dispute in question.
When the extended time granted under the Delhi agreement was about to come to a close, the Indian Firm instituted the suit from which these appeals have arisen.
In that suit the only substantive relief asked for is that the Bank of India as well as the Russian Firm ' should be restrained from taking any further steps in pursuance of the letter of credit opened by the Indian Firm in favour of the Russian Firm.
Therein temporary injunctions were asked for in the very terms in which the permanent injunctions were prayed for.
At a subsequent stage a further injunction restraining the Russian Firm from enforcing its right under the gold clause was also prayed for.
The Russian Firm opposed those applications but the trial judge granted the temporary injunctions asked for.
The Russian Firm took up the matter in appeal to the Appellate Bench of that High Court which reversed the order of the trial judge by its Order dated October 9, 1968 but it certified that they are fit cases for appeal to this Court.
When the applications in the appeals seeking interim orders came up for consideration by this Court the Russian Firm entered its caveat.
It not only opposed the interim reliefs prayed for, it further challenged the validity of the certificates granted by the High Court on the ground that the orders appealed against are not final orders within the meaning of article 133 of the Constitution.
Evidently as a matter of abundant caution, the Indian Firm had filed two separate applications seeking special leave to appeal against the orders of the Appellate Bench of the Madras High Court.
After hearing the parties this Court revoked the certificates granted holding that the orders appealed against are not final orders but at the same time granted special leave to the Indian Firm to appeal against the orders of the Madras High Court.
Civil Appeals Nos.
2051 and 2052 of 1968 are appeals filed by the Indian Firm.
Before the Appellate Bench of the High Court of Madras, the Indian Firm had objected to be maintainability of the appeals 927 filed by the Russian Firm on the ground that orders appealed against are not judgments within the meaning of el. 15 of the Letters Patent of the Madras High Court but that objection had been overruled by the Appellate Bench following the earlier decisions of that High Court.
That contention was again raised in the appeals filed by the Indian Firm in this Court.
To obviate any difficulty the Russian Firm applied to this Court for special leave to appeal against the interim orders passed by the trial judge.
We allowed those applications and consequently Civil Appeals Nos.
2305 and 2306 of 1968 came to be filed.
In view of the appeals filed by the Russian Firm in this Court against the interim orders made by the trial judge it is not necessary to decide whether the appeals filed by the Russian Firm before.
the Appellate Bench of the Madras High Court were maintainable? On that question, judicial opinion is.
sharply divided as could be seen from the decision of this Court in Asrumati Debi vs Kumar Rupendra Deb Rajkot and Ors.(x) Hence we shall, confine our attention to the question whether the temporary injunctions issued by the trial judge are sustainable? The scope of an irrevocable letter of credit is explained ' thus in Halsbury 's Laws of England (Vol.
34 paragraph 319 at p. 185): "It is often made a condition of a mercantile contract that the buyer shall pay for the goods by means of a confirmed credit, and it is then the duty of the buyer to procure Iris bank, known as the issuing or originating bank, to issue an irrevocable credit in favour of the seller by which the bank undertakes to the seller, either directly or through another bank in the seller 's country known as the correspondent or negotiating bank, to accept drafts drawn upon it for the price of the goods, against tender by the seller of the shipping documents.
The contractual relationship between the issuing bank and the buyer is defined by the terms of the agreement between them under which the letter opening the credit is issued; and ' as between the seller and the bank, the issue of the credit duly notified to the seller creates a new contractual nexus and renders the bank directly liable to the seller to pay the purchase price or to accept the bill of exchange upon tender of the documents.
The contract thus created between the seller and the bank is separate from, although ancillary to, the original contract between the buyer and.
the seller, by reason of the bank 's undertaking to the seller, which is absolute.
Thus the bank is not entitled to, (1) ; L6 Sup.
CI/69 8.
928 rely upon terms of the contract between the buyer and the seller which might permit the buyer to reject the :goods and to refuse payment therefore; and, conversely, the buyer is not entitled to an injunction restraining the seller from dealing with the letter of credit if the goods are defective.
" Chalmers on "Bills of Exchange" explains the legal position in these words: ' "The modern commercial credit serves to interpose between a buyer and seller a third person of unquestioned solvency, almost invariably a banker of international repute; the banker on the instructions of the buyer issues the letter of credit and thereby undertakes to act as paymaster upon the seller performing the conditions set out in it.
A letter of credit may be in any one of a number of specialised forms and contains the undertaking of the banker to honour all bills of exchange drawn thereunder.
It can hardly be over emphasised that the banker is not bound or entitled to honour such bills of exchange unless they, and such accompanying documents as may be required thereunder, are in exact compliance with the terms of the credit.
Such documents must be scrutinised with meticulous care, the maim de minimis non curat lex cannot be invoked where payment is made by later of credit.
If the seller has complied with the terms of the letter of credit, however, there is an absolute Obligation upon the banker to pay irrespective of any disputes there may be between the buyer and the seller as to whether the goods are up to contract or not: Similar are the views expressed in Practice and Law of Banking by H.P. Sheldon 'the Law of Bankers Commercial Credits" by H.C. Gutteridge "the Law Relating to Commercial Letters of Credit" by A.G. Davis "the Law Relating to Bankers ' Letters of Credit" by B.C. Mitra and in several other text books read to us by Mr. Mohan Kumaramangalam, learned Counsel for the Russian Firm.
The legal position as set out above was not controverted by Mr. M.C. Setalvad, learned Counsel for the Indian Firm.
So far as the Bank of India is concerned it admitted its liability to honour the letter of credit and expressed its willingness to abide by its terms.
It took the same position before the High The main grievance of the India Firm is that if the Russian Firm is allowed to take away the money secured to it by the letter ' 929 of credit, it cannot effectively enforce its claim arising from the breach of the contract it complains of.
It was urged on its behalf that the Russian Firm has no assets in this country and therefore any decree that it may be able to obtain cannot be executed.
Therefore, it was contended that the trial court was justified in issuing the impugned orders.
The allegation that Russian Firm has no assets in this country was not made in the pleadings.
That apart in the circumstances of this case that allegation has no relevance.
An irrevocable letter of credit has a definite implication.
It is a mechanism of great importance in international trade.
Any interference with that mechanism is bound to have serious repercussions on the international trade of this country.
Except under very exceptional circumstances, the Courts should not interfere with that mechanism.
For our present purpose we shall assume, without deciding, that the allegations made by the Indian Firm are true.
We shall further assume that the suit as brought is maintainable though Mr. Kumaramangalam seriously challenged its maintainability.
But yet, in our judgment, the learned trial judge was not justified in law in granting the temporary injunctions appealed against.
Ordinarily this Court does not interfere with interim orders.
But herein legal principles of great importance affecting international trade are involved.
If the orders impugned are allowed to stand they are bound to have their repercussion on our international trade.
We have earlier referred to several well known treatises on the subject.
Now we shall proceed to consider the decided eases bearing on the question under consideration.
A case somewhat similiar to the one before us came up for consideration before the Queens Bench Division in England in Hamzeh Malas and Sons vs British Imex Industries Ltd.(1) Therein the plaintiffs, a 10 Jordanian firm contracted to purchase from the defendants, a British firm, a large quantity of reinforced steel rods, to be delivered in two instalments.
Payment was to be effected by opening in favour of the defendants of two confirmed letters of credit with the Midland Bank Ltd., in, London, one in ' respect of each instalment.
The letters of credit were duly opened and the first was realized by the defendants on the delivery of ' t, he first instalment.
The plaintiffs complained that that instalment was defective and Sought an injunction to bat the defendants from realizing the second letter of credit.
Donovan 1.
, the trial judge refused the application.
In appeal Jenkins, Sellers and Pearce L.JJ.
confirmed the decision of the trial judge.
In the course of (1) 930 his judgment Jenkins L.J. who spoke for the Court observed thus: "We have been referred to a number of authorities, and it seems to be plain enough that the opening of a 'confirmed letter of credit constitutes a bargain between the banker and the vendor of the goods, which imposes upon the banker an absolute obligation to pay, irrespective of any dispute there may be between the parties as to whether the goods are up to contract or not.
An elaborate commercial system has been built up on the footing that bankers ' confirmed credits are of that character, and, in my judgment, it would be wrong for this Court in the present case to interfere with that established practice.
There is this to be remembered, too.
A vendor of goods selling against a confirmed letter of credit is selling under the assurance that nothing will prevent him from receiving the price.
That is of no mean advantage when goods manufactured in one country are being sold in another.
It is, furthermore, to be observed 'that vendors are often reselling goods bought from third parties.
When they are doing that, and when they are being paid by a confirmed letter of credit, their practice is and I think it was followed by the defendants in this case to finance the payments necessary to be made to their suppliers against the letter of credit.
That system of financing these operations, as I see it, would break down completely if a dispute as between the vendor and the purchaser was to have effect of 'freezing, ' if I may use that expression, the sum in respect of which the letter of credit was opened." In Urquhart Lindsay and Co. Ltd. vs Eastern Bank Ltd.(1) the King 's Bench held that the refusal of the defendants bank to take and_pay for the particular bills on presentation of the proper documents constituted a repudiation of the contract as a whole and that the plaintiffs were entitled to damages arising from such a breach.
It may be noted that in that case the price quoted in the invoices was objected to by the buyer and he had notified his objection to the bank.
But under the terms of the letter of credit the bank was required to make payments.
on the basis of the invoices tendered by the seller.
The Court held that if the buyers had an enforceable claim that adjustment must be made by way of refund by the seller and not by way of retention by the buyer.
(1) 931 Similar opinions have been expressed by the American Courts, The leading American case on the subject is Dulien Steel Products Inc., of Washington vs Bankers Trust Co.(1).
The facts of that case are as follows: The plaintiffs,.
Dulien Steel Products Inc., of Washington, contracted to sell steel scrap to the European Iron and Steel Community.
The transaction was put through M/s. Marco Polo Group Project, Ltd. who were entitled to commission for arranging the transaction.
For the payment of the commission to Marco Polo, plaintiffs procured an irrevocable letter of credit from Seattle First National Bank.
As desired by Marco Polo this letter of credit was opened in favour of one Sica.
The defendant bankers confirmed that letter of credit.
The credit stipulated for payment against (1 ) a receipt of Sica for the amount of the credit and (2 ) a notification of Seattle Bank to the defendants that the plaintiffs had negotiated documents evidencing the shipment of the goods.
Sica tendered the stipulated receipt and.
Seattle Bank informed the defendants that the Dulien had negotiated documentary drafts.
Meanwhile after further negotiations between the plaintiffs and the vendees the price of the goods sold was reduced and consequently the commission payable to Marco Polo stood reduced but the defendants were not informed of this fact.
Only after notifying the defendants about the negotiation of the drafts drawn under the contract of sale, the Seattle Bank informed the defendants about the changes underlying the transaction and asked them not to pay Sica the full amount of the credit.
The defendants were also informed that Sica was merely a nominee of Marco Polo and has no rights of his own to the sum of the credit.
Sica, however, claimed payment of the full amount of the credit.
The defendants asked further instructions from Seattle Bank but despite Seattle Bank 's instructions decided to comply with Sica 's request.
After informing Seattle Bank of their intention, they paid Sica the full amount of the credit.
Plaintiffs thereupon brought an action in the District Court of New York for the recovery of the moneys paid to Sica.
The action was dismissed by the trial court and that decision was affirmed by the Court of Appeals.
That decision establishes the well known principle that the letter of credit is independent of an unqualified by the contract of sale or underlying transaction.
The autonomy, of an irrevocable letter of, credit is entitled to protection.
As a rule courts refrain from interfering with that autonomy.
A half hearted attempt was made on behalf of the Indian Firm to persuade us not to apply the principles noticed above as in these appeals we are dealing with a complaint of fraud.
The facts pleaded in the plaint do not amount to a plea of fraud despite the (1) Federal Reporter 2nd Series 298, p. 836.
932 assertions of the Indian Firm that the Russian Firm was guilty of fraud.
Evidently with a view to steer clear of the well established legal position Mr. Setalvad, learned Counsel for the Indian Finn urged that the letter of credit was no more enforceable as the original contract stood modified as a result of the Delhi agreement and the Subsequent correspondence between the parties.
, It was urged that according to the modified contract the Indian Firm is only liable to pay the price that may be settled between the buyer and the seller.
This contention has not been taken either in the plaint or in the arguments before the trial judge or before the Appellate Bench.
It is taken for the first time in this Court.
This is not purely a legal contention.
The contention in question bears on the intention of the parties who entered into the agreement.
NO one could have known the intention better than the plaintiff who was a party to the contract.
If there was such an intention, the plaintiff would have certainly pleaded the same.
That apart, we are unable to accept the contention that either the Delhi agreement or the subsequent correspOndence between the parties modified, the original contract.
The Delhi agreement merely provided that the parties will try and settle the dispute out of court, if possible.
Much was made of the letter written, by the Russian Firm to the Indian Firm on 29 11 1965 wherein as seen earlier it was stated: "that the final amount payable will be in accordance with the settlement".
This letter has to be read along with the other letters that passed between the parties.
If so read, it is clear that the statement that the final payment will be made in accordance with the settlement is subject to the condition that the parties are able ,to arrive at a settlement.
Otherwise the parties continue to be bound by the original contract subject to the extension of the time granted under the Delhi agreement for the payment of the price.
As regards the additional payment demanded by the Russian Firm, there is no occasion for issuing any temporary injunction.
If the Indian Firm does not comply with that demand the law will take its course.
It is for that Firm to choose its course of action.
In the result we allow Civil Appeals Nos.
2305 and 2306 of 1968 with costs of the appellant therein and set aside the temporary injunctions granted by the trial judge.
The other appeals are dismissed with no order as to costs.
The costs to be paid by the Indian Company.
V.P.S. C.A. Nos.
2305 & 2306/68 allowed.
C.A.Nos.
2251 & 2252/68 dismissed.
| An Indian Firm (the appellant) entered into a contract with a Russian Firm (the respondent) for supply of certain machinery.
In pursuance of the contract, the appellant opened a confirmed, irrevocable and divisible letter of credit with a Bank in India for the entire value of the equipment.
The respondent supplied all the machinery and received 25% of the money payable under the letter of credit from the Bank.
Thereafter, the appellant complained that the performance of the machinery was not efficient and filed a suit seeking an injunction restraining the respondent from realising the balance of amount payable under the letter of credit.
The parties, however, entered into an agreement, by which it was agreed that the appellant would withdraw the suit, the respondent would not demand any payment under the letter of credit for 6 months, the parties would try to settle the dispute amicably during that period, 'and if no settlement was reached the period would be extended by a further period of 6 months.
The appellant withdrew its suit, but before any settlement was arrived at the Indian rupee was devalued, as a result of which the appellant had to pay an additional sum for the machinery supplied.
There was correspondence between the parties wherein the respondent insisted upon the appellant opening an additional letter of credit.
for the extra amount and the appellant objected to such a course.
The original dispute between the parties was not amicably settled and when the extended time under the agreement was about to expire, the appellant filed a suit on the original side of the High Court for restraining the Bank and the respondent from taking any steps in pursuance of the letter of credit.
A temporary injunction was also prayed for and it was granted, but the order was reversed by the Appellate Bench of the High Court.
In appeal to this Court, on the question whether the order of temporary injunction was sustainable, HELD: (1 ) An irrevocable letter of credit has a definite implication.
It is independent of and unqualified ' by the contract of sale or other underlying transactions.
It is a mechanism of great importance in international trade and any interference with that mechanism is bound to have serious repercussions on the international trade of this country.
The autonomy of an irrevocable letter of credit is entitled to protection 'and except in very exceptional circumstances courts should not interfere with that autonomy.
[929 B C; 931 G] Urquhart Lindsay and Co. Ltd. vs Eastern Bank Ltd., ; Hamzeh Malas and Sons vs British Imex Industries Ltd., and Dulien Steel Products Inc. o/Washington vs Bankers Trust Co., Fed.
Rep. 2nd Series, 298, p. 836, applied.
(2) The allegation of the appellant that the respondent had no assets in this Country and therefore if the respondent was allowed to take away 921 the money secured to it by the letter of credit the appellant could not effectively enforce its claim arising from the breach of the contract, was not made in the pleadings.
Nor do the facts pleaded in the plaint amount to a plea of fraud.
[929 B; 931 H] (3) It could not be contended that the letter of credit was not enforceable as the original contract was modified by the later agreement and subsequent correspondence between the parties.
The contention was not taken either in the plaint or in the High Court.
It is not a mere legal contention as it bears on the intention of parties.
Further, a perusal of the entire correspondence between the parties shows that in the absence of an amicable settlement, the parties continued to be bound by the original contract subject only to extension of time granted for payment of ' price.
[932 B D, F]
|
Civil Appeal No. 147 of 1974.
Appeal by special leave from the Judgment and Order dated 16 10 1973 of the Delhi High Court in LPA No. 238/72.
Dr. L. M. Singhvi and Mahinder Narain for the Appellant.
Lal Narain Sinha Att.
of India, B. P. Maheshwari, Suresh Sethi and section K. Bhattacharyya for Respondent No. 1.
Sardar Bahadur Saharya and Vishnu Bahadur Saharya for Respondent No. 2.
The Judgment of the Court was delivered by PATHAK, J.
Does the failure of the Standing Committee of the Delhi Municipal Corporation to consider under sub section
(3) of section 313, Delhi Municipal Corporation Act, 1957, an application for sanction to a lay out plan within the period specified in the subsection result in a "deemed" grant of the sanction? That is the principal question raised in this appeal by special leave which is directed against the judgment and order of the Delhi High Court allowing a Letters Patent Appeal and dismissing a writ petition filed by the appellant.
The appellant 's father, Amin Chand, owned a large parcel of land in village Chowkhandi near Tilak Nagar, Najafgarh Road, New Delhi.
The land was situated within the municipal limits of Delhi.
Amin Chand decided on developing the land as a residential colony named, after his father, the "Gangaram Vatika Colony".
He submitted a lay out plan for sanction under section 313 of the Delhi Municipal 1076 Corporation Act, 1957.
The plan was sanctioned by the Standing Committee of the Delhi Municipal Corporation by Resolution No. 17 passed on 10th December, 1958.
A revised lay out plan was approved by the Standing Committee by Resolution No. 871 dated 12th November, 1964.
Meanwhile, Amin Chand died, and the appellant, his son, thought it desirable that the lay out plan should include provision for the construction of a cinema.
Plots Nos.
33, 34 and 35 approved as separate units for the construction of residential houses in the lay out plan were selected as an amalgamated unit for the cinema.
An application dated 20th April, 1967, accompanied by a copy of the sanctioned lay out plan indicating the proposed changes, was filed by the appellant and he prayed for "an early sanction in terms of the provisions of section 313" of the Act.
The Town Planner of the Corporation informed him by letter dated 14th June, 1967 that his application did not fall within the purview of section 313 and that, moreover, the Master Plan did not envisage a cinema within a residential area, and therefore the request could not be considered.
Some correspondence followed between the appellant and the Corporation and concluded with a letter of 29th September, 1969 by the Corporation informing the appellant that his proposal could not be accepted because it would contravene the Master Plan of Delhi.
The Appellant filed a writ petition in the High Court of Delhi alleging that the application had not been considered by the Standing Committee, and as the period prescribed by the statute for doing so had expired the revised lay out plan must be treated as having been sanctioned.
Accordingly, he prayed that the respondents be restrained from interfering with his right to raise the construction including the cinema building in accordance with the revised lay out plan.
A learned Single Judge of the High Court while disposing of the writ petition directed the Corporation to treat the revised lay out plan as having been approved, but observed that the appellant would not be entitled to construct a cinema on the land unless due compliance had been effected with other provisions of the law and that it was open to the Standing Committee under sub section
(5) of section 313 to prohibit the construction of the cinema.
The Corporation preferred a Letters Patent Appeal, and a Division Bench of the High Court by its judgment and order dated 16th October, 1973 allowed the appeal, set aside the judgment and order of the learned Single Judge and dismissed the writ petition.
Section 313 of the Corporation Act consists of the following provisions: "313.
(1) Before utilising, selling or otherwise dealing with any land under section 312, the owner thereof shall send to the 1077 Commissioner a written application with a lay out plan of the land showing the following particulars, namely: (a) the plots into which the land is proposed to be divided for the erection of buildings thereon and the purpose or purposes for which such buildings are to be used; (b) the reservation or allotment of any site for any street, open space, park, recreation ground, school, market or any other public purpose; (c) the intended level, direction and width of street or streets, (d) the regular line of street or streets; (e) the arrangements to be made for levelling, paving, metalling, flagging, channelling, sewering, draining, conserving and lighting street or streets.
(2) The provisions of this Act and the bye laws made thereunder as to width of the public streets and the height of buildings abutting thereon, shall apply in the case of streets referred to in sub section (1) and all the particulars referred to in that sub section shall be subject to the sanction of the Standing Committee.
(3) Within sixty days after the receipt of any application under sub section (1) the Standing Committee shall either accord sanction to the lay out plan on such conditions as it may think fit or disallow it or ask for further information with respect to it.
(4) Such sanction shall be refused (a) if the particulars shown in the lay out plan would conflict with any arrangements which have been made or which are in the opinion of the Standing Committee likely to be made for carrying out any general scheme of development of Delhi whether contained in the master plan or a zonal development plan prepared for Delhi or not; or (b) if the said lay out plan does not conform to the provisions of this Act and bye laws made thereunder; or (c) if any street proposed in the plan is not designed so as to connect at one end with a street which is already open.
(5) No person shall utilise, sell or otherwise deal with any land or lay out or make any new street without or otherwise than in conformity with the orders of the Standing Committee 1078 and if further information is asked for, no step shall be taken to utilise, sell or otherwise deal with the land or to lay out or make the street until orders have been passed upon receipt of such information: Provided that the passing of such orders shall not be in any case delayed for more than sixty days after the Standing Committee has received the information which it considers necessary to enable it to deal with the said application.
(6) The lay out plan referred to earlier in this section shall, if so required by the Standing Committee, be prepared by a licensed town planner.
" The principal contention of the appellant before us is that on a true construction of section 313 it must be regarded that 'there is no restriction on his utilising, selling or otherwise dealing with the land in accordance with the lay out plan because the time prescribed by sub section
(3) for the Standing Committee to take action on the application had expired ', and reliance is place on Municipal Corporation of Delhi & ors.
vs Smt.
Kamala Bhandari & ors.(1).
It is necessary to examine for the purpose of this case what Parliament intended when enacting section 313.
Among the obligations vested in the Corporation under the Act are the construction, maintenance and improvement of streets.
Public streets vest in the Corporation and the Commissioner is enjoined to ensure their maintenance and repair.
Sections 313 to 316 related to private streets.
Section 312 provides that if the owner of any land utilises, sells, leases out or otherwise disposes of such land for the construction of buildings thereon, he must lay out and make a street or streets giving access to the plots in which the land is to be divided and connecting with an existing public or private street.
Sub section
(1) of section 313 obliges the owner of the land, before utilising, selling or otherwise dealing with the land under section 312 to apply to the Commissioner with a lay out plan of the land for sanction to the lay out plan.
The particulars detailed in sub section
(1) required in a lay out plan bear on the provisions of section 312.
The lay out plan will indicate in what manner the plots are proposed to be divided and the use to which they will be applied as well as the condition and direction of the streets, which provide access to them, so that it can be determined whether the private streets proposed in the lay out plan will adequately and sufficiently serve the buildings raised on the plots.
Sub section
(3) requires the Standing Committee, within sixty days after receipt of the application, either to accord sanction to the lay out plan or to disallow it 1079 or ask for further information in respect of it.
If further information is asked for, the ban on the owner utilising, selling or otherwise dealing with the land continues to operate until orders have been passed by the Standing Committee on receipt of the information.
That is sub section
Its proviso lays down that the passing of such orders shall not be in any case delayed for more than sixty days after the Standing Committee has received the information which it considers necessary.
Sub sections
(3) and (5) of section 313 prescribe a period within which the Standing Committee is expected to deal with the application made under sub section
But neither sub section declares that if the Standing Committee does not deal with the application within the prescribed period of sixty days it will be deemed that sanction has been accorded.
The statute merely requires the Standing Committee to consider the application within sixty days.
It stops short of indicating what will be the result if the Standing Committee fails to do so.
If it intended that the failure of the Standing Committee to deal with the matter within the prescribed period should imply a deemed sanction it would have said so.
They are two distinct things, the failure of the Standing Committee to deal with the application within sixty days and that the failure should give rise to a right in the applicant to claim that sanction has been accorded.
The second does not necessarily follow from the first.
A right created by legal fiction is ordinarily the product of express legislation.
It seems to us that when sub section
(3) declares that the Standing Committee shall within sixty days of receipt of the application deal with it, and when the proviso to sub section
(5) declares that the Standing Committee shall not in any case delay the passing of orders for more than sixty days the statute merely prescribes a standard of time within which it expects the Standing Committee to dispose of the matter.
It is a standard which the statute considers to be ' reasonable.
But non compliance does not result in a deemed sanction to the lay out plan.
Besides the absence of express language creating the legal consequence claimed by the appellant, there is nothing in the context to persuade us to accept the claim.
Parliament did not apparently view the matter of sanctioning a lay out plan as possessing the immediacy associated with the actual erection of a building or the execution of a work, where on the failure of the Commissioner to refuse sanction or to communicate such refusal within a specified period the applicant is entitled to commence and proceed with the building or work.
There is nothing in section 313 which has the contextual character of sections 336 and 337.
A perusal of sections 336 and 337 confirms that the cases covered there are controlled by a tightly woven time bound 1080 programme strongly indicating Parliament 's intent to regard the direction of a building and the execution of a work as matters of the utmost expedition and urgency.
Sub section
(3) of section 336 requires the Commissioner to communicate the sanction to the applicant and, where sanction is refused, to communicate the refusal with a statement of his reasons for such refusal.
If the period specified in sub section
(1) of section 337 has expired without the Commissioner refusing to sanction or, if refusing, without communicating the refusal, the applicant can commence and proceed with the projected building or work.
If it appears to the Commissioner that the site of the proposed building or work is likely to be affected by any scheme of acquisition of land for a public purpose or by any of the other public works mentioned in the proviso to sub section
(1) of section 337, he may withhold sanction of the proposed building or work, but even therefor not more than three months and the period specified in the sub section is computed as commencing from the expiry of such period.
That is not all.
On the sanction or deemed sanction, the applicant must under sub section
(3) of section 337 commence the erection of the building or execution of the work within one year.
Failure to do so will reduce him to the need for taking fresh steps for obtaining the sanction.
Then, before commencing the erection of the building or execution of the work with the period specified in sub section
(3), he is obliged, by virtue of sub section
(4) to give notice to the Commissioner of the proposed date of such commencement; and if the commencement does not take place within seven days fresh notice is necessary.
This network of provisions demonstrates the urgency attached by Parliament to the case where a building has to be erected or a work executed.
It is conspicuous by its absence in section 313.
We are, therefore, of opinion that if the Standing Committee does not consider the grant of sanction on the application made under sub section
(1) of section 313 within the specified period, it is not open to the applicant to regard the lay out plan as having been sanctioned.
We are unable to endorse the contrary view taken by the High Court in Municipal Corporation of Delhi 's case (supra) and overrule that decision.
The application made by the appellant for sanction to the lay out plan must be regarded as pending before the Standing Committee and must now be disposed of without any further delay.
The appellate Bench of the High Court has taken the view that the application does not lie under section 313.
As we have already observed, the purpose of filing a lay out plan under sub section
(1) of section 313 is related immediately to determining whether the access pro 1081 vided by the proposed private streets sufficiently and adequately serves the purpose enacted in section 312, and that is why the lay out plan must show the particulars specified in sub section
(1) of section 313.
Sanction to the lay out plan is also a preliminary step in the process of utilising the land for the construction of buildings thereon.
It is necessary to obtain that sanction because it is a pre requisite to the grant of sanction for the erection of the building or the execution of the work.
Under sub section
(1) of section 336, it is open to the Commissioner to refuse sanction of a building or work, in cases falling under section 312, if the lay out plans have not been sanctioned in accordance with section 313.
In our view, the appellant was right in making the application under section 313 regard to the amalgamation of the three plots for the proposed construction of a cinema building.
The Standing Committee has to determine whether the lay out plan now proposed can be sanctioned.
It may refuse the sanction by reason of sub section
(4) of section 313 on any of the ground specified therein.
That will be a matter for the Standing Committee to consider.
The Appellate Bench of the High Court has held that the appellant is not entitled to invoke sub section
(3) of section 313 for the grant of sanction to the revised lay out plan.
The High Court was apparently of the view that section 313 is attracted only when the owner of the land has not yet utilised or otherwise dealt with the land and the application for sanction envisaged under section 313 is the first application made for the purpose.
The High Court has referred to the circumstances that the owner had already commenced to act on the sanction granted to the original lay out plan.
We think that the limited view taken by the High Court is not justified.
It is open to the owner of land, after obtaining sanction to the original lay out plan, to apply afresh for sanction to a revised lay out plan.
Circumstances may arise, after the original sanction was granted, requiring the owner to incorporate changes in the original lay out plan.
In that event, when an application is made for the grant of sanction to a revised lay out plan it is, as it were, an application for the grant of a fresh sanction.
There is a fresh lay out plan for which sanction is applied.
It is differently constituted from the original lay out plan.
Such an application will fall under section 313.
It is no bar to making such an application and entertaining it that the owner has commenced to utilise the land or otherwise dealt with it.
Section 312 implies that the land must be utilised in accordance with the lay out plan.
If the land has been utilised to any degree by the appellant before 20th April, 1967, the utilisation must conform to the original sanctioned lay out plan.
No utilisation by the appellant in the manner subsequently proposed is 1082 permissible unless and until sanction is accorded to the revised lay out plan.
If such sanction is refused, it is the original sanction which will continue to operate, and the lay out plan to which such sanction was granted is the one that matters.
In the circumstances, we direct the first respondent, the Municipal Corporation of Delhi, to refer the application dated 20th April, 1967 along with the lay out plan accompanying it to its Standing Committee and the Standing Committee will dispose of the application expeditiously in accordance with law.
The appellant is not entitled to any further relief at this stage.
In the circumstances, the parties will bear their costs.
| The Delhi Municipal Corporation Act, 1957 by sub section (1) of section 313 obliges the owner of the land, before utilising, selling or otherwise dealing with the land under section 312 to apply to the Commissioner with a layout plan of the land for sanction to the lay out plan.
Sub section (3) of the said section requires the Standing Committee, within sixty days after receipt of the application, either to accord sanction to the lay out plan or to disallow it or ask for further information in respect of it.
If further information is asked for, the ban on the owner utilising, selling or otherwise dealing with the land continues to operate until orders have been passed by the Standing Committee on receipt of the information.
The appellant 's father who owned a large parcel of land situated within the Municipal limits, decided on developing the land as a residential colony and submitted a lay out plan for sanction under section 313, which was sanctioned by the Standing Committee on 10th December, 1958.
After the death of the appellant 's father, the appellant thought it desirable that the lay out plan should include provision for the construction of a cinema and he submitted an application dated 20th April, 1967 accompanied by a copy of the sanctioned lay out plan indicating the proposed changes, and prayed for an early sanction in terms of the provisions of section 313.
The Town Planner of the Corporation informed by letter, dated 14th June, 1967 that as the application did not fall within the purview of section 313, and that as the Master Plan did not envisage a cinema within a residential area, the request could not be considered.
Some correspondence followed and ultimately by letter, dated 29th September, 1969 the appellant was informed that his proposal could not be accepted.
Feeling aggrieved, the appellant filed a Writ Petition in the High Court alleging that the application had not been considered by the Standing Committee and as the period prescribed by the statute for doing so had expired the revised lay out plan must be treated as having been sanctioned.
The Single Judge of the High Court allowed the Writ Petition and directed the Corporation to treat the revised lay out plan as having been approved but observed that it was open to the Standing Committee under sub section (5) of section 313 to prohibit the construction of the cinema.
The respondent Corporation preferred a Letters Patent Appeal and the Division Bench of the High Court allowed the appeal, holding that the appellant was not entitled to invoke sub section (3) of section 313.
In the appeal to this Court, on the question, whether the failure of the Standing Committee of the Municipal Corporation to consider under sub section 1074 (3) of section 313 of the Act, an application for sanction to a lay out plan within the period specified in the sub section can result in a deemed grant of the sanction: ^ HELD: 1.
Merely because the Standing Committee does not consider the grant of sanction on the application made under sub section (1) of section 313 within the specified period, does not entitle the applicant to regard the lay out plan as having been sanctioned.
[1080F] 2.
The Municipal Corporation is obliged to refer the application dated 20th April, 1967 alongwith the lay out plan accompanying it, to its Standing Committee to dispose of the application expeditiously in accordance with law.
[1082B] 3.
Sub sections (3) and (5) of section 313 prescribe a period within which the Standing Committee is expected to deal with the application made under sub section (1).
But neither sub section declares that if the Standing Committee does not deal with the application within the prescribed period of sixty days it will be deemed that sanction has been accorded.
The statute merely requires the Standing Committee to consider the application within sixty days.
It stops short of indicating what will be the result if the Standing Committee fails to do so.
[1070C] 4.
If the Act intended that the failure of the Standing Committee to deal with the matter within the Prescribed period should imply a deemed sanction it would have said so.
[1070C] 5.
When sub section (3) declares that the Standing Committee shall within sixty days of receipt of the application deal with it, and when the proviso to sub section (5) declares that the Standing Committee shall not in any case delay the passing of orders for more than sixty days the statute merely prescribes a standard of time within which it expects the Standing Committee to dispose of the matter.
It is a standard which the statute considers to be reasonable.
But non compliance does not result in a deemed sanction to the lay out plan.
[1070E F] 6.
Parliament did not apparently view the matter of sanctioning a lay out plan as possessing the immediacy associated with the actual erection of a building or the execution of a work, where on the failure of the Commissioner to refuse sanction or to communicate such refusal within a specified period the applicant is entitled to commence and proceed with the building or work.
[1070G] 7.
There is nothing in section 313 which has the contextual character of sections 336 and 337.
A perusal of sections 336 and 337 confirms that the cases covered there are controlled by a tightly woven time bound programme strongly indicating Parliament 's intent to regard the erection of a building and the execution of a work as matters of the utmost expedition and urgency.
This network of provisions demonstrate the urgency attached by Parliament to the case where a building has to be erected or a work executed.
[1079H 1080A, E] 8.
Sanction to the lay out plan is also a preliminary step in the process of utilising the land for the construction of buildings thereon.
It is necessary to obtain that sanction because it is a pre requisite to the grant of sanction for the erection of the building or the execution of the work.
[1081B] 9.
The appellant was right in making the application under section 313 in regard to the amalgamation of the three plots for the proposed construction 1075 of a cinema building.
The Standing Committee has to determine whether the lay out plan now proposed can be sanctioned.
It may refuse the sanction by reason of sub section (4) of section 313 on any of the grounds specified therein.
That will be a matter for the Standing Committee to consider.
[1081C D] 10.
It is open to the owner of the land, after obtaining sanction to the original lay out plan to apply afresh for sanction to a revised lay out plan.
Circumstances may arise, after the original sanction was granted, requiring the owner to incorporate changes in the original lay out plan.
In that event, when an application is made for the grant of sanction to a revised lay out plan it is, as it were, an application for the grant of a fresh sanction.
There is a fresh lay out plan for which sanction is applied.
It is differently constituted from the original lay out plan.
Such an application would fall under section 313.
[1081F G] In the instant case the application made by the appellant for sanction to the lay out plan must be regarded as pending before the Standing Committee which must be disposed of without any further delay.
[1080G] Municipal Corporation of Delhi & ors.
versus Smt.
Kamla Bhandari & Ors.
I.L.R. (1970) 1, Delhi 66 disapproved.
|
vil Appeal No. 2086 (N) of 1978.
From the Judgment and Order dated 10.12.1976 of the Rajasthan High Court in D .B.
Civil Misc.
Appeal No. 73 of 1970.
C.M. Lodha and H.M. Singh for the Appellants.
B.R. Sabharwal, P.R. Ramasesh and H. Wahi for the Re spondents.
The Judgment of the Court was delivered by DUTT, J.
This appeal is directed against the judgment and decree of the Rajasthan High Court affirming the award made by the Motor Accident Claims Tribunal, Udaipur.
763 In the night between the 3rd and 4th December, 1966, Hari Singh, since deceased, the husband of the appellant No. 1 and the father of the appellant No. 2, hired an Ambassador car belonging to the.
Rajasthan Mahila Parishad for going to his native village at 'Kangeti in Madhya Pradesh from Udai pur in Rajasthan.
When the car had gone 21 miles from Udai pur, it collided with a truck coming from the opposite direction.
It skidded and hit against a tree.
As a result of the accident, Hari Singh died on the spot and one Shanker Lal who was also travelling in the same car and happened to be the friend of Hari Singh received some injuries.
At the time of his death, Hari Singh was only 25.
He left behind him his wife, the appellant No. 1 who was only 18 and the appellant No. 2, his daughter, then only a child.
The appellants filed a petition before the Motor Acci dent Claims Tribunal, Udaipur, claiming a sum of Rs. 1 lac as compensation.
The Tribunal came to the finding that the accident which resulted in the death of Hari Singh was due to the rash and negligent driving of the car.
The Tribunal disposed of the issue as to the claim of the appellants for compensation of Rs. 1 lac as follows: "Claimants of Case No. 3 of 1967 have claimed compensation of Rs. 1 lac which appears to be excessive.
In my opinion an amount of Rs. 10,000 would be adequate.
The issue is decided accordingly.
" The Tribunal has not given any reason why the claim of the appellants for compensation of Rs. 1 lac could not be accepted.
At this stage, it may be stated that the case of the Insurance Company which was the opposite party No. 3 before the Tribunal was that its liability was only up to a sum of Rs.4,000.
Issue No. 7 that was framed by the Tribunal relating to the liability of the Insurance Company is ex tracted below: "7.
Whether the liability of opposite party No. 3 cannot exceed Rs.4,000 in each case.
" The finding of the Tribunal on Issue No. 7 is as follows: "The learned counsel for the claimants conced ed that the liability of the Insurance Company could not exceed 764 Rs.4,000 in each case.
Issue is accordingly decided in favour of the Opposite Party No.3.
" Upon the said findings, the Tribunal made an award for Rs. 10,000 in favour of the appellants against the opposite parties including the Rajasthan Mahila Parishad and the driver of the truck assessing the liability of the Insurance Company to the extent of Rs.4,000 only.
Being aggrieved by the award of the Tribunal, the appel lants preferred an appeal to the Rajasthan High Court chal lenging only the adequacy of the amount of compensation as awarded by the Tribunal.
A cross objection was also filed by the Rajasthan Mahila Parishad, the owner of the car.
The High Court, as stated already, affirmed the award and dis missed the appeal and the cross objection.
Hence this appeal by special leave.
The first point that has been urged by Mr. Lodha, learned counsel appearing on behalf of the appellants, is that the High Court was not justified in affirming the award of the Tribunal for Rs. 10,000 only as compensation.
It appears from the evidence of the appellant No. 1 that the father of the deceased had a dairy farm, a poultry farm, a flour mill and an agricultural farm.
The deceased used to look after the business and his monthly income was about Rs. 1,000 and that out of the said income, about Rs.700 used to be spent and the total saving was only Rs.300 a month.
As against this evidence, no evidence was led by the respond ents regarding the income of the deceased.
The High Court, in affirming the award of the Tribunal as to the quantum of compensation observed as follows: "It appears to us from the evidence so led by the claimants that Hari Singh at the time of his death was in fact a student and may be that whenever he could spare time, he looked after the various business activities of his father which according to Rajendra Kumari are still running.
He had devoted himself to the family business and had no prospects whatever dependent upon education.
While estimating the benefits derived from the various business activities one cannot lose sight of the con tingencies of losses and fluctuations in income that occur in such types of business.
We do realise that the loss of a husband to a young Rajput girl is something which no amount of money can compensate, yet in the circum stances of the case, we do not find 765 that the amount of compensation fixed by the Tribunal was too high or too low.
We feel ' that it represents the just and proper compen sation.
" We are unable to understand the reasons given by the High Court in finding that the amount of compensation as awarded by the Tribunal was quite adequate.
The High Court has not disbelieved the evidence of the appellant No. 1 that her husband had an income of Rs. 1,000 a month.
It is true that Hari Singh was a student at the time of his death, but he was also looking after the business of his father and earning a sum of Rs. 1,000 a month.
There is no reason to disbelieve the evidence of the appellant No. 1 about the income of Hari Singh.
Even at the modest computation, the contribution of Hari Singh towards his family could not he less than Rs.500 per month, that is, Rs.6,000 per year.
Taking the normal span of life to be 60 years, Hari Singh would have lived for another 35 years.
It is apparent that the appellants have been deprived of more than a lac of rupees and, accordingly, their claim for Rs. 1 lac on account of compensation was quite reasonable.
Both the Tribunal and the High Court were not justified in assessing the amount of compensation pay able to the appellants at Rs. 10,000 only.
The next question is as to the liability of the Insur ance Company, the respondent No. 4 herein.
It has been already noticed that the appellants conceded before the Tribunal that the liability of the Insurance Company did not exceed the sum of Rs.4, '000.
Indeed, as the law stood at the material time, the maximum liability of the Insurance Compa ny in such a case was only to the tune of Rs.4,000.
In the appeal before the High Court, the appellants did not chal lenge the finding of the Tribunal that the statutory liabil ity of the Insurance Company was Rs.4,000 Only as conceded to by the appellants.
For the first time in this Court, it is submitted that the respondent No. 4 is liable for the entire amount of compensation.
It is urged by Mr. Lodha appearing for the appellants that it was incumbent upon the respondent No. 4 to file before the Tribunal the policy of Insurance in order to show that apart from the statutory liability up to Rs.4,000, the respondent No. 4 had no fur ther liability under the policy in excess of the statutory liability.
In support of the contention, much reliance has been placed by the learned counsel on a decision of this Court in National Insurance Co. Ltd. vs Jugal Kishore & Ors.
, In that case, it has been observed that where the Insurance Company concerned wishes to take a defence in a claim petition that its liability 766 is not in excess of the statutory liability, it.
should ' file a copy of the Insurance policy along with its defence.
This decision, in our opinion, is not applicable to the facts of the instant case.
It has been already noticed that before the Tribunal the appellants had categorically admit ted that the liability of the Insurance Company extended to Rs.4,000 only.
In the circumstances, we do not think that it was incumbent upon the Insurance Company to file the policy.
The contention made on behalf of the appellants is, accordingly, rejected.
In the result, we direct that the appellants are enti tled to a sum of Rs. 1 lac (Rupees one lac only) on account of compensation.
Out of the said sum, the Insurance Company, the respondent No. 4, is liable to pay Rs.4,000 only and the respondent Nos. 1, 2 and 3 including the Rajasthan Mahila Parishad are jointly and severally liable to pay to the appellants the remaining amount.
The respondent shall depos it the decretal amount to the extent of their respective liabilities in the Motor Accident Claims Tribunal, Udaipur, within two months .from date; in default, the decretal amount or so much thereof as will remain outstanding will bear interest at twelve per cent per annum till realisation.
The appeal is allowed.
The judgment and decree of the High Court are modified to the extent indicated above, There will be no order as to costs.
G.N. Appeal al lowed.
| Appellants 1 and 2 are the wife and daughter respective ly of the deceased who died in a road accident, while trav elling in a hired car, which collided with a truck.
He died on the spot.
At the time of his death he was 25.
Appellants filed a petition before the Motor Accident Claims Tribunal claiming a compensation of Rs.1 lac.
The Tribunal 's finding was that the accident was due to rash and negligent driving of the car.
Without giving reasons, the Tribunal awarded only Rs.10,000 against the owner of the car and the truck driver, and also assessed the liability of the Insurance Company to the extent of Rs.4,000.
Against the award the appellants filed an appeal to the High Court challenging the adequacy of the compensation awarded.
The owner of the car filed a cross objection.
The High Court affirmed the award and dismissed the appeal, as also the cross objection, stating that the compensation awarded was just and proper.
This appeal, by special leave, is against the High Court 's judgment affirming the Tribunal 's award.
On behalf of the appellants, it was contended that High Court was not justified in affirming the Tribunal 's award of only Rs. 10,000 as compensation.
Allowing the appeal, HELD: 1.
The appellants are entitled to a sum of Rs.l lac on account of compensation.
Out of this amount the Insurance Company, i.e., Respondent No. 4 is liable to pay Rs.4,000 and the other respondents are jointly and severally liable to pay to the appellants the remaining amount.
[766C] 762 2.
It is true that the deceased was a student at the time of his death, but he was also looking after the busi ness of his father and earning about Rs.l,O00 a month.
Even at the modest computation, the contribution of the deceased towards his family could not be less than Rs.500 per month, i.e. Rs.6,000 per year.
Taking the normal span of life to be 60 years, he would have lived for another 35 years.
It is apparent that the appellants have been deprived of more than a lac of rupees and, accordingly their Claim for Rs.l lac on account of compensation was quite reasonable.
Both the Tribunal and the High Court were not justified in assessing the amount of compensation payable to the appellants at Rs. 10,000 only.
[765B D] 3.
As the law stood at the material time, the maximum liability of the Insurance Company in such a case was only to the tune of Rs.4,000.
In the appeal before the High Court, the appellants did not challenge the finding of the Tribunal that the statutory liability of the Insurance Company was Rs.4,000 only as conceded to by the appellants themselves.
In the circumstances, it Was not incumbent upon the Insurance Company to file the policy.
[766A B] National Insurance Co. Ltd. vs Jugal Kishore & Ors., , distinguished.
[This Court directed that the decretal amount should be paid within two mouths and in case of default, it will bear interest at the rate of 12% per annum till realisation.] [766D]
|
Appeal No. 563 of 1967.
Appeal from the judgment and order dated September 15, 16, 19, 1966 of the Bombay High Court in Civil Reference No. 8 of 1964.
G.B. Pai, Bhuvanesh Kumari and O. C. Mathur, for the appellants.
L. M. Singhvi, Ram Panjawani and section P. Nayar, for the respondent.
The Judgment of the Court was delivered by P.Jaganmohan Reddy, J.
In exercise of the powers under Sec.
96(1)(b)of the (hereinafter referred to as 'the Act ') relating to "the procedure to be followed in proceedings before such Courts and the execution of orders made by such Courts", the Government of Bombay made the following Rule; "17.
Limitation: (1) Every application to the Court shall be brought within twelve months from the date on which the cause of action arose or as the case may be the claim became due : Provided that the Court may entertain an application after the said period of twelve months if it is satisfied that the applicant had sufficient reasons for not making the application within the said period.
870 (2)Subject as aforesaid the provisions of and III of the Indian Limitation Act, 1908 (IX of (1908), shall so far as may be appli ed to very such application", The vires of this Rule was challenged by the Employees State Insurance Corporation (hereinafter referred to as 'the Corporation) when it filed an application on 7th October 1963 against the Appellant in the Employees Insurance Court (hereinafter referred to as the Insurance Court ') claiming payment of the contributions due from it for the period 1st September 1957 to 31st July 1963.
In those proceedings the Appellant had 'taken the plea that the application was barred under Rule 17 as it was not presented within twelve months from the date when the cause of action arose or as the case may be when the amount became due.
As the plea raised before ' it was important the Insurance Court made a reference under Section 81 of the Act on the following question for the decision of the High Court of Bombay : (1)Whether rule 17 of the Employees ' State Insurance Rule is ultra vires the rule making power of the State Government under Sec.
96(1) of the ? (2)If yes, what, if any, limitation applies to appli cationsfiled by the Corporation to the Employees ' In surance Court ? The High Court of Bombay having considered the several cases and the contentions and submissions mad .
before it held that the clear and unambiguous terms of section 96 (1) (b) exclude the grant of the power to any State Government to make a rule prescribing a period of limitation on claims ennumerated in Sec.75(2).
It was lb further of the view that where two interpretations of the terms of Sec.
96(1) (b) were possible that interpretation should be accepted which excludes the grant of such a power, because it appeared to it clear from the scheme of the Act and the provisos thereof that the legislature did not intend to confer such power on the State Governments.
It therefore answered the first question in affirmative namely that Rule 17 is ultra vires the rule making power of the State Government under See.
96(1) (b) of the Act.
On the second question it held that an application filed in a Court before 1 1 1964 for relief under Sec.
75 of the Act was not subject to any period of limitation, but an application filed on or after 1 1 64, would, however, be covered by article 137 of the Limitation Act of 1963 which provides a limitation of 3 years from the date when the right to apply accrues.
This appeal has been filed against that decision by certificate under article 1 3 3 (1) (c) of the Constitution.
871 This question has been the subject matter of the decisions in Employees State Insurance Corporation vs Madhya Pradesh Government & Ors.
(1) M/s Solar Works, Madras vs Employees State Insurance cc Corporation, Madras & Anr.(2) M/s. A. K. Brothers vs Employees ' State Insurance Corporation, ( 3 ) United India Timber Works, Yamunanagar & Anr.
vs Employees State Insurance Corporation, Amritsar, ( 4 ) Roshan Industries Pvt.
Ltd. Yamunagar vs Employees ' State Insurance Corporation(3), E.S.L.C. Hyderabad vs A. P. State Electricity Board, Hyderabad (6) .
All the High Courts in these cases except that of Allahabad held that the rule is ultra vires the powers conferred on the State Government under Sec.
9 6 ( 1 ) (b) inasmuch as it is not empowered to make rules prescribing periods of limitation for applications to be filed before the Court, though in Madhya Pradesh case it was also said that "Even if it be taken that clause (b) of Sec.
96(1), as it is worded, is wide enough to cover a rule of limitation, that cannot authorize the Government to frame a rule regulating limitation for the recovery of contributions. . . because according to it the validity of the rule does not necessarily depend on the ascertainment of "whether it confers rights or merely regulates procedure, but by determining whether it is in conformity with the powers conferred by the statute and whether it is consistent with the provisions of the statute".
These decisions also held that the scheme of the Act was such that the Legislature did not and could not have intended to confer any power upon the State Government to make rules prescribing a period of limitation for application under Sec.
75(2).
The question which directly confronts us is whether the power to prescribe periods of limitation for initiating proceedings before the Court is a part of, and is included, in the power to prescribe "the procedure to be followed in proceedings before such Courts".
The answer to this question would involve the determination of the further question whether the law relating to limitation is pro cedural or substantive or partly procedural and partly substantive.
If it is procedural law does it make any difference whether it relates to the time of filing application for initiation of proceedings before the Court or whether it relates to interlocutory applications or other statements filed before it after the initiation of such pro ceedings,.
The contention on behalf of the Appellant is that the law relating to limitation is merely procedural, as such it makes (1) AIR 1964 (Vol.
51) Madhya Pradesh 75.
(2) AIR 1964 (Vol.
51) Madras 376.
(3) AIR 1965 (Vol.
52) Allahabad 410.
(4) AIR 1967 (Vol. 54) Punjab 166 (FB).
(5) AIR 1968 (Vol.
55) Punjab 56 (SB).
(6) 1970 Labour & Industrial cases 921.
872 no difference whether it relates to the time of filing an application or it deals with the time for filing interlocutory applications or other statements.
There is also it is submitted no indication in the scheme of the Act that it is otherwise or that there is any impediment for the Government to prescribe under the rule making authority the period of limitation for applications under Sec.
75 (2).
Before we consider the scheme of the Act it may be necessary to examine the scope and ambit of the terms 'procedure ' as used in Sec. 96(1)(b).
The topic of procedure has been the subject of academic de bate and scrutiny as well as of judicial decisions over a long period but in spite of it, it has defied the formulation of a logical test or definition which enables us, to determine and demarcate the bounds where procedural law ends and substantive law begins, or in other words it hardly facilitates us in distinguishing in a given case whether the subject of controversy concerns procedural law or substantive law.
The reason for this appears to be obvious, because substantive law deals with right and is fundamental while procedure is concerned with legal process involving actions and remedies, which Salmond defines "as that branch of law which governs the process of litigation", or to put it in another way, substantive law is that which we enforce while procedure deals with rules by which we enforce it.
We are tempted in this regard to cite a picturesque aphorism of Therman Arnold when he says "Substantive law is canonised procedure.
Procedure is unfrocked substantive law(1)".
The manner of this approach may be open to the criticism of having over simplified the distinction, but nonetheless this will ,enable us to grasp the essential requisites of each of the concepts which at any rate "has been found to be a workable concept to point out the real and valid difference between the rules in which stability is of prime importance and those in which flexibility is a more important value (2 ) ".
Keeping these basic assumptions in view it will be appropriate to examine whether the topic of limitation belongs to the Branch of procedural law or is outside it.
if it is a part of the procedure whether the entire topic is covered by it or only a part of it and if so what part of it and the tests for ascertaining them.
The law of limitation appertains to remedies because the rule is that claims in respect of rights cannot be entertained if not commenced within the time prescribed by the statute in respect of that right.
Apart from Legislative action prescribing the time, there is no period of limitation recognised under the general law and therefore any time fixed by the statute is neces (1) XLV Harvard Law Journal 617 & 645.
(2) American Juris prudence Vol.
51 (Second Edn.) 605.
873 sarily to be arbitrary.
A, statute prescribing limitation however does not confer a right of action nor speaking generally does it confer on a person a right to relief which has been barred by eflux of time prescribed by the law.
The necessity for enacting periods of limitation is to ensure that actions are commenced within a particular period, firstly to assure the availability of evidence documentary as well as oral to enable the defendant to contest the claim against him; secondly to give effect to the principle that law does not assist a person who is inactive and sleeps over his lights by allowing them when challenged or disputed to remain dormant, without asserting them in a court of law.
The, principle which forms the basis of this rule is expressed in the maxim vigilantibus, non dormientibus, jura subveniunt (the laws give help to those who are watchful and not to those who sleep).
Therefore the, object of the statutes of limitations is to compel a person to exercise his right to action within a reasonable time as also to dis courage and suppress stale, fake or fraudulent claims.
While this is so there are two aspects of the statutes of limitation the one concerns the extinguishment of the right if a claim or action is not commenced with a particular time and the other merely bars the claim without affecting the right which either remains merely as a moral obligation or can be availed of to furnish the consideration for a fresh enforceable obligation.
Where a statute prescribing the limitation extinguishes the right, it affects substantive rights while that which purely pertains to the commencement of action without touching the right is said to be procedural.
According to Salmond the law of procedure is that branch of the law of actions which governs the process of litigation, both Civil and Criminal.
"All the residue" he says "is substantive law, and relates not to the process of litigation but to its purposes and sub , ject matter".
It may be stated that much water has flown under the bridges since the original English theory justifying a statute of limitation on the ground that a debt long overdue was pre sumed to have been paid and discharged or that such statutes are merely procedural.
Historically there was a period when substantive law was inextricably intermixed with procedure; at a later period procedural law seems to have reigned supreme when forms of action ruled.
In the words of Maine "So great is the ascendancy of the Law of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being gradually secreted in the interstices of procedure()".
Even after the forms of action were abolished Maitland in his Equity was still able to say "The forms of action we have buried but they still rule us from their graves", to which Salmond added "In their life they were powers of evil and even in death they have not wholly ceased from troubling(2)".
Oliver Wendal Holmes had however observed in "The (1) Maine, Early Law and Custom 389.
(2) 874 Common Law", "wherever we trace a leading doctrine of sub stantive law far enough back, we are likely to find some forgotten circumstance of procedure at its source".
It does not therefore appear that the statement that substantive law determ.nes rights and procedural law deals with remedies is wholly valid, for neither the entire law of remedies belongs to procedure nor are rights merely confined to substantive law, because as already noticed rights are hidden even "in the interstices of procedure".
There is therefore no clear cut division between the two.
A large number of decisions have been referred before us both English and Indian some of antiquity in support of the proposition that the law prescribing the time within which an action can be commenced is purely procedural and therefore when a statute empowers the Govt.
to make rules in respect of procedure it confers upon it also the rights to prescribe limitation.
To this end have been cited the cases of Manoel Francisco Lopez & Ors.
vs Lieut.
Godolnhon James Burslem(l), and Ruckmaboye vs Lulloobhoy Mottichund(2).
An examination of these cases would.
show that what was being considered was whether the law of limitation was part of the lex fori which foreigners and persons not domiciled in the country have to follow if they have to have recourse to actions in that country.
In the latter case the Privy Council observed at page 265 "The arguments in support of the plea are founded upon the legal character of a law of limitation or prescription, and it is insisted, and the Committee are of opinion, correctly insisted, that such legal character of 'the law of prescription has been so much considered and di cussed among writers upon jurisprudence, and has been so often the subject of legal decision in the courts of law of this and other countries, that it is no longer subject to doubt and uncertainty.
In truth, it has become almost an axiom in jurisprudence, that is law of prescription, or law of limitation, which is meant by that denomination, is a law relating to procedure having reference only to the lex fori".
These observations as well as those in the earlier case must be understood in the light of the principles governing conflict of laws.
What was in fact being examined was whether they are part of the procedural law in the sense that the Municipal laws will be applicable on the question of limitation for the commencement of actions because if limitation was purely a question of substantive law that would be governed by the law of the country of the (2) (1849 54)_(V_Moore Indian Appeals 234).
875 domicile of the person who is having recourse to the Courts of the other country.
In other words the substantive rights of the parties to an action are governed by a foreign law while all matters pertaining to procedure are governed exclusively by the lex fori.
The cases cited at the Bar, of the various High Courts in this country show that they were construing the rules prescribing limitation in respect of proceedings in Court i.e. proceedings afterthe institution of the suit or filing of the Appeal.
In Sennimalai Goundan vs Palani Goundan & 4nr.(1), the question was.
whether &,,a High Court by framing a rule under Sec.
122 Civil Procedure Code could make Section 5 of the Limitation Act applicable to applications under sub rule (2) of Rule 13 of Order IX.
While holding that it could, Coutts Trotter, J as he then was made this pertinent observation : "Whatever may be the case of the statute prescribing say 3 years for an action to be brought I am quite clear that the Articles in the Act limiting applications of this nature which are almost entirely interlocutory deal clearly with matters of procedure. .
This was also the view of the Full Bench in Krishnamachariar vs Srirangammal & Ors.(2), which was followed by the Bombay High Court in Bandredas vs Thakurdev ( 3 ).
It was contended in Velu Pillai vs Sevuga Perumal Pillai(4), that rule 41 (A) (2) of the Appellate side Rules of the Madras High Court providing for the presentation of a petition to the High Court within 90 days from the date of the order passed in an execution proceedings was ultra vires, because the High Courts were not entitled by rules to regulate or enlarge the periods in the Limitation Act in respect of the proceedings to which the Limitation, Act apply 'This contention was negatived on the ground that such a powerwas inherent in Sec.
122 of the Civil Procedure Code.
The argument of the petitioner that he had a vested right to go up in revision at any time and that the decision of the Full Bench in Krishnamachariar vs Srirangammal & Ors.
(2 ) does not affect his right, was rejected on the ground that Sec.
122 Civil Procedure Code empowers the High Courts to make rules regu lating their own procedure and the procedure of the subordinate Courts subject to their superintendence.
There were earlier decisions of the Allahabad High Court and Lahore High Court as also a decision of the Bombay High Court rendered under Sec.
602 of the old Civil Procedure Code 1.
AIR 1917 Madras 957.
(2) ILR 47 Madras 824.
(3) ILR 53 Bombay 453.
(4) AIR 1958 Madras 392.
876 referred to by Krishnan, J., in his referring order in Krishnamachariar 's case which took the view that the High Court has riot the power by rule under Sec.
122 or the corresponding Sec.
602 of the old Civil Procedure Code to make rules for altering the period of limitation prescribed by the Indian Limitation Act see Narsingh Sahai vs Sheo Prasad(l), and Chunilal Jethabhai vs Dahvabhai Amulakh(2).
Again a similar question arose as to whether clause 27 of the Letters Patent of the Lahore High Court (there are similar clauses in the Letters Patent of the other High Courts) could validly empower the making of rule 4 prescribing a period for filing an appeal under Clause 10 of the Letters Patent.
Clause 27 of the Letters Patent empowered the High Court from time to time to make rules and orders for regulating the practice of the Court etc.
This Court in Union of India vs Ram Kanwar & Ors.
( 3 ) , approved the view of a Full Bench of the Punjab High Court in Punjab Cooperative Bank Ltd. vs Official Liquidators Punjab Cotton Press Company Ltd. (in liquidation) (4), where it was held that rule 4 is a special law within the meaning of Sec. 29 (2) of the Limitation Act.
Subba Rao, J., as he then was said at page 320 "Rule 4 is made by the High Court in exercise of the legislative power conferred upon the said High 'Court under cl. 27 of the Letters Patent.
As the said rule is a law made in respect of special cases covered by it, it would certainly be a special law within the meaning of section 29(2) of the Limitation Act".
In that case no question was raised as to whether rule 4 was dealing with a procedural matter or dealt with a substantive right.
These cases are of little assistance and if at all they lay down the principle that interlocutory proceedings before the Court do not deal with substantive rights and are concerned with mere procedure and can be dealt with by rules made under the powers conferred on the High Court to regulate the procedure.
It is therefore apparent that whether the fulfilment of a particular formality as a condition of enforceability of a particular right is procedural or substantive has not been, as we had already noticed free from difficulty.
What appears to be a self evident principle will not become so evident when we begin to devise tests for distinguishing procedural rule from substantive law.
It appears to us that there is a difference between the manner in which the jurisprudential lawyers consider the question and the %way in which the Judges view the matter.
The present tendency (1) All. 1 (FB).
(2) , Bom.
14 (FB).
877 is that where a question of limitation arises, the distinction between so called substantive and procedural statutes of limitation may not prove to be a determining factor but what has to be considered is whether the statute extinguishes merely the remedy or extinguishes the substantive right as well as the remedy.
Instead of generalising on a principal the safest course would IV to ' examine each case on its own facts and circumstances and determine for instance whether it affects substantive rights and extinguishes% them or whether it merely concerns a procedural rule only dealing with remedies or whether the intendment to prescribe limitation is discernible from the scheme of the Act or is inconsistent with the rule making power etc, Apart from the implications inherent in the term procedure appearing in Sec. 96(1)(b) the power to prescribe by rules any matter falling within the ambit of the term must be the "Procedure to be followed in proceedings be fore such Court".
The word 'in ', emphasised by us, furnishes a clue to the controversy that the procedure must be in relation to proceedings in Court after it has taken decision of the matter, which obviously it takes when moved by an application presented before it.
If such be the meaning the application by which the Court is asked to adjudicate on a matter covered by Sec.
75(2) is outside the scope of the rule making power conferred on the Government.
In the East & West Steamship Company, George Town, Madras vs section K. Ramalingam Chettiar(1), one of the questions that was considered by this Court was whether the clause that provides for a suit to be brought within one year after the delivery of the goods or the date when the goods should have been delivered, only prescribes a rule of limitation or does it also provide for the extinction of the right to compensation after certain period of time.
It was observed by Das Gupta, J, at page 836 : "The distinction between the extinction of a right and the extinction of a remedy for the enforcement of that right, though fine, is of great importance.
The legislature could not but have been conscious of this distinction when using the words "discharged from all liability" in an article purporting to prescribe rights and immunities of the shipowners.
The words are apt to express an intention of total extinction of the liability and should, specially in view of the international character of the legislation, be construed in that sense.
878 It is hardly necessary to add that once the liability is extinguished under this clause, there is no scope of any acknowledgement of liability thereafter".
What we have to consider is, apart from the question that the Government on the terms of Sec.
96(1) (b) is not em powered to fix periods of limitation for filing applications under Sec. 75 (2) to move the Court, whether on an examination of the Scheme of the Act, rule 17 affects substantive rights by extinguishing the claim of the Corporation to enforce the liability for contributions payable by the Appellant.
An examination of the purpose and intendment of the Act and the scheme which it effectuates, leaves no doubt that it was enacted for the benefit of the employees and their dependents, in case of sickness, maternity and 'employment injury ', as also to make provision for certain other matters.
40 makes the employer liable in the first instance to pay the contributions of the employer as well as the employee to the Corporation subject to the recovery from the employee of the.
amount he is liable to contribute.
This liability on the employer is categorial and mandatory.
He is further required under Sec. 44 to submit to the Corporation returns as specified therein.
Chapter V com prised of Sections 46 to 73, deals with the benefits which includes among others, sickness and disablement benefit of the employee, his eligibility for receiving payments and.
the compensation payable to his dependents.
If the employee fails or neglects to pay the contributions as required, the Corporation has the right to recover from him under Sec.
68, the amounts specified in that Section as an arrear of land revenue.
94 provides that the contributions due to a corporation are deemed to be included in the debts under the Insolvency Acts and the Company 's Act, and are given priority over other debts in the distribution of the pro perty of the insolvent or in the distribution of the assets of a Company in liquidation.
Chapter VI deals with adjudication of disputes and claims, of which Sec.
74 provi des for he Constitution of the Insurance Court; Sec.
74 specifies the matters to be decided by that Court; Sec. 76 and Sec.
77 deal with the institution and commencement of proceedings and Sec.
78 with the powers of the Insurance Court.
80 deals with the non admissibility of the claim, if not made within twelve months after the claim is due while Sec.
82(3) prescribes the period within which an appeal should be filed against the order of the Insurance Court.
These provisions in our view unmistakably indicate that the whole scheme is dependent upon the contributions made by the employer not only with respect to the amounts payable by him but also in respect of those payable by the employee.
No limitation has been fixed for the recovery of these amounts 879 by the Corporation from the employer; on the other hand Sec.
68 empowers the Corporation to resort to coercive process.
If any such steps are proposed to be taken by the Corporation and the employer is aggrieved he has a right to file and apply to the Insurance Court and have his claim adjudicated by it in the same way as the Corporation can prefer a claim in a case where the liability to pay is disputed.
75 (2) (d) clearly envisages this course when it provides that "the claim against a principal employer under Sec.
68" shall be decided by the Employees Insurance Court.
It may be useful to read Sec.
68 and 75 (2) (d) which are given below Sec.
68 (1)If any principal employer fails or neglects to pay any contribution which under this Act he is liable to pay in respect of any employee and by reason thereof such person becomes disentitled to any benefit or entitled to a benefit on a lower scale, the Corporation should have been paid by the principal employer, pay to the person the benefit at the rate to which he would have been paid by the principal employer, pay to the person the benefit at the rate to which he would have been entitled if the failure or neglect had not occurred and the Corporation shall be entitled to recover from the principal employer either (i) the difference between the amount of benefit which is paid by the Corporation to the said person and the amount of the benefit which would have been payable on the basis of the contributions which were in fact paid by the employer; or (ii) twice the amount of the contribution which the employer failed or neglected to pay; whichever is greater.
(2)The amount recoverable under this Section may be recovered as if it were on arrear of land revenue.
Sec.75 (2) The following claim shall be decided by the Employees ' Insurance Court, namely (d)Claim against a principal employer under Section 68; It is contended by the learned Advocates for the Appellant that Sec.
68 is a crucial provision as it indicates that the right of the Corporation to enforce its claim for payment has been preserved 880 subject to tile provision that the omission or neglect by the principal employer to make contribution deprives the employee of any benefit either totally or 'at a reduced scale.
It is only in these circumstances he submits that the Corporation can recover the amount by coercive process but in any other case the Corporation 's claim to recover by an application to the Insurance Court can be made subject to a period of limitation by a rule made under Sec. 96(1)(b).
We are unable to appreciate the logic of this submission because the benefit of an employee can be negatived or partially admitted for instance either by reason of the employer not showing him in the return as an employee of his or showing him as drawing a lesser wage than what he is entitled to or as it may happen mostly, when he fails to make the payments even according to the returns made by him.
In all these cases the employee 's benefits will be affected because the basis of the scheme of conferring benefit on the employee is the contribution of both the employer and the employee.
It is clear therefore that the right of the Corporation to recover these amounts by coercive process is not restricted by any limitation nor could the Government by recourse to the rule making power prescribe a period in the teeth of Sec.
What Sec.
75(2) is empowering is not necessarily the recovery of the amounts due to the Corporation from the employer by recourse to the Insurance Court but also the settlement of the dispute of a claim by the Corporation against the principal employer which implies that the principal employer also can, where he disputes the claim made and action is proposed to be taken against him by the Corporation under See.
68 to recover the amounts said to be due from him.
While this is so there is also no impediment for the Corporation itself to apply to the Insurance Court to determine a dispute against an employer where it is satisfied that such a dispute exists.
In either case neither Sec.
69 nor Sec. 75 (2) (d) prescribes a period of limitation.
It may also be mentioned that Sec. 77 which deals with the commencement of the proceedings, does not provide for any limitation for filing an application to the Insurance Court even though it provides under sub sec.
(2) of that Section that every such application shall be in such form and shall contain such particulars and shall be accompanied by.such fee, if any, that may be prescribed by rules made by the State Government in consultation with the Corporation.
This was probably an appropriate provision in which the legislature if it had intended to prescribe a time for such applications could have provided.
Be that as it may in our view the omission to provide a period of limitation in any of these provisions while providing for a limitation of a claim by an employee for the payment of any benefit under the regulations, shows clearly that the legis lature did not intend to fetter the claim under Sec.
75(2)(d).
It appears to us that where the legislature clearly intends to pro 881 vide specifically the period of limitation in respect of claims arising thereunder it cannot be considered to have left such matters in respect of claims under some similar provisions to be provided for by the rules to be made by the Government under its delegated powers to prescribe the procedure to be.
followed in proceedings before such Court.
What is sought to be conferred is the power to make rules for regulating the procedure before the Insurance Court after an application has been filed and when it is seized of the matter.
That apart the nature of the rule bars the claim itself and extinguishes the right which is not within the pale of procedure.
Rule 17 is of such a nature and is similar in terms to Sec. 80.
There is no gain saying the fact that if an employee does not file an application before the Insurance Court within 12 months after the claim has become due or he is unable to satisfy the Insurance Court that there was a reasonable excuse for him in not doing so, his right to receive payment of any benefit conferred by the Act is lost.
Such a provision affects substantive rights and must therefore be dealt with by the legislature itself and is not to be inferred from the rule making power conferred for regulating the procedure unless that is specifically provided for.
It was pointed out that in the Constitution also where the Supreme Court was authorised with the approval of the President to make rules for regulating generally the practice and procedure of the Court, a specific power was given to it by article 145 (1) (b) to prescribe limitation for entertaining appeals before it.
It is therefore apparent that the legislature does not part with the power to prescribe limitation which it jealously retains to itself unless it intends to do so in clear and unambiguous terms or by necessary intendment.
The view taken by the Madhya Pradesh, Madras, Punjab and Andhra Pradesh High Courts in the cases already referred to are in consonance with the view we have taken.
In the decision of the Punjab High Court, Dua, J, as he then was expressed the view of the Full Bench with which Palshaw C. J., and Mahajan J, agreed.
After examining the provisions of the Act he observed at page 170 171 "At this stage, I consider it appropriate to point out, what is fairly well recognised, that what is necessarily or clearly implied in a statute is an effectual as that, which is expressed because it often speaks as plainly by necessary inference as in any other manner.
The purposes and aims of an Act as discernible from its statutory scheme are accordingly important guideposts in discovering the true legislative intent.
One who considers only the letter, of an enactment, goes but, skin deep into its true meaning; to be able to fathom the real statutory intent it is always helpful to inquire into the object intended to be accomplished.
882 Considering the entire scheme of the Act before us, it is quite clear that fixation of any period of limitation for the Corporation to realise the contributions from the employer may tend seriously to obstruct the effective working and enforcement of the scheme of insurance".
It may be of interest to notice that Palshaw C. J. had earlier taken a different view in Chanan Singh vs Regional Director, Employees State Insurance Corporation(1), but said that he, had no hesitation in agreeing with Dua J 's view because he realised that his earlier view was based on an over simplification.
In the latest case the Andhra Pradesh High Court also following the earlier decision of Madhya Pradesh, Madras and Punjab held that the State Government had exceeded its powers to frame Rule 17 as no such power to prescribe limitation under the provisions ,of Sec. 96 (1 ) (b) or under Sec.
78 (2) can be said to have been delegated to the State Government.
We, however, find that Sec.
78(2) does not delegate any power to the Government to make rules but only requires the Insurance Court to follow "such pro cedure as may be prescribed by rules made by the State Government" which rules can only be made under Sec.
96 of the Act.
In the view we have taken it is unnecessary to examine the question whether legislative practice also leads to the same conclusion though in the Madras and the Punjab decisions that was also one of the grounds given in support of their respective conclusions.
The contrary view expressed by a Bench of the Allahabad High Court is in our opinion not good law.
We may before parting with this case point out that the legislature since chosen to specifically prescribe 3 years as limitation period by addition of sub sec.
(1A) to Sec. 77 while deleting Sec. 80.
See 77(1A) provides that "Every such application shall be made within a period of three years from the date on which the cause of action arose".
By this amendment the claim under clause (d), as well as, the one under clause (f) of sub section (2) of Section 75 which provides for the adjudication of a claim by the Insurance Court for the recovery of any benefit admissible under the Act for which a separate limitation was fixed under Sec. 80, is now to be made within 3 years from the date of the accrual of the cause of action.
amendment also confirms the view taken by this Court that the power under Section 96 (1) (b) does not empower the Government to prescribe by rules a period of limitation for claims under Sec. 75.
In the result this appeal is dismissed with costs.
K.B.N. Appeal dismissed.
| Section 3 of the Essential Supplies (Temporary Powers) Act, 1946, provided as follows: (1) The Central Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of an essential commodity, or for securing their equitable distribution and availability at fair prices, may by notified order, provide for regulating or prohibiting the production, supply and distribution thereof, and trade and commerce therein.
Without prejudice to the generality of the powers conferred by sub section
(1) an order made thereunder may provide . (j) for any incidental and supplementary matters.
including in particular the entering, and search of premises, vehicles, vessels and aircraft, the seizure by a person authorised to make such search of any articles in respect of which such person has reason to believe that a contravention has been, is being, or is about to be commit ted. " In exercise of the powers conferred on the Central Government by cl.
(j) of sub section
(2) of section (3) of the above said Act, which had been delegated to the Provincial Govern ment in relation to food stuffs, the Governor of Bihar made an order authorising the District Magistrate, Patna, and the Special Officer in charge of rationing, Patna, to search the stock of sugar held by a company of which the appellant was the General Manager and directing the seizure of 5,000 maunds of sugar held in stock by the said company, on the ground that the company was about to commit a contravention of an order of the Chief Controller of Prices and Supplies made under the Sugar and Sugar Products Control 304 Order, 1947.
The appellant obstructed the officers who went to search and seize the goods and was convicted under section 186, Indian Penal Code.
Held, (i) the power "to provide for regulating or prohib iting production, supply and distribution" conferred by the Act on the Central Government included the power to regu late or prohibit by issuing directions to a particular producer or dealer or by requiring any specific act to be done or foreborne in regard to production etc., and the order of the Governor was not therefore invalid on the ground that it was not a rule or regulation of general application but an order concerning a particular company alone; (ii) sub section (2) of section 3 conferred no further or other powers than what were conferred by sub section
(1) and the enumeration of certain matters in sub section
(2) was merely illustrative, as such enumeration was "without prejudice to the generality of the powers conferred by sub section
(1) "; (iii) seizure of an article being within the purview of sub section
(1) of section 3 it was therefore competent to the Cen tral Government, and its delegate the Provincial Government, to make an order for seizure under sub section
(1) apart from and irrespective of the anticipated contravention of any other order as contemplated in el.
(j) of sub section (2); (iv) even assuming that the order of the Chief Control ler of Prices under the Sugar Control Order was incomplete and inoperative and there could be no question of its con travention, the reference to that order in the order made by the Governor would be a mere redundancy and would not affect the validity of the latter order, and the appellant was rightly convicted under section 186, Penal Code.
Quaere: Whether for an offence under section 186, Penal Code, it is necessary that the act which was obstructed must be duly authorised and otherwise lawful.
King Emperor vs Sibnath Banerjee applied.
|
ivil Appeal No. 1277 of 1979.
From the Judgment and Decree dated 4.8.1977 of the Kerala High Court in A. section No. 640 of 1971.
G. Viswanath lyer, F.S. Nariman, K. Parasaran, K.R. Nambiar, P. K. Pillai, section Balakrishnan, section Ganesh, Joy Joseph, Mrs. A.K. Verma, section Sukumaran for J.B.D. & Co., Baby Krishnan and V.J Francis for the appearing parties.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The dispute before us is regarding the ownership rights over the timber clear felled from about 150 acres of jungle area in Kallar Valley and the right to transport the timber so felled from the said area.
The Kallar Valley area forms part of the tract of land originally known as Kanan Devan Anchanatu Mala in the erstwhile Travancore territory of Kerala State.
This area is generally called the Kanan Devan Hills concession (hereinafter called the 'Concession Area ') ' The Poonjar Rajs, held free hold proprietary rights in the Concession Area.
Originally the Raja was exercising sovereign rights but later on he came under the suzerainty of Travancore State.
The Poonjar Rajsa, by a deed dated July 11, 1877 (hereinafter called 'First Concession '), conveyed the concession area with all the hills and forests therein to one J.D. Munro for cash consideration of Rs.5,000 and a deferred perpetual annual payment of Rs 3,000 from 1884 onwards.
Thereafter on July 26, 1879 a second document was executed between the same parties (hereinafter called 'Second Concession ').
The terms of the first concession were reiterated enuring to Munro, his heirs, successors and assigns absolute right for ever to make all kinds of cultivations and improvements on the Concession Area.
The grant of rights to Munro by the First Concession was ratified by the Travancore Government by a deed of ratification dated November 28, 1878.
Munro assigned the Concession Area to The North Travancore Land Planting and Agricultural Society Limited by a deed dated December 8, 1879.
Thereafter an agreement was executed between the Travancore Government and the Society on August 2, 1886.
264 By virtue of the agreement dated September 18, 1889 between the Poonjar Raja and the Travancore Government and the proclamation of the Maharaja of Travancore dated August 24, 1899 the territory comprising the Kanan Devan Hills including the Concession Area was declared part of the Travancore State.
There were various transfers in respect of the Concession Area but finally by a deed dated July 16, 1900, the Concession Area came to be vested in the Kanan Devan Hills Produce Company Limited, (hereinafter called 'the company ').
In and around May 1963 the company clear felled about 150 acres in the Concession Area for cultivation.
The Company applied to the State Government for grant of free passes to transport the timber from the Concession Area.
The State Government by an order dated November 25, 1966 informed the company that it could not take away timber outside the limits of the Concession Area except in accordance with the Rules of the forest department and on payment of levy in the shape of Kuttikanam.
According to the Government in terms of the deeds of conveyance/ratification the company was liable to pay Kuttikanam in respect of the timber taken out of the Concession Area.
The company filed a suit in the year 1968 in the Court of Subordinate Judge, Kottayam against the State of Kerala and its officers.
In the suit, the company prayed for the following reliefs: (a) A declaration that the plaintiff company has full and unqualified ownership and title over, and right of removal of the said timber from the Concession Area; (b) Declaration that the State has no right to claim seigniorage, Kuttikanam or any other payment in respect of the said timber; (c) A mandatory injunction directing the defendants to grant the necessary free passes for the free transit of the timber outside the Concession Area; (d) Prohibitory injunction restraining the defendants from taking any steps under the order dated 25.11.1966.
The State Government resisted the suit and controverted the interpretation placed by the company on the deeds of conveyance/ ratification.
According to the State the company was only a lessee of the Concession Area and in terms of the deeds of conveyance/ratification the State Government had the absolute right over the trees and 265 timber in the Concession Area.
The company only acquired the right to use and remove the timber subject to the restrictions imposed in the said documents.
It was further contended by the State Government that the title and ownership in the trees and timber in the Concession area always remained with the State Government and the company could only take the timber outside the limits of the Concession Area in accordance with the rules framed by the State Government and on payment of Kuttikanam.
The Trial Court in a detailed and well reasoned judgment dismissed the suit of the company.
The Trial Court on the interpretation of First Concession (Exhibit P 1), Second Concession (Exhibit P 2), deed of ratification (Exhibit P 62) and the Government agreement with the Society dated August 2, 1866 (Exhibit P 64) came to the conclusion that the company did not acquire absolute proprietary rights over the Concession Area or the trees and timber in the said area.
It was held that the Poonjar Chief had only conveyed heritable and transferable possessory rights over the Concession area to the grantee.
It was also held that absolute rights over the trees and timber in the Concession Area did not pass to the grantee and it had only the right to use and remove timber subject to the restrictions imposed in the deeds of conveyance/ratification.
The Court further held that the relevant rules framed under the Travancore Forest Act, 1952 for levy of Kuttikanam were applicable to the timber transported from the Concession Area.
The contention of the company that it was entitled to free passes for transportation of timber outside the Concession Area under the Transit Rules was rejected.
The suit of the company was thus dismissed with costs.
The company went up in appeal before the High Court.
It was contended that the Trial Court misinterpreted the documents P 1, P 2, P 62 and P 64.
It was contended that the Poonjar Raja had conveyed absolute possession to the grantee to be enjoyed perpetually with heritable and transferable right and it ought to have been held that the natural consequence of such a conveyance was to grant the company absolute title to the trees standing on the area so conveyed.
It was argued before the High Court that the State Government had no right over the trees and the timber within the Concession Area.
Before adverting to the various contentions raised by the parties before it the High Court indicated the approach it adopted to the questions involved in the case in the following words: 266 "For resolving the real controversy in the case we do not think there should be an enquiry into the question whether the plaintiff company is the absolute owner of the Concession Area as alleged by them or the company is only a lessee as contended by the defendants.
Nor do we think any decision is necessary here as to whether at the time, the agreement and proclamation of 1899 came into existence, the Poonjar Chief had vested in him any proprietary rights over the Concession Area which he could pass to the government.
We also do not think we should make a general enquiry as to the nature and extent of the rights conveyed and secured by the First Poonjar Concession of 11.7.1877 and second Poonjar Concession of 26.7.1879 (Exs.
P 1 and P2).
We can well proceed in the matter on the basis, as stated by the court below, that absolute rights over the Concession Area had not been conveyed under Exs.
P 1 and P 2, that by virtue of the transactions the plaintiff had only absolute possession with heritable and transferable interest and the right to enjoy the land subject to the terms and conditions declared and defined in the Ratifica tion Deed and agreement of modification, namely Exs.
P 62 and P 64.
The question is what is the plaintiff 's right over the timber and tree growth in the area on the basis of the grant under Exs.
P 1 and P 2, wherein it gets wide rights in regard to the jungles and forest in the Concession Area unqualified rights to clear the land and improve the source.
It is no doubt true that the rights which the plaintiff has acquired as per the grant of the Poonjar Raja are subject to the terms and conditions imposed by the Sovereign power of the Maharaja under exhibit P 62 and P 64.
In short the question for a decision in the appeal will revolve round the interpretation of the relevant clauses in these documents.
" The High Court then considered the contents of the documents P 62 and P 64 and came to the conclusion that the company had full rights over the timber clear felled from the Concession Area and it had right of removal of the timber with the necessary free passes issued under the timber transit rules.
It was further held that the State of Kerala had no right or claim for the seigniorage or Kuttikanam or any other payment in respect of the said timber.
The High Court allowed the appeal of the company and set aside the judgment and decree of the Trial Court.
This appeal via special leave petition is against the judgment of the High Court.
267 The High Court proceeded on the basis that absolute rights over the Concession Area had not been conveyed under the documents of conveyance/ratification and the right to enjoy the land was subject to the terms and conditions declared in the ratification deed P 62 and the agreement of modification P 64.
We agree with the approach of the High Court.
The question, therefore, is what are the company 's rights over the timber and the tree growth in the Concession Area.
This takes us to clause 5 of P 62 and clause 7 of P 64 which are relevant.
Clause fifth of the ratification dated November 28, 1878 Exhibit P 62 is as under: "Fifth: The grantee can appropriate to his own use within the limits of the grant all timber except the following and such as may hereafter be reserved, viz., Teak, Coal teak, Black wood, Aboney, Karinthali Sandalwood.
Should he carry any timber without the limits of the grant it will be subject to the payment of Kuttikanam or customs duty or both as the case may be in the same way as timber ordinarily felled.
In the case of the excepted timber the grantee is required to pay seigniorage according to the undermentioned scale. .
The grantee is bound to deliver to the Poonjar Chief, to enable him to make over to the Sirkar, all ivory, cardamoms and other royalties produced in the land and all captured elephants and he will be paid by the said Chief according to agreement with him the regulated price for the articles of produce and the regulated reward for the elephants.
Clause 7 of the agreement dated August 2, 1886 Exhibit P 64 is as under: "7.
The society, its successors and assigns may use and appropriate to its own use within the limits of the said tract of land all timber except the following and such as may hereafter be reserved, viz., Teak, Coak teak, Black wood, Aboney, Karinthali and Sandalwood.
But such society, its successors and assigns shall not fell any timber beyond what is necessary for clearing the ground for cultivation and for building, furniture and machinery within the limits of the grant.
No unworked timber or articles manufactured therefrom shall be carried outside the limits of the grant except in conformity with the rules of the forest and 268 customs department for the time being in force.
In the case of the excepted timber the society for itself, its successors and assigns agrees to pay seigniorage according to the undermentioned scale. . .
The society for itself, its successors and assigns agrees to deliver to the said Poonjar Raja or Chief to enable him to make over the same to the government of Travancore, all ivory and cardamoms and other royalties. . captured elephants. .
Mr. Parasaran, learned counsel appearing for the respondent company contended that in P 62 it was provided that the grantee could not carry timber beyond the limits of the grant without payment of Kuttikanam but by the time the agreement P 64 was executed in the year 1886 Kuttikanam had been abolished and as such there was no provision for the payment of Kuttikanam in the document P 64.
Clause 7 of P 64 reproduced above makes it clear that the respondent company may use and appropriate to its own use within the limits of the Concession Area all timber except to the extent mentioned therein.
It was further provided that. . . society, its successors and assigns shall not fell any timber beyond what is necessary for clearing the ground for cultivation and for building, furniture and machinery within the limits of the grant.
No unworked timber or articles manufactured therefrom shall be carried outside the limits of the grant except in conformity with the rules of the forest and customs department for the time being in force".
It is thus clear that the company has no right under the said clause to carry the unworked timber beyond the limits of the grant.
The company could not fell timber beyond what was necessary for clearing the ground for cultivation and for building, furniture and machinery within the limits of the grant.
Clause 7 clearly indicates that the grantee has no absolute right of ownership over the tree growth and the timber within the Concession Area.
The ownership remains with the Government and the grantee has been given the right to fell the trees for clearing the ground for cultivation and to use the timber for specified purposes within the limits of the grant.
An identical clause in another grant entered into by the Travancore Government came for consideration before a Full Bench of the Kerala High Court in George A Leslie vs State of Kerala, [ K. K. Mathew, J. (as the learned Judge then was) interpreted the clause as under: "We think that if title to the reserved trees passed to the grantees, a provision of this nature would have been 269 quite unnecessary.
There was no purpose in stating that the grantees will be free to appropriate the reserved trees for consumption within the limits of the grant, if title to the trees passed to the grantees; the provision is a clear indication that the grantees were allowed to cut and appropriate the reserved trees for consumption within the limits of the grant as a matter of concession.
We agree with the interpretation given to the clause by Mathew, J. and hold that the respondent company did not acquire absolute proprietary rights over the Concession Area or the trees and the timber therein.
The company acquired the right to fell the trees and use the timber subject to the restrictions imposed in clause 7 of P 64.
Since the respondent company has no right to remove the timber beyond the limits of the Concession Area, the State Government was justified in refusing to permit free transportation of timber from the said area.
We do not agree with Mr. Parasaran that Kuttikanam having been abolished in the year 1884 the respondent company was not liable to pay Kuttikanam while transporting the timber from within the Concession Area.
In Leslie vs State of Kerala (supra) the term "Kuttikanam" was explained as under: "In the Malayalam and English Dictionary by Rev. H. Gundert D. Ph. page 278, 'Kuttikanam ' is defined as meaning 'the price of timber; fee cliambable by the owner for every tree cut down by the renter '.
In 'The Manual of Malabar Law ' by Kadaloor Ramachandra lyer, Chapter, VII, page 44, it is stated: 'Kuttikanam is a mortgage of forests by which the landlord assigns on mortgage a tract of forest land receiving a stipulated fee for every trees felled by the mortgagee, the entire number of the trees, to be cut down and the period within which they are to be felled being expressly fixed in the karar entered into between the parties. .
In the Glossary attached to the Land Revenue Manual (1916) Vol.
IV, at page 883, the word 'Kutti kanam ' is said to mean 'a fee paid to the Sirkar for felling trees other than royal trees and tax paying trees '.
In the 270 Glossary of Administrative Terms, English Malayalam, by the Official Language Committee, at page 302, 'seigniorage ' is defined as meaning. .
We do not think that 'Kuttikanam ' is either a fee or tax.
A tax or fee is levied in the exercise of sovereign power.
We think that in the context 'Kuttikanam ' means the Government 's share of the value of the reserved trees.
" It was further held by Mathew, J. that Kuttikanam being the Government 's share of the value of the trees owned by the Government it has the power to fix the value of the trees.
We agree with the reasoning and conclusions reached by Mathew J. Since the ownership cover the tree growth and timber in Concession area vests with the Government it has a right to impose Kuttikanam on the removal of the trees from within the Concession area.
We may examine the justification for levying Kuttikanam from another angle.
Clause 7 of P 64 states that no unworked timber or articles manufactured therefrom shall be carried outside the limits of the grant except in conformity with the rules of the forest department for the time being in force.
The Government of Kerala, in exercise of its rule making power under Section 93 of the Travancore Cochin Forest Act, 1951, framed rules regulating the levy of Kuttikanam on trees, standing on Government land by a notification dated July 9, 1958.
The said rules are reproduced hereinafter.
"TRAVANCORE COCHIN FOREST ACT, 1951 (111 OF 1952) RULES REGULATING THE LEVY OF KUTTIKANAM ON TREES IN GOVERNMENT LANDS.
(Section 93(2)(d)(dd) and (e) Notification No. 14824/58 3/Agri./F.(B) 3 dated 9th July 1958 published in the Gazette dated 15th July 1958 Part In exercise of the powers conferred by sub section (2)(d)(dd) and (e) of Section 93 of the Travancore Cochin Forest Act, 1951 (Act Ill of 1952) the Government of Kerala hereby make the following rules, regulating the levy of Kuttikanam on trees, standing on Government lands, namely: 271 1.
All trees standing on land temporarily or permanently assigned, the right of Government over which has been expressly reserved in the deed of grant or assignment of such land, shall be the absolute property of Government.
It shall not be lawful to fell, lop, cut or maim or otherwise maltreat any tree which is the property of Government without proper sanction in writing granted by an officer of the Forest Department not below the rank of an Assistant Conservator: Provided that in cases where the holder of the land is allowed under the title deed to lop or fell any such tree, such lopping or felling may be done by such holder in the manner and subject to such conditions and payment as may be specified in the title deed in that behalf.
Any lopping or felling of such trees otherwise than in accordance with the conditions and limitation specified in the deed of grant shall be unlawful.
Government may, in the absence of any provision to the contrary in the title deed, sanction the sale of timber which is the property of Government to the holder of the land on which such timber is standing, on payment of Kuttikanam or Seigniorage or such other rates as may be specified by Government in each individual case.
In cases where the title deed specified the rate at which the timber will be sold to the holder of the land, such rates only will be levied.
Explanation: 'Kuttikanam ' means the seigniorage rate that may be in force in the Forest Department from time to time and notified by Government.
The Collector of each District shall forward to the Chief Conservator of Forests a statement showing the full details of the trees standing on such lands at the disposal of Government as may hereafter be granted for permanent cultivation, under the Land Assignment Act and the rules framed thereunder.
On receipt of such statement, the Chief Conservator of Forests will take appropriate action for the disposal of such tree growth within the period allowed under Section 99 of the Forest Act.
272 The Travancore Cochin Forest Act 1951 was repealed by the Kerala Forest Act, 1961 but Section 85(3) of the said Act saves the rules framed under the repealed Act.
It is thus obvious that the rules reproduced above were holding the field at the relevant time.
The trial Judge primarily relied on these rules for holding that the Government was justified in demanding Kuttikanam from the respondent company.
The High Court, however, did not take into consideration these rules while interpreting clause 7 of Exhibit P 64.
We agree with the findings of the trial court to the effect that the above quoted rules read with clause 7 of Exhibit P 64 empowers the State Government to levy and demand Kuttikanam from the respondent company in respect of timber taken out of the limits of the Concession area.
Mr. Parasaran invited our attention to a letter dated May 21, 1932 (Exhibit P 4) from Chief Secretary to Government to the General Manager of the respondent company.
The letter reads as under: "With reference to your letter dated the 25th January, 1928 regarding the payment of seigniorage on reserved trees felled from the K.D.H.P Company 's Concession Area, I have the honour to inform you that Government accept your view that no seigniorage is due from the Company on trees other than the Royal Trees specifically mentioned in Clause 7 of the Agreement and sanction accordingly." Mr. Parasan contended that the State Government interpreted clause 7 of P 64 to mean that no seigniorage (Kuttikanam) was due from the company on trees other than the Royal Trees specified in the said clause.
He argued that in the face of the Government decision in the above letter the Government could not demand Kuttikanam from the respondent company in respect of the non Royal Trees removed from within the limits of the Concession Area.
We do not agree with the contention of the learned counsel.
The letter re produced above refers to the letter dated January 25, 1928 (exhibit P 3) written by the General Manager of the company to the Government.
The letter P l states as under: "The question arose through the Forest Department claiming seigniorage on certain species of timber, used by this Company within the concession area for building purposes, and which have been reserved under the Forest Regulation.
273 The letter also states as under: A ". .
I think it advisable that the whole question of Timber Rights in the Concession should be considered and settled if possible.
" It is no doubt correct that while focusing the controversy in respect of the timber used by the company within the Concession Area the General Manager dealt with the larger question of timber rights in the Concession Area but reading the two letters P 3 and P 4 together the only conclusion which could be reached is that the letter P 4 was with respect to the use of timber by the company within the Concession Area.
The letter P 4 cannot be read to mean that no Kuttikanam was leviable on the timber removed by the respondent company outside the Concession Area.
In any case the wording of clause 7 of P 64 is clear and unambiguous.
The Government letter P 4 is to be read in the light of clear phraseology of clause 7 and not the vice versa.
We allow the appeal and set aside the judgment of the High Court.
We uphold and approve the judgment and findings of the Trial Court.
The suit of the respondent plaintiff is dismissed with costs which we quantify as Rs.5,000 R. N. J. Appeal allowed.
| The appellants are manufacturers of Polyester fibre yarn.
They obtained a contract from the Imperial Chemical Industries, Singapore for the supply of the said yarn and the said concern had agreed to supply to the appellants free of cost the di methyl terephthalate (DMT) D required for the manufacture of Polyester staple fibre yarn.
The DMT was required to be converted into polyester fibre, blended with viscose indigenously and shipped to a customer of the ICI in Sri Lanka.
The appellant assessees obtained customs clearance permits for import of 392 tons of DMT and also of 178 tons of viscose stable fibre.
The appellants also obtained permission to convert the imported DMT into polyester fibre under customs bond.
The appellants imported the DMT and paid the customs duty in respect thereof Section 75 of the empowers the Central Government to allow the drawback of the duties of customs chargeable under the Act on any imported materials of a class or description in the manufacture of such goods in accordance with and subject to the rules under sub section (2).
There is an identical provision in section 37 of the Central Excises & Salt Act, 1944 enabling grant of draw back of the excise duty paid in relation to such manufacture.
The Central Government framed the Customs and Central Excise Duties Drawback Rules 1971 enabling drawback being availed of in relation to customs as well as in relation to duties of central excise.
Schedule II to the notification listed the items the export of which entities an assessee to avail of the drawback facility.
DMT as such was not included in the notification in respect of which drawback could have been availed of by the assessees.
The assessee therefore made an application to the Ministry of Finance on 23.3.1977 requesting that since it had paid customs duty on DMT, it was entitled to its drawback, more 289 particularly when its request for the manufacture of the polyester fibre under customs bond had been declined by the customs authorities.
The application filed by the appellants was rejected bY the Central Government on 12.3.1978, though on a representation made by the Members of the Association of manufacturers of Polyester staple fabric a notification had been issued on 2.8.76 under Section 25 of the Customs Act B exempting DMT from Customs duty.
The appellant thereupon filed writ petition in the Delhi High Court which was dismissed by the High Court.
Hence these appeals.
Dismissing the appeals, but recommending to the Central Government to consider the case of the appellants on equitable grounds whether the relief could be granted to it, this Court, HELD: Though Section 75 of the and Section 37 of the Central Excises & Salt Act 1944 empower the Government to provide for the repayment of the customs and excise duties paid by individual manufacturers also, the rules as framed (rule 3 in particular) provide only for a refund of the 'average amount of duty paid on materials, of any particular class or description of goods used for the manufacture of export goods of that class or description by manufacturers generally, except to the extent prescribed under rule 7.
[30OA B].
The rules do not envisage a refund of an amount arithmeticaly equal to the customs duty or central excise duty which may have been actually paid by an individual importer cum manufacturer.
If that had been the statutory intendment, it would have been simple to provide that in all cases where imported raw materials are fully used in the manufacturers of goods which are exported, the assessee would be entitled to a draw back of the customs or excise duties paid by him for the import or on the manufacture.
[300C] There is no controversy that, in this case, the goods exported fall under item 25.
R was sought to be contended that the goods fall under sub item 2501, but this is clearly untenable.
Sub item 2501 represents a residuary category which will not be attracted to the goods which clearly fall under sub item 2502.
The notification prescribes different amounts of drawback under this item depending on the composition of the yarn and the nature of its contents.
It specifies an amount of Rs.43.15 per kg.
as the relief by way of drawback available against the goods with which we are concerned which fall under clause (b) of item 2502.
[30OH 301B] 290 The High Court was right in concluding that the rate of drawback in respect of the goods in question was fixed after taking into consideration the aspect of the customs duty payable in respect of DMT and that a conscious decision was taken that no relief in this respect should be granted as DMT was available in the country itself.
It cannot therefore, be said that this is a case where the fixation is contrary to the terms of rule 3, and that the assessee 's application for determination of a rate in his case should be taken as an application under rule 6.
[303B) Rule 6 is also inapplicable for the reason that an application under rule 6 should be made before the export of the manufacturer 's goods which does not seem to be the case here.
[303C]
|
Civil Appeal No. 1178 of 1988.
From the Judgment and Order dated 5.11.1986 of the Delhi High Court in F.A.O. (OS) No. 231 of 1986.
Hardev Singh and Miss Madhu Moolchandani for the Appellant.
S.B. Saharya, V.B. Saharya and Ratna Nair for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special Leave granted.
353 The Delhi Development Authority vide its letter dated 5th October, 1976 accepted the tender of the appellant for construction of 240 Janta Houses at the estimated cost of Rs.24,49,262.
The work was to commence on 15th October, 1976 and was required to be completed by 14th July, 1977.
By a subsequent extension of time the work was finally completed on 2nd April, 1980 and the houses so constructed have been allotted to several people.
Between February 1983 to December 1985 the appellant sent several letters to the respondent requesting them to finalise the bills.
It appears, however, that the first of such letters was written on 28th February, 1983.
Thereafter the appellant wrote several letters and finally on 4th September, 1985 to the respondent to finalise the bills and ultimately served the notice through his counsel requesting it to release the security of Rs.1 lakh and refer the dispute to arbitration.
The respondent failed to do so.
In January, 1986 the appellant filed an application under section 20 of the (hereinafter called 'the Act ') seeking a direction from the Court that the respondent be directed to file the arbitration agreement in the Court and the dispute be referred to the arbitration.
The learned Single Judge of the High Court of Delhi dismissed the application as barred by time.
There was an appeal to the Division Bench of the High Court of Delhi.
The Division Bench upheld the decision of the learned Single Judge.
Hence this appeal to this Court.
The question is, whether the High Court was right in upholding that the application under section 20 of the Act was barred by limitation.
In view of the decision of this Court in Kerala State Electricity Board, Trivandrum vs T.P.K.K. Amsom and Bensom, Kerala, ; , it is now well settled that Article 137 of the would apply to any petition or application filed in a Civil Court.
Sub section (1) of section 20 of the Act provides as follows: "Application to file in Court arbitration agreement: Where any persons have entered into an arbitration agreement before the institution of any suit with respect to the subject matter of the agreement or any part of it, and where a difference has arisen to which the agreement applies, they or any of them, instead of proceeding under Chapter II, may apply to a court having jurisdiction in the matter to which the agreement relates, that the agreement be filed in Court.
" Therefore, in order to be entitled to order of reference under 354 section 20, it is necessary that there should be an arbitration agreement and secondly, difference must arise to which this agreement applied.
In this case,there is no dispute that there was an arbitration agreement.
There has been an assertion of claim by the appellant and silence as well as refusal in respect of the same by respondent.
Therefore, a dispute has arisen regarding non payment of the alleged dues of the appellant.
The question is for the present case when did such dispute arise.
The High Court proceeded on the basis that the work was completed in 1980 and, therefore, the appellant became entitled to the payment from that date and the cause of action under article 137 arose from that date.
But in order to be entitled to ask for a reference under section 20 of the Act there must not only be an entitlement to money but there must be a difference or dispute must arise.
It is true that on completion of the work a right to get payment would normally arise but where the final bills as in this case have not been prepared as appears from the record and when the assertion of the claim was made on 28th February, 1983 and there was non payment, the cause of action arose from that date, that is to say, 28th of February, 1983.
It is also true that a party cannot postpone the accrual of cause of action by writing reminders or sending reminders but where the bill had not been finally prepared, the claim made by a claimant is the accrual of the cause of action.
A dispute arises where there is a claim and a denial and repudiation of the claim.
The existence of dispute is essential for appointment of an arbitrator under section 8 or a reference under section 20 of the Act.
See Law of Arbitration by R.S. Bachawat, 1st Edition, page 354.
There should be dispute and there can only be a dispute when a claim is asserted by one party and denied by the other on whatever grounds.
Mere failure or inaction to pay does not lead to the inference of the existence of dispute.
Dispute entails a positive element and assertion in denying, not merely inaction to accede to a claim or a request.
Whether in a particular case a dispute has arisen or not has to be found out from the facts and circumstances of the case.
The application under section 20 of the Act was filed in Court in January, 1986, that is to say, within the period of three years; therefore the application was within time.
The High Court was in error in dismissing the application on the ground of limitation.
The judgment and order of the High Court are, therefore, set aside.
The High Court is directed to make an order under section 20 of the Act and give consequential directions in respect of the same.
The costs of this appeal would be costs in the arbitration proceeding.
The appeal is thus allowed and disposed of as aforesaid.
N.P.V. Appeal allowed.
| The Government by an order dated March 9,1979 revised the fee scales of certain categories of Staff Artists in Doordarshan with retrospective effect from January 1, 1973 on the analogy of the recommendations of the Third Pay Commission made in respect of regular Government servants but the categories of the petitioners were denied the benefit by giving them junior scales.
In these writ petitions they assailed the said order as discriminatory and violative of articles 14 and 16(1) of the constitution.
Their case is that the nature of work performed by them is similar to that performed by their counterparts in the Film Division and the qualifications required For appointment to these categories of Staff Artists are also the same as required in the cases of their counterparts in the Film Division.
They, therefore, claimed that they should be declared Government servants and given the same pay scales as given to their respective counterparts in the Film Division of the same .Ministry of lnformation and Broadcasting with effect from the respective dates of their appointments.
The petitioners ' claim was contested by the respondents by contending that the Staff Artists of Doordarshan were not Government servants but were engaged on contract basis, that they were not of the same class as the employees of the Film Division and that they were therefore not entitled to the same scales of pay.
PG NO 604 PG NO 605 Allowing the writ petitions, HELD: 1.
The Staff Artists of Doordarshan including the petitioners are Government servants.
They possess all the criteria of a Government servant.
They are holding civil posts under the Government.
They are being appointed up to the age of 55 6O years on a time scale like a regular Government servant.
Their contract runs till the age of retirement as in regular government service.
608E, B, 606F] Union oflndia vs M.A. Chowdhary, AIR 1987 SC l526, applied.
2.1 The petitioners perform the same duties as those performed by their counterparts in the Film Division, under the same Ministry of Information and Broadcasting.
When two posts under two different wings of the same Ministry are not only identical, but also involve the performance of the same nature of duties, it would be unreasonable and unjust to discriminate between them in the matter of pay.
[609D] 2.2 One of the Directive Principles of State Policy as embodied in clause (d) of article 39 of the Constitution is equal pay for equal work for both men and women.
The Directive Principles contained in Part IV of the Constitution though not enforceable by any court, are intended to be implemented by the State of its own accord so as to promote the welfare of the people.
Article 37 provides, inter alia, that it shall be the duty of the State to apply these principles in making law.
[609E F] 2.3 The principle of "equal pay for equal work", if not given effect to in the case of one set of Government servants holding same or similar posts, possessing same qualifications and doing the same kind of work as another set of Government servants it would be discriminatory and violative of articles 14 and 16 of the Constitution.[609G] Such discrimination has been made in respect of the petitioners.
They are, therefore, entitled to same scales of pay as their counterparts in the Film Division.[609H 6l0A] [The petitioners to be given the new scales of pay with effect from the first day of the month of the year in which each writ petition was filed, except the petitioners in writ Petition Civil No. 1756 of 1986 who are to be given such scales of pay With effect from December 1,1983.
They would also be entitled to the substituted scales of pay and consequential benefits.
The respondents to disburse to the petitioners the arrear amounts being the difference in the pay scales within four months.][610B C,E F] PG NO 606
|
Appeals Nos. 37 & 38 of 1957.
Appeals from the judgment and order dated August 30, 1955, of the former Bombay High Court in Appeals Nos.
55 and 56 of 1955, arising out of the judgment and order dated June 23, 1955, of the said High Court in Misc.
Application No. 80 of 1955.
C. K. Daphtary, Solicitor General of India, B. Ganapathy Iyer and R. H. Dhebar, for the appellant (in C. A. No. 37 of 57) and respondent No. 6 (in C. A. No. 38/57).
section D. Vimadalal and I. N. Shroff, for the appellant (in C. A. No. 38/57) and respondent No. 6 (in C. A. No. 37/57.) Rajni Patel, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for respondents Nos.1 and 3 to 5 (in both the appeals).
section B. Naik and K. R. Chaudhuri, for respondent No. 2 (in both the appeals).
August 18.
The Judgment of the Court was delivered by GAJENDRAGADKAR J.
These two appeals arise from an industrial dispute between the Firestone Tyre and Rubber Co. of India Ltd., (hereafter called the company) and its workmen (hereafter called the respondents), and they raise a short and interesting question about the construction of section 12(5) of the 14 of 1947 (hereafter called the Act).
It appears that the respondents addressed four demands to the company; they were in respect of gratuity, holidays, classification of certain employees and for the payment of an unconditional bonus for the financial year ended October 31, 1953.
The respondents ' union also addressed the Assistant Commissioner of Labour, Bombay, forwarding to him a 229 copy of the said demands, and intimating to him that since the company had not recognised the respondents ' union there was no hope of any direct negotiations between the union and the company.
The Assistant Commissioner of Labour, who is also the conciliation officer, was therefore requested to commence the conciliation proceedings at an early date.
Soon thereafter the company declared a bonus equivalent to 1/4 of the basic earnings for the year 195253.
The respondents then informed the company that they were entitled to a much higher bonus having regard to the profits made by the company during the relevant year and that they had decided to accept the bonus offered by the company without prejudice to the demand already submitted by them in that behalf.
After holding a preliminary discussion with the parties the conciliation officer examined the four demands made by the respondents and admitted into conciliation only two of them ; they were in respect of the classification of certain employees and the bonus for the year 1952 53; the two remaining demands were not admitted in conciliation.
The conciliation proceedings initiated by the conciliator, however, proved infructuous with the result that on July 5, 1954, the conciliator made his failure report under section 12(4) of the Act.
In his report the conciliator has set out the arguments urged by both the parties before him in respect of both the items of dispute.
In regard to the respondents ' claim for bonus the conciliator made certain suggestions to the company but the company did not accept them, and so it became clear that there was no possibility of reaching a settlement on that issue.
Incidentally the conciliator observed that it appeared to him that there was considerable substance in the case made out by the respondents for payment of additional bonus.
The conciliator also dealt with the respondents ' demand for classification and expressed his opinion that having regard to the type and nature of the work which was done by the workmen in question it seemed clear that the said work was mainly of a clerical nature and the demand that the said workmen should be 230 taken on the monthly paid roll appeared to be in consonance with the practice prevailing in other comparable concerns.
The management, however, told the conciliator that the said employees had received very liberal increments and had reached the maximum of their scales and so the management saw no reason to accede to the demand for classification.
On receipt of this report the Government of Bombay (now the Government of Maharashtra) considered the matter and came to the conclusion that the dispute in question should not be referred to an industrial tribunal for its adjudication.
Accordingly, as required by section 12(5) on December 11, 1954, the Government communicated to the respondents the said decision and stated that it does not propose to refer the said dispute to the tribunal under section 12(5) " for the reason that the workmen resorted to go slow during the year 195253 ".
It is this decision of the Government refusing to refer the dispute for industrial adjudication that has given rise to the present proceedings.
On February 18, 1955, the respondents filed in the Bombay High Court a petition under article 226 of the Constitution praying for the issue of a writ of mandamus or a writ in the nature of mandamus or other writ, direction or order against the State of Maharashtra (hereafter called the appellant) calling upon it to refer the said dispute for industrial adjudication under section 10(1) and section 12(5) of the Act.
To this application the company was also impleaded as an opponent.
This petition was heard by Tendolkar J.
He held that section 12(5) in substance imposed an obligation on the appellant to refer the dispute provided it was satisfied that a case for reference had been made, and he came to the conclusion that the reason given by the appellant for refusing to make a reference was so extraneous that the respondents were entitled to a writ of mandamus against the appellant.
Accordingly he directed that a mandamus shall issue against the appellant to reconsider the question of making or refusing to make a reference under section 12(5) ignoring the fact that there was a slow down and taking into account only such reasons as are germane to the 231 question of determining whether a reference should or should not be made.
Against this decision the appellant as well as the company preferred appeals.
Chagla, C. J., and Desai, J., who constituted the Court of Appeal, allowed the two appeals to be consolidated, heard them together and came to the conclusion that the view( taken by Tendolkar J. was right and that the writ of mandamus had been properly issued against the appellant.
The appellant and the company then applied for and obtained a certificate from the High Court and with that certificate they have come to this Court by their two appeals Nos. 37 and 38 of 1957.
These appeals have been ordered to be consolidated and have been heard together, and both of them raise the question about the construction of section 12(5) of the Act.
Before dealing with the said question it would be convenient to state one more relevant fact.
It is common ground that during a part of the relevant year the respondents had adopted go slow tactics.
According to the company the period of go slow attitude was seven months whereas according to the respondents it was about five months.
It is admitted that under cl.23(c) of the standing orders of the company willful slowing down in performance of work, or abatement, or instigation thereof, amounts to misconduct, and it is not denied that as a result of the go slow tactics adopted by the respondents disciplinary action was taken against 58 workmen employed by the company.
The respon dents ' case is that despite the go slow strategy adopted by them for some months during the relevant year the total production for the said period compares very favorably with the production for previous years and that the profit made by the company during the relevant year fully justifies their claim for additional bonus.
The appellant has taken the view that because the respondents adopted go slow strategy during the relevant year the industrial dispute raised by them in regard to bonus as well as classification was not to be referred for adjudication under section 12(5).
It is in the light of these facts that we have to consider whether 232 the validity of the order passed by the appellant refusing to refer the dispute for adjudication under section 12(5) can be sustained.
Let us first examine the scheme of the relevant provisions of the Act.
Chapter III which consists of sections 10 and 10A deals with reference of dispute to Boards, Courts or Tribunals.
Section 10(1) provides that where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time by order in writing refer the dispute to one or the other authority specified in cls.(a) to (d).
This section is of basic importance in the scheme of the Act.
It shows that the main object of the Act is to provide for cheap and expeditious machinery for the decision of all industrial disputes by referring them to adjudication, and thus avoid industrial conflict resulting from frequent lock outs and strikes.
It is with that object that reference is con templated not only in regard to existing industrial disputes but also in respect of disputes which may be apprehended.
This section confers wide and even absolute discretion on the Government either to refer or to refuse to refer an industrial dispute as therein provided.
Naturally this wide discretion has to be exercised by the Government bona fide and on a consideration of relevant and material facts.
The second proviso to section 10(1) deals with disputes relating to a public utility service, and it provides that where a notice under section 22 has been given in respect of such a dispute the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub section notwithstanding that any other proceedings under this Act in respect of the dispute may have commenced.
It is thus clear that in regard to cases falling under this proviso an obligation is imposed on the Government to refer the dispute unless of course it is satisfied that the notice is frivolous or vexatious or that considerations of expediency required that a reference should not be made.
This proviso also makes it clear that reference can be made even if other proceedings under the Act 233 have already commenced in respect of the same dispute.
Thus, so far as discretion of the Government to exercise its power of referring an industrial dispute is concerned it is very wide under section 10(1) but is limited under the second proviso to section 10(1).
Section 10(2) deals with a case where the Government has to refer an industrial dispute and has no discretion in the matter.
Where the parties to an industrial dispute apply in the prescribed manner either jointly or separately for a reference of the dispute between them the Government has to refer the said dispute if it is satisfied that the persons applying represent the majority of each party.
Thus, in dealing with this class of cases the only point on which the Government has to be satisfied is that the persons applying represent the majority of each party ; once that test is satisfied the Government has no option but to make a reference as required by the parties.
Similarly section 10A deals with cases where the employer and his workmen agree to refer the dispute to arbitration at any time before the dispute has been referred under section 10, and it provides that they may so refer it to such person or persons as may be specified in the arbitration agreement; and section 10A(3) requires that on receiving such an arbitration agreement the Government shall, within fourteen days, publish the same in the official Gazette.
Section 10A(4) prescribes that the arbitrator or arbitrators shall investigate the dispute and submit the arbitration award to the appropriate Government; and section 10A(5) provides that such arbitrations are outside the Arbitration Act.
Thus cases of voluntary reference of disputes to arbitration are outside the scope of any discretion in the Government.
That in brief is the position of the discretionary power of the Government to refer industrial disputes to the appropriate authorities under the Act.
The appropriate authorities under the Act are the conciliator, the Board, Court of Enquiry, Labour Court ') Tribunal and National Tribunal.
Section 11(3) confers on the Board, Court of Enquiry, Labour Court, Tribunal and National Tribunal all, the powers 30 234 as are vested in a civil court when trying a suit in respect of the matters specified by cls.(a) to (d).
A conciliation officer, however, stands on a different footing.
Under section 11(4) he is given the power to call for and inspect any relevant document and has been given the same powers as are vested in civil courts in respect of Compelling the production of documents.
Section 12 deals with the duties of conciliation officers.
Under section 12(1) the conciliation officer may hold conciliation proceedings in the prescribed manner where an industrial dispute exists or is apprehended.
In regard to an industrial dispute relating to a public utility service, where notice under section 22 has been given, the conciliation officer shall hold conciliation proceedings in respect of it.
The effect of section 12(1) is that, whereas in regard to an industrial dispute not relating to a public utility service the conciliation officer is given the discretion either to hold conciliation proceedings or not, in regard to a dispute in respect of a public utility service, where notice has been given, he has no discretion but must hold conciliation proceedings in regard to it.
Section 12(2) requires the conciliation officer to investigate the dispute without delay with the object of bringing about a settlement, and during the course of his investigation he may examine all matters affecting the merits and the right settlement of the dispute and do all such things as he thinks fit for the purpose of inducing the parties to come to a fair and amicable settlement.
The duty and function of the conciliation officer is as his very name indicates, to mediate between the parties and make an effort at conciliation so as to persuade them to settle their disputes amicably between themselves.
If the conciliation officer succeeds in his mediation section 12(3) requires him to make a report of such settlement together with the memorandum of the settlement signed by the parties to the dispute.
Section 18(3) provides that a settlement arrived at in the course of conciliation proceedings shall be binding on the parties specified therein.
It would thus be seen that if the attempts made by the conciliation officer to induce the parties to come to a settlement succeeds and a settlement is signed by them 235 it has in substance the same binding character as an award under section 18(3).
Sometimes efforts at conciliation do not succeed either because one of the parties to the dispute refuses to co operate or they do not agree as to the terms of settlement.
In such cases the conciliation officer has to send his report to the appropriate Government under section 12(4).
This report must set forth the steps taken by the officer for ascertaining the facts and circumstances relating to the dispute and for bringing about a settlement thereof together with a full statement of such facts and circumstances and the reasons on account of which in his opinion a settlement could not be arrived at.
The object of requiring the conciliation officer to make such a full and detailed report is to apprise the Government of all the relevant facts including the reasons for the failure of the conciliation officer so that the Government may be in possession of the relevant material on which it can decide what course to adopt under section 12(5).
In construing section 12(5), therefore, it is necessary to bear in mind the background of the steps which the conciliation officer has taken under section 12(1) to (4).
The conciliation officer has held conciliation proceedings, has investigated the matter, attempted to mediate, failed in his effort to bring about a settlement between the parties, and has made a full and detailed report in regard to his enquiry and his conclusions as to the reasons on account of which a settlement could not be arrived at.
Section 12(5) with which we are concerned in the present appeals provides that if, on a consideration of the report referred to in subsection (4), the appropriate Government is satisfied that there is a case for reference to a Board, Labour Court, Tribunal or National Tribunal, it may make such reference.
Where the appropriate Government does not make such a reference it shall record and communicate to the parties concerned its reasons therefore.
This section requires the appropriate Government to consider the report and decide whether a case for reference has been made out.
If the Government is satisfied that a case for reference has been made out it may make such 236 reference.
If it is satisfied that a case for reference has not been made out it may not make such a reference; but in such a case it shall record and communicate to the parties concerned its reasons for not making the reference which in the context means its reasons for not being satisfied that there is a case for reference.
The High Court has held that the word " may in the first part of section 12(5) must be construed to mean shall " having regard to the fact that the power conferred on the Government by the first part is coupled with a duty imposed upon it by the second part.
The appellant and the company both contend that this view is erroneous.
According to them the requirement that reasons shall be recorded and communicated to the parties for not making a reference does not convert " may " into " shall " and that the discretion vesting in the Government either to make a reference or not to make it is as wide as it is under section 10(1) of the Act.
Indeed their contention is that, even after receiving the report, if the Government decides to make a reference it must act under section 10(1) for that is the only section which confers power on the appropriate Government to make a reference.
It is true that section 12(5) provides that the appropriate Government may make such reference and in that sense it may be permissible to say that a power to make reference is conferred on the appropriate Government by section 12(5).
The High Court was apparently inclined to take the view that in cases falling under section 12(5) reference can be made only under section 12(5) independently of section 10(1).
In our opinion that is not the effect of the provisions of section 12(5).
If it is held that in cases falling under section 12(5) reference can and should be made only under section 12(5) it would lead to very anomalous consequences.
Section 10(3) empowers the appropriate Government by an order to prohibit the continuance of any strike or lock out in connection with an industrial dispute which may be in existence on the date of the reference, but this power is confined only to cases where industrial disputes are referred under section 10(1).
It would thus be clear that if a reference is made only under section 12(5) independently of 237 s.10(1) the appropriate Government may have no power to prohibit the continuance of a strike in connection with a dispute referred by it to the tribunal for adjudication ; and that obviously could not be the intention of the Legislature.
It is significant that sections 23 and 24 prohibit the commencement of strikes and lock outs during the pendency of proceedings there ' in specified, and so even in the case of a reference made under section 12(5) it would not be open to the employer to declare a lock out or for the workmen to go on strike after such a reference is made ; but if a strike has commenced or a lock out has been declared before such a reference is made, there would be no power in the appropriate Government to prohibit the continuance of such a strike or such a lock out.
Section 24(2) makes it clear that the continuance of a lock out or strike is deemed to be illegal only if an order prohibiting it is passed under section 10(3).
Thus the power to maintain industrial peace during adjudication proceedings which is so essential and which in fact can be said to be the basis of adjudication proceedings is exercisable only if a reference is made under section 10(1).
What is true about this power is equally true about the power conferred on the appropriate Government by section 10(4), (5), (6) and (7).
In other words, the material provisions contained in sub sections
(3) to (7) of section 10(1) which are an integral Dart of the scheme of reference prescribed by Chapter III of the Act clearly indicate that even if the appropriate Government may be acting under section 12(5) the reference must ultimately be made under section 10(1).
Incidentally it is not without significance that even in the petition made by the respondents in the present proceedings they have asked for a writ of mandamus calling upon the appellant to make a reference under sections 10(1) and 12(5).
Besides, even as a matter of construction, when section 12(5) provides that the appropriate Government may make such reference it does not mean that this provision is intended to confer a power to make reference as such.
That power has already been conferred by section 10(1); indeed section 12(5) occurs in a Chapter dealing with the procedure, powers and duties of the 238 authorities under the Act; and it would be legitimate to hold that section 12(5) which undoubtedly confers power on the appropriate Government to act in the manner specified by it, the power to make a reference which it will exercise if it comes to the conclusion that a case for reference has been made must be found in section 10(1).
In other words, when section 12(5) says that the Government may make such reference it really means it may make such reference under section 10 (1).
Therefore it would not be reasonable to hold that section 12(5) by itself and independently of section 10(1) confers power on the appropriate Government to make a reference.
The next point to consider is whether, while the appropriate Government acts under section 12(5), it is bound to base its decision only and solely on a consideration of the report made by the conciliation officer under section 12(4).
The tenor of the High Court 's judgment may seem to suggest that the only material on which the conclusion of the appropriate Government under section 12(5) should be based is the said report.
There is no doubt that having regard to the back ground furnished by the earlier provisions of section 12 the appropriate Government would naturally consider the report very carefully and treat it as furnishing the relevant material which would enable it to decide whether a case for reference has been made or not; but the words of section 12(5) do not suggest that the report is the only material on which Government must base its conclusion.
It would be open to the Government to consider other relevant facts which may come to its knowledge or which may be brought to its notice, and it is in the light of all these relevant facts that it has to come to its decision whether a reference should be made or not.
The problem which the Government has to consider while acting under section 12(5)(a) is whether there is a case for reference.
This expression means that Government must first consider whether a prima facie case for reference has been made on the merits.
If the Government comes to the conclusion that a prima facie case for reference has been made then it would be open to the Government also to con sider whether there are any other relevant or material 239 facts which would justify its refusal to make a reference.
The question as to whether a case for reference has been made out can be answered in the light of all the relevant circumstances which would have a bearing on the merits of the case as well as on the incidental question as to whether a reference should nevertheless be made or not.
A discretion to consider all relevant facts which is conferred on the Government by section 10(1) could be exercised by the Government even in dealing with cases under section 12(5) provid ed of course the said discretion is exercised bona fide, its final decision is based on a consideration of relevant facts and circumstances, and the second part of section 12(5) is complied with.
We have already noticed that section 12 deals with the conciliation proceedings in regard to all industrial dis putes, whether they relate to a public utility service or not.
Section 12(1) imposes an obligation on the con ciliation officer to hold conciliation proceedings in regard to an industrial dispute in respect of public utility service provided a notice under section 22 has been given.
If in such a dispute the efforts at conciliation fail and a failure report is submitted under section 12(4) Government may have to act under section 12(5) and decide whether there is a case for reference.
Now, in dealing with such a question relating to a public utility service considerations prescribed by the second proviso to section 10(1) may be relevant, and Government may be justified in refusing to make a reference if it is satisfied that the notice given is frivolous or vexatious or that reference would be inexpedient.
Just as discretion conferred on the Government under section 10(1) can be exercised by it in dealing with industrial disputes in regard to non public utility services even when Government is acting under section 12(5), so too the provisions of the second proviso can be pressed into service by the Government when it deals with an industrial dispute in regard to a public utility service under section 12(5).
It would, therefore, follow that on receiving the failure report from the conciliation officer Government would consider the report and other relevant material 240 and decide whether there is & case for reference.
If it is satisfied that there is such & case for reference it may make a reference.
If it does not make a reference it shall record and communicate to the parties concerned its reasons therefore.
The question which arises at this stage is whether the word " may " used in the context means " shall ", or whether it means nothing more than " may " which indicates that the discretion is in the Government either to refer or not to refer.
It is urged for the respondent that where power is conferred on an authority and it is coupled with the performance of & duty the words conferring power though directory must be construed as mandatory.
As Mr. Justice Coleridge has observed in Beg. vs Tithe Commissioners (1)." The words undoubtedly are only empowering; but it has been so often decided as to have become an axiom, that, in public statutes, words only directory, permissory or enabling may have & compulsory force where the thing to be done is for the public benefit or in advancement of public justice ".
The argument is that section 12(5) makes it obligatory on the Government to record and communicate its reasons for not making the reference and this obligation shows that the power to make reference is intended to be exercised for the benefit of the party which raises an industrial dispute and wants it to be referred to the authority for decision.
It may be that the Legislature intended that this requirement would avoid casual or capricious decisions in the matter because the recording and communication of reasons postulates that the reasons in question must stand public examination and scrutiny and would therefore be of such a character as would show that the question was carefully and properly considered by the Government; but that is not the only object in making this provision.
The other object is to indicate that an obligation or duty is cast upon the Government, and since the power conferred by the first part is coupled with the duty prescribed by the second part " may " in the context must mean " shall ".
There is considerable force in (1) ; , 474 : ; , 185.241 this argument.
Indeed it has been accepted by the High Court and it has been held that if the Government is satisfied that there is a case for reference it is bound to make the reference.
On the other hand, if the power to make reference is ultimately to be found in section 10(1) it would not be easy to read the relevant portion of section 12(5) as imposing an obligation on the Government to make a reference.
Section 12(5) when read with section 10(1) would mean, according to the appellant, that, even after considering the question, the Government may refuse to make a reference in a proper case provided of course it records and communicates its reasons for its final decision.
In this connection the appellant strongly relies on the relevant provisions of section 13.
This section deals with the duties of Boards and is similar to section 12 which deals with conciliation officers.
A dispute can be referred to a Board in the first instance under section 10(1) or under section 12(5) itself.
Like the conciliation officer the Board also endeavours to bring about a settlement of the dispute.
Its powers are wider than those of a conciliator but its function is substantially the same; and so if the efforts made by the Board to settle the dispute fail it has to make a report under section 13(3).
Section 13(4) provides that if on receipt of the report made by the Board in respect of a dispute relating to a public utility service the appropriate Government does not make a reference to a Labour Court, Tribunal or National Tribunal under section 10, it shall record and communicate to the parties concerned its reasons therefore.
The provisions of section 13 considered as a whole clearly indicate that the power to make a reference in regard to disputes referred to the Board are undoubtedly to be found in section 10(1).
Indeed in regard to disputes relating to non public utility services there is no express provision made authorising the Government to make a reference, and even section 13(4) deals with a case where no reference is made in regard to a dispute relating to a public utility service which means that if a reference is intended to be made it would be under the second proviso to section 10(1).
Incidentally this fortifies the conclusion that whenever 31 242 reference is made the power to make it is to be found under section 10(1).
Now, in regard to cases falling under section 13(4) since the reference has to be made under section 10 there can be no doubt that the considerations relevant under the second proviso to section 10(1) would be relevant and Government may well justify their refusal to make a reference on one or the other of the grounds specified in the said proviso.
Besides, in regard to disputes other than those falling under section 13(4) if a reference has to be made, it would clearly be under section 10(1).
This position is implicit in the scheme of section 13.
The result, therefore, would be that in regard to a dispute like the present it would be open to Government to refer the said dispute under section 12(5) to a Board,, and if the Board fails to bring about a settlement between the parties Government would be entitled either to refer or to refuse to refer the said dispute for industrial adjudication under section 10(1).
There can be no doubt that if a reference has to be made in regard to a dispute referred to a Board under section 13 section 10(1) would apply, and there would be no question of importing any compulsion or obligation on the Government to make a reference.
Now, if that be the true position under the relevant provisions of section 13 it would be difficult to accept the argument that a prior stage when Government is acting under section 12(5) it is obligatory on it to make a reference as contended by the respondent.
The controversy between the parties as to the construction of section 12(5), is, however, only of academic importance.
On the respondents ' argument, even if it is obligatory on Government to make a reference provided it is satisfied that there is a case for reference, in deciding whether or not a case for reference is made Government would be entitled to consider all relevant facts, and if on a consideration of all the relevant facts it is not satisfied that there is a case for reference it may well refuse to make a reference and record and communicate its reasons therefore.
According to the appellant and the company also though the discretion is with Government its refusal to make a reference can be justified only if it records and communicates its reasons therefore and it appears that the 243 said reasons are not wholly extraneous or irrelevant.
In other words, though there may be a difference of emphasis in the two methods of approach adopted by the parties in interpreting section 12(5) ultimately both of them are agreed that if in refusing to make a reference Government is influenced by reasons which are wholly extraneous or irrelevant or which are not germane then its decision may be open to challenge in a court of law.
It would thus appear that even the appellant and the Company do not dispute that if a consideration of all the relevant and germane factors leads the Government to the conclusion that there is a case for reference the Government must refer though they emphasise that the scope and extent of relevant consideration is very wide; in substance the plea of the respondents that " may " must mean " shall " in section 12(5) leads to the same result.
Therefore both the methods of approach ultimately lead to the same crucial enquiry : are the reasons recorded and communicated by the Government under section 12(5) germane and relevant or not ? It is common ground that a writ of mandamus would lie against the Government if the order passed by it under section 10(1) is for instance contrary to the provisions of section 10(1)(a) to (d) in the matter of selecting the appropriate authority ; it is also common ground that in refusing to make a reference under section 12(5) if Government does not record and communicate to the parties concerned its reasons therefore a writ of mandamus would lie.
Similarly it is not disputed that if a party can show that the refusal to refer a dispute is not bona fide or is based on a consideration of wholly irrelevant facts and circumstances a writ of mandamus would lie.
The order passed by the Government under section 12(5) may be an administrative order and the reasons recorded by it may not be justiciable in the sense that their propriety, adequacy or satisfactory character may not be open to judicial scrutiny ; in that sense it would be correct to say that the court hearing a petition for mandamus is not sitting in appeal over the decision of the Government : nevertheless if the court is satisfied that the reasons given 244 by the Government for refusing to make a reference are extraneous and not germane then the court can issue, and would be justified in issuing, a writ of mandamus even in respect of such an administrative order.
After an elaborate argument on the construction of section 12(5) was addressed to us it became clear that on this part of the case there was no serious dispute between the parties.
That is why we think the controversy as to the construction of section 12(5) is of no more than academic importance.
That takes us to the real point of dispute between the parties, and that is whether the reason given by the appellant in the present case for refusing to make a reference is germane or not.
The High Court has held that it is wholly extraneous and it has issued a writ of mandamus against the appellant.
We have already seen that the only reason given by the appellant is that the workmen resorted to go slow during the year 1952 53.
It would appear prima facie from the communication addressed by the appellant to the respondents that this was the only reason which weighed with the Government in declining to refer the dispute under section 12(5).
It has been strenuously urged before us by the appellant and the company that it is competent for the Government to consider whether it would be expedient to refer a dispute of this kind for adjudication.
The argument is that the object of the Act is not only to make provision for investigation and settlement of industrial disputes but also to secure industrial peace so that it may lead to more production and help national economy.
Co operation between capital and labour as well as sympathetic understanding on the part of capital and discipline on the part of labour are essential for achieving the main object of the Act; and so it would not be right to assume that the Act requires that every dispute must necessarily be referred to industrial adjudication.
It may be open to Government to take into account the facts that the respondents showed lack of discipline in adopting go slow tactics, and since their conduct during a substantial part of the relevant year offended against the standing orders that was a fact which 245 was relevant in Considering whether the present dispute should be referred to industrial adjudication or not.
On the other hand, the High Court has held that the reason given by the Government is wholly extraneous and its refusal to refer the dispute is plainly punitive in character and as such is based on considerations which are not at all germane to section 12(5).
This Court has always expressed its disapproval of breaches of law either by the employer or by the employees, and has emphasised that while the employees may be entitled to agitate for their legitimate claims it would be wholly wrong on their part to take recourse to any action which is prohibited by the standing orders or statutes or which shows wilful lack of discipline or a concerted spirit of non co operation with the employer.
Even so the question still remains whether the bare and bald reason given in the order passed by the appellant can be sustained as being germane or relevant to the issue between the parties.
Though considerations of expediency cannot be excluded when Government considers whether or not it should exercise its power to make a reference it would not be open to the Government to introduce and rely upon wholly irrelevant or extraneous considerations under the guise of expediency.
It may for instance be open to the Government in considering the question of expediency to enquire whether the dispute raises a claim which is very stale, or which is opposed to the provisions of the Act, or is inconsistent with any agreement between the parties, and if the Govern ment comes to the conclusion that the dispute suffers from infirmities of this character, it may refuse to make the reference.
But even in dealing with the question as to whether it would be expedient or not to make the reference Government must not act in a punitive spirit but must consider the question fairly and reasonably and take into account only relevant facts and circumstances.
In exercising its power under section 10(1) it would not be legitimate for the Government for instance to say that it does not like the appearance, behaviour or manner of the secretary of the union, or even that it disapproves of the political 246 affiliation of the union, which has sponsored the dispute.
Such considerations would be wholly extraneous and must be carefully excluded in exercising the wide discretion vested in the Government.
In the present case it is significant that the company has voluntarily paid three months bonus for the relevant year not withstanding the fact that the workmen had adopted go slow tactics during the year, and the report of the conciliator would show prima facie that he thought that the respondents ' claim was not at all frivolous.
The reasons communicated by the Government do not show that the Government was influenced by any other consideration in refusing to make the reference.
It is further difficult to appreciate how the misconduct of the respondents on which the decision of the Government is based can have any relevance at all in the claim for the classification of the specified employees which was One of the items in dispute.
If the work done by these employees prima facie justified the claim and if as the conciliator 's report shows the claim was in Consonance with the practice prevailing in other comparable concerns the misconduct, of the respondents cannot be used as a relevant circumstance in refusing to refer the dispute about classification to industrial adjudication.
It was a claim which would have benefited the employees in future and the order passed by the appellant deprives them of that benefit in future.
Any considerations of discipline cannot, in our opinion, be legitimately allowed to impose such a punishment on the employees.
Similarly even in regard to the claim for bonus, if the respondents are able to show that the profits earned by the company during the relevant year compared to the profits earned during the preceding years justified their demand for additional bonus it would plainly be a punitive action to refuse to refer such a dispute solely on the ground of their misconduct.
In this connection it may be relevant to remember that for the said misconduct the company did take disciplinary action as it thought fit and necessary, and yet it paid the respondents bonus to which it thought they were entitled.
Besides, in considering the question 247 as to whether a dispute in regard to bonus should be referred for adjudication or not it is necessary to bear in mind the well established principles of industrial adjudication which govern claims for bonus.
A claim for bonus is based on the consideration that by their contribution to the profits of the employer the employees are entitled to claim a share in the said profits, and so any punitive action taken by the Government by refusing to refer for adjudication an industrial dispute for bonus would, in our opinion, be wholly inconsistent with the object of the Act.
If the Government had given some relevant reasons which were based on, or were the consequence of, the misconduct to which reference is made it might have been another matter.
Under these circumstances we are unable to bold that the High Court was in error in coming to the conclusion that the impugned decision of the Government is wholly punitive in character and must in the circumstances be treated as based on a consideration which is not germane and is extraneous.
It is clear that the Act has been passed in order to make provision for the investigation and settlement of industrial disputes, and if it appears that in cases falling under section 12(5) the investigation and settlement of any industrial dispute is prevented by the appropriate Government by refusing to make a reference on grounds which are wholly irrelevant and extraneous a case for the issue of a writ of mandamus is clearly established.
In the result we confirm the order passed by the High Court though not exactly for the same reasons.
The appeals accordingly fail and are dismissed with costs, one set of hearing fees.
Appeals dismissed.
| The appellants, a Hindu undivided family, carrying on business in the former State of Mysore, were assessed under the Mysore Income tax Act for the year of assessment 1949 50 corresponding to the year of account July 1, 1948, to June 30, 1949.
The Indian Income tax Act came into force in that area in April 1, 1950, and on December 26, 1950, notice under section 22(2) of that Act was served upon the appellants to submit their return for the assessment year 1950 51.
On September 8, 1952, the appellants submitted their return stating that they had no assessable income for that year.
The Income Tax Officer passed on that return an order, "no proceeding", and closed the assessment.
When the appellants submitted their return for the next assessment year, their books of account disclosed an opening cash credit balance of Rs. 1,87,000 and odd on July 1. 1949.
They failed to produce the books of account of the previous years, and the Income tax Officer held that Rs. 1,37,000 out of the said opening balance represented income from an undisclosed source.
The appellants submitted a fresh return for the assessment year 1950 51 purporting to do so under section 22(3) of the Indian Incometax Act.
Pursuant to the direction of the Appellate Assistant Commissioner, the Income Tax Officer on October 15, 1957, served on the appellants a notice under section 34 of the Act and thereupon the appellants moved the High Court under article 226 for an order quashing the said notice and the proceeding as without jurisdiction.
The High Court dismissed the petition.
Held, that it was not correct to say that the issue of the notice for reassessment was without jurisdiction as the assessment was yet pending.
Under section 23(1) of the Indian Income tax Act, it is open to the Income tax Officer, if he is satisfied as to correctness of the return filed by the assessee, to assess the income and determine the sum payable on the basis of the return without requiring the assessee either to be present or to Produce evidence.
The order 'no proceeding recorded on the.
return must, therefore, mean that the Income Tax Officer bad accepted the previous return and assessed the income as nil.
A revised return under section 22(3) filed by the assessee may be 912 entertained only before the order of assessment and not thereafter.
Lodging of such a return after the assessment is no bar to reassessment under section 34(1) of the Act.
It could not be said, having regard to the provisions of section 13(1) of the Finance Act (XXV of 1950) and cl.
5(1) of Part.
B States (Taxation Concessions) Order 1950, issued by the Central Government under section 60A of the Indian Income tax Act, that for the assessment year 1950 51 the appellants were assessable under the Mysore Income tax Act and not under the Indian Income tax Act.
|
Appeal No. 395 of 1959.
Appeal by special leave from the Award dated November 25, 1957 of the Industrial Tribunal, Bombay, in Reference (I. T.) No. 24 of 1956.
N. C. Chatterjee, D. H. Buch and K. L. Hathi, for the appellants.
M. C. Setalvad, Attorney General for India, J. B. Dadachanji and section N. Andley, for the respondent Nos. 1 and 2.
M. C. Setalvad, Attorney General for India, Dewan Chaman Lal Pandhi and I. N. Shroff, for the respondent No. 3. 1960.
November 30.
The Judgment of the Court was delivered by WANCHOO, J.
This is an appeal by special leave in an industrial matter.
It appears that the appellants were originally in the service of the Scindia Steam Navigation Co. Ltd. (hereinafter called the Scindias).
Their services were transferred by way of loan to the Air Services of India Limited (hereinafter referred to as the ASI).
The ASI was formed in 1937 and was 813 purchased by the Scindias in 1943 and by 1946 was a full subsidiary of the Scindias.
Therefore from 1946 to about 1951, a large number of employees of the, Scindias were transferred to the ASI for indefinite periods.
The Scindias had a number of subsidiaries and it was usual for the Scindias to transfer their employees to their subsidiary companies and take them back whenever they found necessary to do so.
The ' appellants who were thus transferred to the ASI were to get the same scale of pay as the employees of the Scindias and the same terms and conditions of service (including bonus whenever the Scindias paid it) were to apply.
The Scindias retained the right to recall these loaned employees and it is the case of the appellants that they were entitled to go back to the Scindias if they so desired.
Thus the terms and conditions of service of these loaned employees of the ASI were different from those employees of the ASI who were recruited by the ASI itself.
This state of affairs continued till 1952 when the Government of India contemplated nationalisation of the existing air lines operating in India with effect from June 1953 or thereabouts.
When legislation for this purpose was on the anvil the appellants felt perturbed about their status in the ASI which was going to be taken over by the Indian Air Lines Corporation (hereinafter called the Corporation), which was expected to be established after the , No. XXVII of 1953, (hereinafter called the Act) came into force.
They therefore addressed a letter to the Scindias on April 6, 1953, requesting that as the Government of India intended to nationalise all the air lines in India with effect from 1 June, 1953, or subsequent thereto, they wanted to be taken back by the Scindias.
On April 24, the Scindias sent a reply to this letter in which they pointed out that all persons working in the ASI would be governed by cl. 20 of the Air Corporation Bill of 1953, when the Bill was enacted into law.
It was also pointed out that this clause would apply to all those actually working with the ASI on 103 814 the appointed day irrespective of whether they were recruited by the ASI directly or transferred to the ASI from the Scindias or other associated concerns.
It was further pointed out that if the loaned employees or others, employed under the 'ASI, did not want to join ,the proposed Corporation they would have the option not to do so under the proviso to cl.
20(1) of the 'Bill; but in case any employee of the ASI whether loaned or otherwise made the option not to join the proposed Corporation, the Scindias would treat them as having resigned from service, as the Scindias could not absorb them.
In that case such employees would be entitled only to the usual retirement benefits and would not be entitled to retrenchment compensation.
Finally, it was hoped that all those in the employ of the ASI, whether loaned or otherwise, having been guaranteed continuity of employment in the new set up would see that the Scindias would not be burdened with surplus staff, requiring consequential retrenchment of the same or more junior personnel by the Scindias.
On April 29, 1953, a reply was sent by the union on behalf of the appellants to the Scindias.
It was pointed out that the loaned staff should not be forced to go to the proposed Corporation without any consideration of their claim for re absorption into the Scindias.
It was suggested that the matter might be taken up with the Government of India and the persons directly recruited by the ASI who were with other subsidiary companies might be taken by the proposed Corporation in place of the appellants.
It seems that this suggestion was taken up with the Government of India but nothing came out of it, particularly because the persons directly recruited by the ASI.
who were employed in other subsidiary companies did not want to go back to the ASI.
In the meantime, the Scindias issued a circular on May 6,1953, to all the employees under the ASI including the loaned employees, in which they pointed out that all the persons working with the ASI would be governed by cl.
20(1) when the Bill became law and would be absorbed in the proposed Corporation, unless 815 they took advantage of the proviso to cl.
20(1).
It was also pointed out that such employees as took advantage of the proviso to el.
20(1) would be treated as having resigned from service and would be entitled to usual retirement benefits as on voluntary retirement, and to nothing more.
It was also said that their conditions of service would be the same until duly altered or amended by the proposed Corporation.
The circular then dealt with certain matters relating to provident fund with which we are however not concerned.
It appears that the Act was passed on May 28, 1953.
20(1) of the Act, with which we are concerned, is in these terms: "(1) Every officer or other employee of an existing air company (except a director, managing agent, manager or any other person entitled to manage the whole or a substantial part of the business and affairs of the company under a special agreement) employed by that company prior to the first day of July, 1952, and still in its employment immediately before the appointed day shall, in so far as such officer or other employee is employed in connection with the undertaking which has vested in either of the Corporations by virtue of this Act, become as from the appointed date an officer or other employee, as the case may be, of the Corporation in which the undertaking has vested and shall hold his office or service therein by the same tenure, at the same remuneration and upon the same terms and conditions and with the same rights and privileges as to pension and gratuity and other matters as he would have held the same under the existing air company if its undertaking had not vested in the Corporation and shall continue to do so unless and until his employment in the Corporation is terminated or until his remuneration, terms or conditions are duly altered by the Corporation : Provided nothing contained in this section shall apply to any officer or other employee who has, by notice in writing given to the Corporation concerned prior to such date as may be fixed by the Central Government by notification in the official gazette 816 intimated his intention of not becoming an officer or other employee of the Corporation." After the Act was passed, notice was sent on June 17, 1953, to each employee of all the air companies which were being taken over by the proposed Corporation m and he was asked to inform the officer on special duty by July 10, 1953, if he desired to give the notice contemplated by the proviso to section 20(1).
A form was sent in which the notice was to be given and it was ordered that it should reach the Chairman of the Corporation by registered post by July 10.
The appellants admittedly did not give this notice as required by the proviso to section 20(1).
In the meantime on June 8, 1953, a demand was made on behalf of the appellants in which the Scindias were asked to give an assurance to them that in the event of retrenchment of any loaned staff by the proposed Corporation within the first five years without any fault, the said staff would be taken back by the Scindias.
Certain other demands were also made.
The Scindias replied to this letter on July 3 and pointed out that they could not agree to give an assurance to take back the loaned staff in case it was retrenched by the proposed Corporation within the next five years.
We are not concerned with the other demands and the replies thereto.
On July 8, a letter was written on behalf of the appellants to the Scindias in which it was said that the appellants could not accept the contention contained in the circular of May 6, 1953.
Though the appellants were carrying on this correspondence with the Scindias, they did not exercise the option which was given to them under the proviso to section 20(1) of the Act,.
by July 10, 1953.
First of August, 1953, was notified the appointed day under section 16 of the Act and from that date the undertakings of the "existing air companies" vested in the Corporation established under the Act (except the Air India International).
So on August:1, 1953, the ASI vested in the Corporation and section 20(1) of the Act came into force.
Hence as none of the appellants had exercised the option given to them under the proviso, they would also be governed by the said provision, 817 unless the contention.
raised on their behalf that they could in no case be governed by section 20(1), is accepted.
The tribunal came to the conclusion that, whatever the position of the appellants as loaned staff from the Scindias to the ASI, as they were informed on May 6, 1953, of the exact position by the Scindias and they did not ask for a reference of an industrial dispute immediately thereafter with the Scindias and as they" ' did not exercise the option given to them by the proviso to section 20(1) before July 10, 1953, they would be governed by section 20(1) of the Act.
In consequence, they became the employees.
of the Corporation as from August 1, 1953 and would thus have no right there after to claim that they were still the employees of the Scindias and had a right to revert to them.
The consequence of all this was that they were held not to be entitled to any of the benefits which they claimed in the alternative according to the order of reference.
It is this order of the tribunal rejecting the reference which has been impugned before us in the present appeal.
The main contention of Mr. Chatterjee on behalf of the appellants is that they are not governed by section 20 (1) of the Act and in any case the contract of service between the appellants and the Scindias was not assignable and transferable even by law and finally that even if section 20(1) applied, the Scindias were bound to take back the appellants.
We are of opinion that there is no force in any of these contentions.
20(1) lays down that every officer or employee of the "existing air companies" employed by them prior to the first day of July, 1952, and still in their employment immediately before the appointed day shall become as I from the appointed day an officer or employee, as the case may be, of the Corporation in which the undertakings are vested.
The object of this provision was to ensure continuity of service to the employees of the "existing air companies" which were being taken over by the Corporation and was thus for the benefit of the officers and employees concerned.
It is further provided in section 20(1) that the terms of service etc. would be the same until they are duly altered by the Corporation.
One should have thought that the employees of the air 818 companies would welcome this provision as it ensured them continuity of service on the same terms till they were duly altered.
Further there was no compulsion on the employees or the officers of the "existing air companies" to serve the Corporation if they did not want to do so.
The proviso laid down that any officer or other employee who did not want to go into the service of the Corporation could get out of service by notice in writing given to the Corporation before the date fixed, which was in this case July 10, 1953.
Therefore, even if the argument of Mr. Chatterjee that the contract of service between the appellants and their employers had been transferred or assigned by this section and that this could not be done,, be correct, it loses all its force, for the proviso made it clear that any one who did not want to join the Corporation, was free not to do so, after giving notice upto a certain date.
Mr. Chatterjee in this connection relied on Nokes vs Doncaster Amalgamated Collieries Ltd. where it was observed at p. 1018 "It is, of course, indisputable that (apart from statutory provision to the contrary) the benefit of a contract entered into by A to render personal service to X cannot be transferred by X to Y without A 's consent, which is the same thing as saying that, in order to produce the desired result,, the old contract between A and X would have to be terminated by notice or by mutual consent and a new contract of service entered into by agreement between A and Y." This observation itself shows that a contract of service may be transferred by a statutory provision; but in the present case, as we have already said, there was no compulsory transfer of the contract of service between the "existing air companies", and their officers and employees to the Corporation for each of them was given the option not to join the Corporation, if he gave notice to that effect.
The provision of section 20(1) read with the proviso is a perfectly reasonable provision and, as a matter of fact, in the interest of employees themselves.
But, Mr. Chatterjee argues that section 20(1) will only apply to those who were in the employ of the "existing air companies"; it would not (1) , 819 apply to those who might be working for the "existing air companies" on being loaned from some other company.
In other words, the argument is that the, appellants were in the employ not of the ASI but of the Scinaias and therefore section 20(1) would not apply to them and they would not become the employees of the Corporation by virtue of that provision when they failed to exercise the option given to them by the proviso.
According to him, only those employees of the ASI who were directly recruited by it, would be covered by section 20(1).
We are of opinion that this argument is fallacious.
It is true that the appellants were not originally recruited by the ASI.
They were recruited by the Scindias and were transferred on loan to the ASI on various dates from 1946 to 1951.
But for the purposes of section 20(1) we have to see two things: namely, (i) whether the officer or employee was employed by the existing air company on July 1, 1952, and (ii) whether he was still in its employment on the appointed day, (namely, August 1,1953).
Now it is not disputed that the appellants were working in fact for the ASI on July 1, 1952, and were also working for it on August 1, 1953.
But it is contended that though they were working for the ASI they were still not in its employment in law and were in the employment of the Scindias because at one time they had been loaned by the Scindias to the ASI.
Let us examine the exact position of the appellants in order to determine whether they were in the employ of the ASI or not.
It is not disputed that they were working for the ASI and were being paid by it; their hours of work as well as control over their work was all by the ASI.
From this it would naturally follow that they were the employees of the ASI, even though they might not have been directly recruited by it.
It is true that there were certain special features of their employment with the ASI.
These special features were that they were on the same terms and conditions of service as were enjoyed by the employees of the Scindias in the matter of remuneration, leave, bonus, etc.
It may also be that they could not be, dismissed by the ASI and the Scindias may have had to take action in case it was 820 desired to dismiss them.
Further it may be that they could be recalled by the Scindias and it may even be that they might have the option to go back to the Scindias.
But these are only three special terms of their employment with the ASI.
Subject to these special terms, they would for all purposes be the employees of the ASI and thus would in law be in the employment of the ASI both on July 1, 1952 and on August 1, 1953.
The existence of these special terms in the case of these appellants would not in law make them any the less employees of the ASI, for whom they were working and who were paying them, who had power of control and direction over them; who would grant them leave, fix their hours of work and so on.
There can in our opinion be no doubt that subject to these special terms the appellants were in the employ of the ASI in law.
They would therefore be in the employ of the ASI prior to July 1, 1952 and would still be in its employ immediately before August 1, 1953.
Consequently, they would clearly be governed by section 20(1).
As they did not exercise the option given to them by the proviso to section 20(1), they became the employees of the Corporation from August 1, 1953, by the terms of the statute.
The last point that has been urged is that even if section 20(1) applies, the Scindias are bound to take back the appellants.
Suffice it to say that there is no force in this contention either.
As soon as the appellants became by force of law the employees of the Corporation, as they did so become on August 1, 1953, in the circumstances of this case, they had no further right against the Scindias and could not; claim to be taken back in their employment on the ground that they were still their employees, in spite of the operation of section 20(1) of the Act.
Nor could they claim any of the alternative benefits specified in the order of reference, as from August 1, 1953, they are by operation of law only the employees of the Corporation and can have no rights whatsoever against the Scindias.
We are therefore of opinion that the tribunal 's decision is correct.
The appeal fails and is thereby dismissed.
There will be no order as to costs.
Appeal dismissed.
| Section 20(1) of the (XXVII of 1953), read with the proviso, is a perfectly reasonable provision and in the interest of the employees and it is not correct to say that it can apply only to the direct recruits of the existing air 812 companies and not at all to loaned employees working under them.
The two conditions of its applications are (i) that the officer or employee was employed by the existing air company on July 1, 1952, and (ii) that he was still in its employment on August 1, 1953, the appointed day.
In the instant case where the appellants who had been recruited by the Scindia Steam Navigation Co., Ltd., and on purchase by it of the Air Services of India Ltd., loaned to the latter, and were working under its direction and control on and between the said dates and being paid by it, Held, that in law they were the employees of the Air Ser vices of India from the appointed day, notwithstanding the existence of certain special features of their employment, and as such governed by section 20(1) of the Act and since they did not exercise the option given to them under the proviso, they became employees of the Corporation established under the Act and ceased to have any rights against the original employers.
Nokes vs Doncaster Amalgamated Collieries Ltd., [1940] A.C. 1014, considered.
|
: Special Leave Petition (Crl.) No. 405 of 1980.
Appeal by special leave from the judgment and Order dated 31 10 1979 of the Punjab & Haryana High Court in Crl.
Appeal No. 986/77.
N. C. Talukdar, Shrinath Singh and M. section Dhillon for the Petitioner.
The Judgment of the Court was delivered by DESAI, J.
While we decline to grant special leave in this case, an unsavoury feature of the judgment which rather stares into our 1154 face, and surfaces at regular intervals, makes it obligatory to make a few observations.
Petitioner was convicted for having committed offences under Section 161 of the I.P.C. and Section 5(2) of the Prevention of Corruption Act and was sentenced to suffer R.I. for one year on each count and on the second count, also to pay a fine of Rs. 400/ or in default to suffer further R.I. for three months by the learned Special Judge.
Both the Substantive sentences of imprisonment were directed to run concurrently.
Petitioner preferred Criminal Appeal No. 989 of 1977 against his conviction and sentence to the High Court of Punjab and Haryana at Chandigarh.
This appeal came up for final hearing before a learned single judge of the High Court on 31st October, 1979.
When the appeal was taken up for hearing, learned counsel for the petitioner appearing in the High Court did not question either the correctness or the legality of the conviction.
This is unquestionable as the High Court has observed while disposing of the appeal that "no arguments on merits are advanced".
The High Court then proceeded to consider adequacy or otherwise of sentence imposed on the appellant before it.
The High Court then proceeded to reduce the substantive sentence of the appellant of rigorous imprisonment for one year to the sentence undergone till the date of the judgment of the High Court.
While so reducing the substantive sentence the High Court noticed the following circumstances which in the opinion of the High Court were sufficient to enable it to interfere with the sentences imposed upon the present petitioner.
It would be advantageous to extract the relevant observations: "The learned counsel for the appellant has only submitted that the appellant has already been dismissed from service; that he is a family man, and that his sentence may be reduced to that already undergone.
In my view no useful purpose will be served by sending him again to jail to serve his unexpired period of sentence.
He has already lost his job.
The ends of justice will be amply met if his sentence of imprisonment is reduced to that already undergone and instead sentence of fine is enhanced from Rs. 400 to Rs. 4000 (four thousand) or in default to suffer further R.I. for one year.
I order accordingly.
" The judgment of the High Court throws no light on the question as to how much sentence the appellant had undergone by the time the 1155 High Court released him on bail while admitting his appeal.
But it cannot be more than a few days only.
Petitioner as pointed out earlier is convicted for committing offences under Section 161 IPC and 5(2) of the Prevention of Corruption Act.
Section 5(2) of the Prevention of Corruption Act reads as under: "Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine: Provided that the court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year." (underlining ours) The language of the proviso makes it abundantly clear that court is under an obligation to impose a minimum punishment once the conviction is recorded under Section 5(2) and the minimum punishment of imprisonment is for a term not less than one year.
Undoubtedly the proviso confers power on the Court to award less than the minimum punishment, if the Court convicting and sentencing the accused, is of the opinion that for any special reasons which the court is under an obligation to record in writing, sentence of imprisonment for a term less than the minimum is called for.
Conceding that the quantum of sentence is in the discretion of the trial court, where the Legislature stepped in and circumscribed and fettered the discretion by directing imposition of a minimum sentence, the court can exercise its discretion within the limited sphere left open by legislature.
The Legislature circumscribed the discretion by requiring the court to impose minimum sentence but left it open to award less than the minimum statutorily prescribed for special reasons.
The reasons have to be special reasons.
The words 'special reasons ' in the context in which they are used could only mean special to the accused on whom sentence is being imposed.
The court has to weigh reasons advanced in respect of each individual accused whose case is taken up for awarding sentence.
The word 'special ' has to be understood in contradistinction to word 'general ' or 'ordinary '.
Now what does term 'special ' connote ? "Special" means distinguished by some unusual quality; out of the ordinary.
(See Words and Phrases, Permanent Edition, Volume 39A p. 82.) Webster defines "special" as particular; peculiar; different from others; designed for a particular purpose, occasion, or person; limited in range; confined to a definite field of action.
Thus anything which is common to a large class 1156 governed by the same statute cannot be said to be special to each of them.
It would thus unquestionably appear that "special reasons" in the context of sentencing process must be special to the accused in the case or special to the facts and the circumstances of the case in which the sentence is being awarded.
The High Court then was under an obligation to award minimum sentence unless the accused advanced special reasons, i.e. special to him in the facts and circumstances of the case and successfully invoked the discretion vested in the Court to award less than the minimum sentence prescribed by law.
The Court observes that this appellant corrupt officer whose corruption was proved to its satisfaction because the High Court declined to interfere with the conviction of the appellant for corruption and who must consequently or of necessity be dismissed from service, considered his dismissal from service as a special reason.
Frankly speaking the High Court honestly did not expect any corrupt officer to be retained in service.
Ordinarily a corrupt official whose corruption is proved to the hilt is liable to be dismissed, and therefore, this aspect is not special to the appellant.
Accordingly if an officer proved to be corrupt to the satisfaction of the court is liable to be dismissed it cannot influence the question of sentence.
Also because it would be true of all public servants dealt with under Section 5(2) of the Prevention of Corruption Act.
Another special reason that appealed to the High Court is that appellant is a 'family man '.
Possibly the High Court considered marriage and children of the appellant as special to him.
An unusually large number of the Government officers from amongst those charged with corruption and convicted for the same would be married men with family, unless they joined service before marriage and became corrupt very soon at the inception of the career.
And ordinarily speaking a family of corrupt officer in some cases if not all benefits by the corrupt activity unless shown to the contrary which is not the case.
If large number of public servants from those convicted under section 5(2) of the Prevention of Corruption Act are married men with children it passes comprehension how this fact can be styled as special to the appellant influencing his sentence.
It may be mentioned without fear of contradiction that the only two reasons, special according to the High Court for awarding less than the minimum sentence are (i) appellant has lost his job and (ii) he is a married man with children.
These two reasons would be common to ninety nine per cent of cases tried under Prevention of Corruption Act and if they can be styled as special reasons for awarding less than the 1157 minimum sentence the proviso would be rendered wholly nugatory.
The Court should not be oblivious to the fact that while conferring discretion in the matter of awarding adequate sentence within limits prescribed by the statute, the Legislature finding cases of misplaced sympathy in sentencing process fettered the Court 's discretion by prescribing a minimum sentence and making it obligatory to record special reasons for awarding less than the minimum.
If still the notice of encroachments on court 's discretion is not taken, time may not be far when the Legislature out of exasperation may resort to what it has done in Section 16 of Prevention of Food Adulteration Act where minimum sentence is prescribed and Courts ' discretion to award less in any case is wholly taken away.
In this context it would be timely to recall the warning uttered by this Court in Jagdish Prasad vs West Bengal This Court said: "Offences under the Act being anti social crimes affecting the health and well being of our people, the Legislature having regard to the trend of courts to impose in most cases only fines or where a sentence of imprisonment was passed a light sentence was awarded even in cases where a severe sentence was called for, a more drastic step was taken by it in prescribing a minimum sentence and a minimum fine to be imposed even for a first offence.
" In this case, there was no justification, much less special reasons statutorily required, for awarding less than the minimum sentence.
stricto sensu Court exceeded its jurisdiction while interfering with the quantum of sentence.
And with this observation we dismiss the special leave petition.
S.R. Petition dismissed.
| The respondent was appointed on a purely temporary basis to the post of a medical Officer in the Oil and Natural Gas Commission.
Under the terms and conditions of service, he was to remain on probation for a period of one year which could be extended that the discretion of the appointing authority He was appointed on October 15, 1965.
During the period of his probation, on a report against him for negligence and dereliction of duty, a departmental enquiry was held against him but that was not proceeded with, nor was any punishment imposed on him.
His period of probation was extended for six months from 15 10 1966 and before his services were terminated, there was no express order either confirming him or extending the period of probation.
His services were terminated with effect from 28th July 1967.
The respondent filed a writ petition in the High court on the ground that the order terminating his services was malafide and was in fact passed by way of penalty entailing evil consequences The plea taken by the respondent found favour with the High Court which allowed the petition and quashed the order of the appellant terminating the services of the respondent.
Hence the appeal by special leave by the State.
Allowing the appeal the Court ^ HELD: l.
A temporary employee is appointed on probation for a particular period only in order to test whether his conduct is good and satisfactory so that he may be retained.
The remarks, the assessment roll merely indicate the nature of the performance put in by the officer for the limited purpose of determining whether or not his probation should be extended.
These remarks were not intended to cast any stigma.
[607G H. 608A] R. L. Butail vs Union of India followed 2.
The contention that the real motive behind the termination of the service of the respondent was to inflict a punishment on him and as the appellants did not comply with the requirements of Article 311 of the Constitution, the order impugned was illegal is not correct.
In the first place, it was clearly pleaded by the Government in its counter affidavit that although an enquiry was held it was not continued and no punishment was imposed on the respondent.
As the respondent was merely a probationer the appointing, authority did not consider it necessary to continue the enquiry but decided to terminate the services of the respondent as he was not found suitable for the job.
In the case of n probationer or a temporary employee.
who has no right to the post, such a termina 604 tion of his service is valid and does not attract the provisions of Article 311 of the Constitution [608C E, G H, 609A] Even if misconduct, negligence, inefficiency may be the motive or the inducing factor which influences the employer to terminate the services of the employee, a power which the appellants undoubtedly possessed, even so as under the terms of appointment of the respondent such power flowed from the R contract of service it could not be termed as penalty or Punishment.
[611C D] Shamsher Singh and Anr.
vs State of Punjab ; ; Purshottam Lal Dhingra vs Union of India ; ; State of U.P. vs Ram Chand Trivedi ; ; State of Maharashtra vs Veerappa R. Saboji and Anr. ; , followed.
The order impugned is prima facie an order of termination simpliciter without involving any stigma.
The order does not in any way involve any evil consequences and is an order of discharge simpliciter of the respondent who was a probationer and had no right to the service.
The respondent has not been able to make out any strong case for this Court to delve into the documents, materials in order to determine a case of victimisation or one of punishment The short history of the service of the respondent clearly showed that his work had never been satisfactory and he was not found suitable for being retained in service and that is why even though some sort of an enquiry was started, it was not proceeded with and no punishment was inflicted on him.
In these circumstances therefore, if the appointing authority considered it expedient to terminate the services of the respondent a probationer it cannot be said that the order of termination attracted the provisions of article 311 of the Constitution.
Thus, if the appellant found that the respondent was not suitable for being retained in service that will not vitiate the order impugned.
[611G H, 612B D] State of Bihar vs Gopi Kishore Parsad A.I.R. 1960, 689; distinguished.
|
Civil Appeal No. 3796 of 1984.
Appeal by Special leave from the Judgment and Order dated the 24th & 27th of September, 1982 of the Karnataka High Court in W.P. No. 1089 of 1981.
V.C. Mahajan, R.N. Foddar & N.S. Das Behi, for the Appellant.
A.K. Goel for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The question for consideration in this appeal by Special Leave is whether the Government of a State can be treated as the 'appropriate Government ' under section 2(a) of the (hereinafter referred to as 'the Act ') in relation to any industrial dispute concerning the office of the Regional Provident Fund organisation established by the Central Government for that State under the (hereinafter referred to as 'the Provident Funds Act ').
The facts of the case are these: The Government of Karnataka made a reference under section 10 of the Act referring a certain dispute between the Regional Provident Fund organisation established under the Provident Funds Act for the State of Karnataka and its employees to the Additional Industrial Tribunal, Bangalore and the said reference came to be registered as A.I.D. 3 of 1979 on the file of the Tribunal.
Before the Tribunal the Regional Provident Fund organisation raised among other pleas two preliminary objections to the reference viz. that the activity carried on by the management was not an industry and that the State Government was not the appropriate Government under the Act in relation to the dispute between it and its employees.
The Tribunal took up for consideration the two issues arising out of the above two objections first and after hearing the management and the workmen negatived both the contentions of the management.
819 It held that the business carried on by the Regional Provident Fund Organisation was an industry and that the State Government was the appropriate Government under the Act.
Aggrieved by the above findings of the Tribunal the management filed a writ petition under Article 226 of the Constitution before the High Court of Karnataka questioning the correctness of the said findings.
Before the learned Single Judge who heard the writ petition the management did not, however, press its case as regards the finding that the Provident Fund organisation was an industry.
The only contention urged by it was that the State Government being not the appropriate Government under the Act in so far as the dispute was concerned it could not refer the dispute under section 10 of the Act.
The learned Single Judge accepting the said contention of the management quashed the reference.
Aggrieved by the decision of the learned Single Judge, the workmen filed an appeal before the Division Bench of the High Court.
The Division Bench reversed the decision of the learned Single Judge and held that the State Government was the appropriate Government for purposes of the dispute in question.
The management has filed this appeal after observing the leave of this Court under Article 136 of the Constitution against the judgment of the Division Bench.
Under section 10 the Act, where the appropriate Government is of opinion that any industrial dispute exists or apprehended, it may at any time by order in writing refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule to the Act, to Tribunal for adjudication.
Section 2(a) of the Act defines the expression 'appropriate Government ' as in relation to any industrial dispute concerning any industry carried on by or under the authority of the Central Government or by the industries specified in clause (i) of section 2(a) of the Act, the Central Government and in relation to any other industrial dispute, the State Government.
It may be stated here that the organisation under the Provident Funds Act was not one of the industries specified in section 2(a)(i) of the Act when the reference was made in this case.
The contention of the management is that the industry in question falls under section 2(a)(i) of the Act as it is an industry carried on under the authority of the Central Government and hence the Central Government alone can act as the appropriate Government in relation to a dispute concerning it.
820 Entry 24 of the concurrent List in the Seventh Schedule to the Constitution specifically refers to the subject 'employees ' provident funds '.
The Central Government could have, if it intended to do so, started a provident funds scheme for the benefit of the workers in exercise of its executive power.
Before any such action was taken the subject of legislation for instituting compulsorily contributory funds in industrial undertakings was discussed several times at tripartite meetings in which representatives of the Central and State Governments and of employers and workers took part.
Ultimately it was decided that the Central Government should initiate appropriate legislation in Parliament for the said purpose.
Accordingly an ordinance was issued in 1951 incorporating the decisions arrived at such meetings.
Later on in 1952 the Provident Funds Act came to be passed replacing the ordinance.
The Provident Funds Act contemplates the administration of the Scheme framed under section 5, the Family Pension Scheme framed under section 6A and the Employees ' Deposit linked Insurance Scheme, under section 6C(1) of that Act.
The Provident Funds Act applies to the whole of India except the State of Jammu and Kashmir.
Under section 5A of the Provident Funds Act the Central Board of Trustees (hereinafter called 'the Central Board ') is constituted by the Central Government to administer, subject to the provisions of section 6A and section 6C, the fund vested in it in such manner as may be specified in the Scheme and to perform such other functions as it may be required to perform by or under the provisions of the Scheme, the Family Pension Scheme and the Insurance Scheme.
Under section 5B of the Provident Funds Act the Central Government may, after consultation with the Government of any State, by notification in the Official Gazette, constitute for that State a Board of Trustees which is for purpose of brevity referred to as the State Board in such manner as may be provided for in the Scheme.
The crucial provision in section 5B which, if we may say so with respect, has missed the attention of the Division Bench of the High Court is sub section (2) thereof.
It says that a State Board shall exercise such powers and perform such duties as the Central Government may assign to it from time to time.
Under Paragraph 4 of the Scheme framed under the Provident Funds Act, it is provided that until such time as a State Board is constituted for a State the Central Government may set up a Regional Committee for the State which will function under the Central Board.
There are three funds which are created by the Provident Funds Act.
They are (i) The Fund i.e. the Provident Fund 821 established under the Scheme, (ii) the Family Pension Fund established under the Family Pension Scheme and (iii) the Insurance Fund established under the Insurance Scheme.
They are not confined to ans particular State or Region.
Each of them is a fund into which the amount collected under the respective Schemes is credited irrespective of the State or the Region where they are collected.
Under Paragraph 54 of the Scheme all expenses relating to the administration of the fund including those incurred on Regional Committees have to be met from the Fund.
For purposes of the administration of the provident Funds Act, the appropriate Government in relation to an establishment belonging to or under the control of the Central Government or in relation to an establishment connected with a railway company, a major port, a mine or an oil field or a controlled industry or in relation to an establishment having department or branches in more than one State is the Central Government and in relation to any other establishment, the State Government under section 2(a) of the Provident Funds Act.
We are not concerned with this definition in this case as the question to be decided arises under the Act.
The Provident Funds Act and the Scheme clearly show that the Central Government has the final voice in many matters including appointments to various offices referred to therein.
It is not necessary to refer to then in detail here.
What has got to be determined in this case is whether the activity carried on under the Provident Funds Act is being carried on by or under the authority of the Central Government as provided in section 2(a) of the Act or not in order to decide whether the Central Government is the appropriate authority under the Act or not.
Section 2(a) of the Act came up for consideration by this Court in Heavy Engineering Mazdoor Union vs State of Bihar & Ors.
( ') The Court observed in that case that there being nothing to the contrary, the word 'authority ' in section 2(a) of the Act must be construed according to its ordinary meaning and therefore must mean a legal power given by one person to another to do an act.
The words 'under the authority of ' were construed by this Court in that case as meaning pursuant to the authority, such as where an agent or a servant acts under or pursuant to the authority of his principal or master.
Applying this test, the Court held that a manufacturing industry carried on by a company registered under 822 the authority of the Central Government even though the entire capital of the company had been contributed by the Central Government and under Articles of Association of the company the Central Government could exercise control over the affairs of the company.
The Court, however, proceeded to observe that the question whether a corporation is an agent of the State would depend upon the facts of each case.
It referred to the decision in Graham vs Public Works Commissioner(1) and said that where a statute setting up a Corporation so provided, such a Corporation could be easily identified as the agent of the State and that it was possible for the Crown with the consent of Parliament to appoint or establish certain officials or bodies who were to be treated as agents of the Crown even though they had the power of contracting as principals.
Merely because the officials of Government or certain bodies constituted by the Government for purposes of administration are given the garb of a statutory corporation they do not cease to be what they truly are.
At this stage it is appropriate to refer to certain observations made by Mathew, J. in Sukhdev Singh & Ors.
vs Bhagatram Sardar Singh Raghuvanshi & Anr.(2) on the true characteristics of public corporations established under a statute.
The learned Judge observed at page 646 thus: "A public corporation is a legal entity established normally by Parliament and always under legal authority, usually in the form of a special statute, charged with the duty of carrying out specified governmental functions in the national interest, those functions being confined to a comparatively restricted field, and subjected to control by the executive, while the corporation remains juristically an independent entity not directly responsible to parliament.
A public corporation is not generally a multi purpose authority but a functional organisation created for a specific purpose.
It has generally no shares or shareholders.
Its responsibility generally is to Government.
Its administration is in the hands of a Board appointed by the competent Minister.
The employees of public corporation are not civil servants.
It is in fact, 823 likely that in due course a special type of training for specialized form of public service will be developed and the status of the personnel of public corporation may more and more closely approximate to that of civil service without forming part of it.
In so far as public corporations fulfil public tasks on behalf government, they are public authorities and as such subject to control by government." In the instant case, it is to be noted that the activity carried on by the Central Board or the State Boards under the Provident Funds Act is not similar to the activity carried on by any private trade or manufacturing business like the one involved in the case of the Heavy Engineering Corporation 's case (supra).
The activity is one traceable to Article 43 of the Constitution which requires the State to endeavour to secure by suitable legislation or economic organisation or in any other way to all workers, agricultural or industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities.
It is a part of the programme of every welfare State which our country is.
Institutions engaged in matters of such high public interest or performing such high public functions as observed by Mathew J. in Sukhdev Singh 's case (supra) by virtue of their very nature performed governmental functions.
They are truly the agents of the Government and they function under the authority of the Government as provided in the statute because the Central Government could have, for the purpose of introducing the scheme of compulsory contribution to the provident fund, set up an organisation or a department in absence of the corporate bodies evisaged in the Provident Funds Act.
The Division Bench of the High Court was in error in observating that an examination of the organisation showed "that the activities of the Provident Fund" organisation are not governmental in character as they are essentially part of the activities of various industries to which the Provident Funds Act applies.
' We have no doubt that the business of the Provident Funds organisation is governmental in character and does not pertain to industry to which the Provident Funds Act applies.
The management and workmen of industries to which the Provident Funds Act applies contribute to the funds established under that Act.
The business of the statutory bodies functioning under that Act is not the business of industries whose managements and workmen 824 make contributions to the said funds.
In addition to the above feature, the provisions of section 5B (2) of the Provident Funds Act which reads: "A State Board shall exercise such powers and perform such duties as the Central Government may assign to it from time to time" clearly envisage that the State Board is an agent of the Central Government.
In the absence of the State Board, the Regional Committee constituted under Paragraph 4 of the Scheme is required to function under the control of the Central Board.
The Regional Provident Fund Commissioner who is appointed by the Central Government is also under the control of the Central Board and the Central Government.
Having regard to the various provisions of the Provisions Funds Act and the nature of the business carried on by the Central Board, the State Board, the Regional Committee and the Regional Provident Fund Commissioner, we are of the view that the Division Bench of the High Court was not right in holding that the State Government was the appropriate Govt.
under section 2(a) of the Act in the matter of industrial disputes arising between the management and the workmen of the Regional Provident Fund organisation.
It has to be mentioned here that even the learned counsel for the workmen fairly stated that the Central Government was appropriate Government under the Act in so far as the dispute in question is concerned He, however, submitted that the Central Government may now be directed to refer the dispute pending before the Tribunal at Bangalore to an Industrial Tribunal quickly as the case has been pending for nearly 5 years.
We have no doubt that the Central Government will immediately consider the above question and take appropriate action.
In the result the order of the Division Bench of the High Court is set aside and the order of the learned Single Judge is restored.
The reference made by the State Government is quashed.
The appeal is accordingly allowed.
No costs.
H.S.K. Appeal allowed.
| The Income Tax Officer forwarded a certificate under section 46(2) of the Indian Income Tax Act to the Collector for recovering the arrears of Income Tax from the assesses as if they were arrears of land revenue.
The Collector proceeded under section 48, Madras Revenue 971 Recovery Act, and had the assessee arrested and confined in jail.
Upon a petition for a writ of habeas corpus the High Court ordered the release of the assessee holding that section 48 of the Madras Revenue Recovery Act and section 46(2) Of the Indian Income Tax Act were ultra vires.
The Collector appealed.
Held, that section 48 Of the Madras Revenue Recovery Act, and section 46(2) of the Indian Income Tax Act were not ultra vires and neither of them violated articles 14,19, 21 and 22 of the Constitution.
Where the personal liberty of a person is lawfully taken away under article 21, i.e., in accordance with a procedure established by a valid law, no question of the exercise of fundamental rights under article 19(1)(a) to (e) and (g) can be raised.
A.K. Gopalan vs The State of Madras, ; , followed.
An arrest for a civil debt in the process of or in the mode prescribed by law for recovery of arrears of land revenue does not come within the protection of article 22.
State of Punjab vs Ajaib Singh ; , followed.
Section 46(2) of the Indian Income Tax Act does not offend article 14 and there is no violation of article 21 where a person is arrested under section 48, Madras Revenue Recovery Act, in pursuance of a warrant of arrest issued for the recovery of the demand certified under section 46(2) of the Indian Income Tax Act.
Purshottam Govindji Halai vs Shri B. M. Desai, Additional Collector of Bombay, ; , followed.
Section 46(2) of the Indian Income Tax Act gives authority to the Collector to recover arrears of tax as if it were an arrear of land revenue.
Section 48 of the Madras Revenue Recovery Act read with section 5 make it clear that the arrest of the defaulter is one of the modes by which the arrears of land revenue can be recovered, to be resorted to if the said arrears cannot be liquidated by the sale of the defaulter 's property.
Such an arrest is not for any offence committed or a punishment for defaulting in any payment.
Section 48 of the Madras Revenue Recovery Act does not require the Collector to give the defaulter an opportunity to be heard before arresting him.
But the Collector must have reason to believe that the defaulter is wilfully withholding payment or has been guilty of fraudulent conduct in order to evade payment.
Such belief must be based upon some material, which a Court may look into in appropriate cases, to find out if the conditions laid down in the section have been fulfilled.
The Collector has also the power to release the defaulter if the amount due is paid.
|
Appeal No. 991/76.
(Appeal by Special Leave from the Judgment and Order dated the 21.1.1976 of the Madhya Pradesh High Court in Second Appeal No. 415 of 1971) section Choudhury, D.N. Mishra, O.C. Mathur and Shri Narain for the appellant.
G.L. Sanghi, V.K. Sanghi, R.K. Sanghi and S.N. Khanduja for the respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
A suit for eviction of an accommodation from the tenant to whom it had been let for residential and non residential 768 purposes resulted in dismissal by the trial Judge.
But in an appeal, the final court of fact took the view that the landlord (respondent) was entitled to eviction.
The tenant challenged the appellate decree before the High Court in Second Appeal without success and has therefore come up to this Court with this appeal by special leave.
A short point has been raised which deserves only a short answer.
Since we agree with the High Court which in turn has agreed with the first appellate court, our judgment can afford to be brief.
A statement of necessary facts may now be given.
The landlord had let out the premises, which is a storeyed building, to be tenant as per exhibit P 1 of 1955.
The signif icant clause in the lease deed runs thus: "1 XXX 2.
I take your house for my own use i.e. for opening a cloth shop and for residential purposes and I will not sublet your house to anybody.
XXX XXX XXX XXX.
" The tenant has thus put the building to busi ness and residential purposes.
The landlord, who is an M. Sc., claimed the building back on the score that he wanted to run a medical store on the ground floor a non residential purpose and stay on the first floor with his wife a residential purpose.
Thus the acommo dation was let out for dual purposes, was being used presumably for these requirements and was being claimed back by the landlord for the twin purposes mentioned above.
The final court of fact has held that the landlord needs the building for his chemist 's shop and for his residential use.
The High Court in Second Appeal has upheld this finding and added that "the finding as to his bonafide requirement was rightly not challenged before me .
The conclusion that the courts have reached is the only conclusion possible on the evidence on record in the light of the circumstances appearing.
" This statement by the High Court that the bonafide requirement of the landlord was not challenged before it has not been questioned in the memorandum of appeal to this Court.
It must therefore be taken that the bonafide need of the landlord is validly made out.
The short point that survives is as to whether the composite purposes of the lease would put it out of the ground set out for eviction under section 2 of the Madhya Pradesh Accommodation Control Act, 1961.
The said Act defines 'accommodation ' thus: " 'accommodation ' means any building or part of a building, whether residential or non residential and includes, XX XXX XXX.
" 769 It follows that an accommodation can be resi dential, non residential or both.
section 12 bars an action of eviction of a tenant from any accommodation except on one or more of the grounds set out therein.
section 12(1) (e) and (f), bearing on the present case, may be appropriately extracted here: "12.
Restriction on eviction of tenents (1) (a) to (d) x x x x x (e) that the accommodation let for residential purposes is required bona fide by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the accommodation is held.
and that the landlord or such person has no other reasonably suitable residential accommoda tion of his own in the occupation in the city or town concerned; (f) that the accommodation let for non residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasona bly suitable non residential accommodation of his own in his occupation in the city or town concerned;.
XXX XXX XXX.
" The residential portion is a part of the building and is an accommodation by defini tion.
The non residential portion is also a part of the building and is an accommoda tion by definition.
The lease has been given for residential as well as non residential purposes.
The landlord is entitled to evic tion of the residential portion if he makes out a bonafide residential requirement.
Likewise he is entitled to eviction of the non residential portion which is an accommoda tion if he makes out a non residential requirement.
We have already found that the final court of fact, affirmed by the High Court, has found in favour of the landlord regarding his residential as well as non residential requirements.
Therefore, nothing more can be done in defence of the tenant in the light of the present law.
Counsel contended that in a decision of this Court, viz, section Sanyal vs Gian Chand,(1) it has been held that it is not permissible for the court to split up a contract in an eviction proceeding.
We agree.
There is no question of splitting up of the contract in the present case, as is abundantly plain from what we: have stated.
The contract was integral but had dual purposes.
The landlord has put forward dual requirements which neatly fit into section 12(1)(e) and (f).
The conse quence is inevitable that the eviction order has to be upheld.
(1) ; 770 It is seep, that the tenant has been doing a thriving cloth business, with goodwill attached to it, for well knigh 30 years.
It is therefore but fair that the.
tenant is given sometime to rehabilitate himself by securing an alter native but suitable accommodation.
In our towns where scarcity of accommodation is the rule it is not that easy to secure alternative premises.
Taking due note of this reali ty, we direct that while dismissing the appeal the eviction order shall not be put into execution before 1st January, 1978.
Parties will bear their respective costs.
S.R. Appeal dismissed.
| The Nellore Ramapuram route passing over a short dis tance of 8 K.m.
through Tamil Nadu was proposed to be natio nalised by the Andhra, Pradesh Government.
The appellant an existing private operator on the route challenged the scheme on the ground that the route being an inter state route, noncompliance with section 68 D(3) of the aborted the Nationalisation.
The High Court held that the decisive test turned on whether both the termini fall within the same state and it did in this case and so on question of inter state route arose.
On appeal by Certifi cate the court HELD: (1) (a) The route Nellore Ramapuram is an inter state route; (b) the Scheme of Nationalisation is operative even in the absence of the previous approval of the Central Government so far as the portions which fall within Andhra Pradesh are concerned and (c) the nationalisation cannot become effective over the strip in Tamil Nadu and ,private operators may still be permitted to ply their services over that strip by the concerned authority within Tamil Nadu State, but (d) The Andhra Pradesh State Transport Corpora tion may ply its buses over the Tamil Nadu enclave even without counter signature, exemption having been granted in that behalf by the 2nd proviso to section 63(1 ) of the .
[567H, 568 A B] (2) The definition of 'Route ' in section 2(28A) of the Act is not a notional line "as the crow flies" but the actual highway as a motor vehicle traverses from one terminus to another.
A route is transformed into an inter state one, if the highway it covers passes through more than one state.
An inter state route may be of the categories either con necting two states or traversing two or more states.
[564 D E] (3) Ordinarily not invariably the two termini test is a, working solution and not an inflexible formation.
The termini test may lead to strange results, fatal to federal ideas.
A route which originates in Srinagar, runs down South to Kanyakumari and rises North to end again in Kashmir, completing a Bharat Darshan, cannot sensibly be called an interstate one, without doing violence to lan guage, geography and federalism.
And in the absence of a statutory definition of inter state route non violence to English and conformance to commonsense dictate the adoption of the conventional meaning that if a route traverses more than one state it is inter state.
[564 B C, D] (4) Undoubtedly, where the termini fall in different states the route is inter state.
But that does not ex clude other categories of inter state route such as where it crosses a state other than the originating state although gets back into it later.
If the territory of more than one state is covered even if both the termini eventually fall within the same state, the route is inter not intra state.
[564H, 565A] 563 Kazan Singh ; ; Ahwathanarayan vs State ; pp.
100 101.
explained.
(5) If the whole of the route lies within a single state it is intra state and not inter state, even though the road over which the route lies runs beyond the borders of that single state as national highways do.
It is elementary that there can be inter state routes which run into or through more than one state.
A part of that long route may itself be a separate route and may fall wholly within a single state in which case the former may be inter state while the latter will be an intra state route.
[565G H, 566A] (6) There can be no doubt that the scheme notified by one State will, even in the case of an inter state route, operate to the extent it lies within that State.
Its extra territorial effect depends on securing of prior Cen tral Government approval under the proviso to Section 680(3).
However, the permit granted in one state may still be valid in.
another state, if the condition specified in the 2nd proviso to section 63(1) is fulfilled.
The portion of the route, in the instant case, falling outside Andhra Pradesh (both termini being within that state) is admittedly less than 16 k.m.
and so no question of countersignature by the State Transport Authority or the Regional Transport Authority of Tamil Nadu arises.
The portion of the inter state route which fell within Andhra Pradesh stand nationa lised and consequently exclude private operators.
But that strip of the inter state route which falls within Tamil Nadu cannot be taken to have been nationalised to the exclusion of private operators although the Andhra Pradesh State Transport Buses could ply on that strip also in view of the 2nd proviso to section 63(1) of the .
[567 A B, E F]
|
ivil Appeal No. 2279 of 1991.
From the Judgment and Order dated 27.9.1989 of the Bombay High Court in C.R.A. No. 500 of 1985.
S.C. Birla for the Appellant.
V.N. Ganpule, S.V. Deshpande and Ms. Priya Gupta for the Respondent.
The Judgment of the Court was delivered by RAY, J.
We have heard learned counsel for the parties and we grant special leave.
This appeal on special leave is directed against the judgment and order passed in Civil Revision Application No. 500 of 1985 by the High Court of Judicature at Bombay, Aurangabad Bench allowing the Revision, setting aside the judgment and decree passed by the District Judge in Rent Appeal No. 5 of 1984 confirming and allowing the judgment and order of the Additional Rent Controller, Aurangabad in R.C. No. ARC/71/3.
The matrix of the case is as follows: The appellant landlord, Chandmal, S/o Sumermal Surana as plaintiff filed a suit for eviction of the respondent defendent Firm Ram Chandra & Vishwanath, a commission agent firm from his shop bearing Municipal No. 4 16 101 situated a Mondha, Taluka, District Aurangabad (maharashtra) under section 15(3)(a)(iii) of the Hyderabad House (Rent, Eviction and Lease) Control Act, 1954 to be hereinafter to be referred to as the said Act on the ground inter alia that the respondent was the tenant of the said shop attached to the said house of the appellant landlord on the monthly rent of Rs.50 per month and the tenancy commences from the Ist day of every month according to the English calendar, that the landlord appellant required the suit shop for his own personal use as he intended to start commission agency and other business in the said shop, that he terminated the tenancy of the respondency of the respondent by serving the two notices dated 28.3.1969 and 8.12.1970 and that the respondent did not vacate the suit premises, hence the suit has been filed for eviction of the tenant respondent from the said premises.
Shankarrao Marutirao Sonawane, 735 one of the partners of respondent firm filed his written statement before the Additional Rent Controller accepting the ownership of the appellant and tenancy of the respondent at the rate of Rs. 50 per month.
He, however, denied the appellant 's allegation that he required the suit premises for his personal use.
According to the respondent, the appellant is a member of Hindu joint family comprising of his father, Sumermal, his real brothers and appellant and as one of the partners of registered firm runs a kirana of commission agency shop under the name and style of M/s Rajmal Sumermal Surana.
It has been further submitted that the appellant owns many houses and shops at Aurangabad and also runs a very big shop at Bhaji Bazar, Aurangabad and is not entitled to evict.
In the additional written statement it has been further stated that the appellant purchased the house from Balkrishna and brothers, the firm Ramchandra and Vishwanath is a partnership firm registered under the Partnership Act, one of the partners of the firm Ramchandra and Vishwanath is occupying the house as a permanent tenant since Samwat 2002.
It has also been contended that the partners of the firm are not made parties to the eviction proceedings and hence the suit was not tenable.
An additional issue was framed at the request of the appellant which was to the following effect: "Do defendant prove that he is permanent tenant and his claim is bona fide.
" The trial court considering the evidences adduced on behalf of the defendant respondent held that the defendant failed to prove the claim of permanent tenancy of Ramchandra Madhavrao since Samvat 2002 over the suit premises and that the claim of permanent tenancy is not bona fide.
This issue was thus answered in the negative.
The Additional Rent Controller, therefore, held that the appellant is entitled to evict the respondent from the suit premises in view of the provisions of Section 15(2) (vi) of the said Act and, therefore, Made an order directing the tenant respondent to hand over vacant and peaceful possession of the said shop to the landlord appellant within a period of 30 days of the order though he negatived the plea of bona fide requirement of suit premises for his own occupation.
The order was made on February 14, 1984.
Against this judgment and order, the tenant respondent filed an appeal being Rent Appeal No. 5 of 1984 under section 25 of the said Act in the court of 736 District Judge at Aurangabad.
The learned District Judge confirmed the judgment and order of the Additional Rent Controller holding that the landlord failed to prove that he bona fide required the premises for personal use, for starting new business.
It was further held that so far as the claim of permanent tenancy, there was no iota of evidence to support the tenant respondent 's claim of permanent tenancy.
It also held that the tenant respondent has put forth the claim of permanent tenancy to defeat the landlord appellant 's right to claim possession of the premises and had there been any substance in the claim, the tenant respondent would have produced evidence in support of it.
Complete absence of evidence indicated that the claim is fake and not put forth bona fide.
The learned District Judge, therefore, held that the tenant 's claim of permanent tenancy was not bona fide and so upheld the finding of the Additional Rent Controller and granted three months ' time to the tenant respondent to deliver possession of the suit premises to the landlord appellant.
The tenant respondent feeling aggrieved filed an application for Revision under Section 26 of the said Act in the High Court at Bombay (Aurangabad Bench) being Civil Revision Application No. 500 of 1985.
The said Revision Application was allowed by the learned Single Judge setting aside the concurrent finding of the courts below holding inter alia that in the reply of the tenant to the notices sent by the landlord, there was no semblance of a claim for permanent tenancy.
It was further held that in the written submission there was no whisper about the claim of permanent tenancy.
It is for the first time that in the additional written statement filed on behalf of the tenant the claim of permanent tenancy by one of the partners, Ramchandra Madhavrao since Samwat 2002 was made.
It has also been held that during the trial, Shankarrao Marutirao Sonawane, one of the partners of the respondent firm who has signed the written statement has not uttered a word in his examination in chief with regard to the question of permanent tenancy.
It was, therefore, held that in these circumstances "it is the duty of the Court in the interest of justice to interfere even with a concurrent finding of fact because on the record, I find that there is not a single factor to come to the conclusion that the claim was mala fide or was not bona fide as is required by the statute.
" The learned Single Judge, therefore, set aside the judgments of the courts below and allowed the Revision Application with costs throughout.
It is against this judgment and order, the instant appeal on 737 special leave has been filed by the landlord.
It is convenient to set out hereinbelow the relevant provisions of Section 15(2)(vi) of the said Act before proceeding to consider whether the High Court was justified in setting aside the judgment and order of the courts below: Section 15(2)(vi): A tenant shall not be evicted, whether in execution of a decree or otherwise except in accordance with the provisions of this section (vi) that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not bona fide the Controller shall make an order directing the tenant to put the landlord in possession of the house, and if the Controller is not so satisfied he shall make an order, rejecting, rejecting the application.
" It is also pertinent to set out in this connection the provisions of Section 26 of the said Act: Section 26: "Notwithstanding anything contained in this Act or any other law for the time being in force, an application for revision shall lie to the High Court from any final order passed on appeal by an appellate authority on the following grounds: (a) that the original or appellate authority exercised a jurisdiction not vested in it by law, or (b) that the original or appellate authority failed to exercise a jurisdiction so vested, or (c) in following the procedure or passing the order, the original or appellate authority acted illegally or with material irregularity.
" There is no dispute regarding the submission made in para 9 of the additional written statement which is a part of the same written statement, filed on behalf of the respondent by one of its partners, Shankarrao Marutirao Sonawane to the effect that one of the partners 738 of the said firm, Ramachandra Madhavrao is occupying the house as a permanent tenant since Samvat 2002.
Admittedly, on the basis of this additional written statement, an additional issue No. 1 was framed at the request of the landlord appellant whether the claim of permanent tenancy of Ramchandra Madhavrao was bona fide.
It is evident from the provisions of Section 15(2)(vi) as set out hereinbefore that if the tenant has claimed a right of permanent tenancy and that such claim was not bona fide the Controller shall make an order directing the tenant to put the landlord in possession of the house.
The Additional Rent Controller as well as the District Judge considered carefully and minutely the evidences adduced on behalf of the tenant respondent and found that claim of permanent tenancy was not bona fide.
Accordingly, the courts below held that the tenant respondent was liable to be evicted from the suit premises on this ground alone and passed order for eviction from the suit premises.
The jurisdiction of the High Court in revision against the order passed on appeal by the District Judge is a limited one and it is almost pari materia with the provisions of Section 115 of the Code Procedure.
The High Court while exercising the revisional jurisdiction can interfere with the order passed on appeal by the appellate authority only on three grounds i.e. (i) where the original or appellate authority exercised a jurisdiction not vested in it by law, or (ii) where the original or appellate authority failed to exercise a jurisdiction so vested, or (iii) where in following the procedure or passing the order, the original or appellate authority acted illegally or with material irregularity.
It is evident from the averments made in para 9 of the additional written statement that one of the partners of the respondent firm, Ramchandra Madhavrao occupied the said premises as a permanent tenant since Samvat 2002.
This claim of permanent tenancy was held to be not bona fide by the original court as well as by the appellate authority on a consideration and appraisement of the evidences adduced on behalf of the tenant respondent and as such both the courts below passed order of eviction of the tenant respondent from the suit premises.
These are admittedly concurrent findings of fact arrived at by the original and the appellate authority.
Moreover, these findings in any view of the matter whatsoever, cannot be held to be either without jurisdiction nor it can amount to a failure to exercise jurisdiction vested with them, nor it can be held to be made by the original or appellate authority illegally or with material irregularity.
The revisional jurisdiction of the High Court under Section 26 of the said Act is confined strictly to the jurisdictional error or illegal exercise of jurisdiction.
The finding of the High Court to the effect 739 that it was the duty of the Court in the interest of justice to interfere even with the concurrent finding of facts because on the records, High Court found that there was not a single factor to come to the conclusion that the claim was mala fide or was not bona fide as required by the statute, is entirely baseless and not in accordance with the provisions of Section 26 of the said Act which confers revisional jurisdiction on the High Court.
It is pertinent to mention in this connection the decision in J. Pandu vs R. Narsubai, It is a case under the A.P. Buildings (lease, Rent and Eviction) Act, 1960.
Sub section 2(vi) of Section 10 of A.P. Buildings (Lease, Rent and Eviction) which is similar to Section 15(2)(vi) of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 sets out two grounds of eviction viz. (1) denial of title of the landlord without bona fides and (2) claim of permanent tenancy rights without bona fides.
It was held that "consequently, either denial of title or claim of permanent tenancy without bona fides will itself be enough to attract Section 10(2)(vi).
The order of eviction on this ground, has therefore, to be sustained.
By reason of this conclusion alone the appeal can be dismissed.
" In the case of Majati Subbarao vs P.V.K.Krishna Rao (deceased) by Lrs., it has been observed that the denial of title of the landlord by the tenant must be made in clear and in unequivocal terms.
It was further observed that it is well settled that the court hearing a suit or appeal can take into account events which are subsequent to the filing of the suit in order to give appropriate relief or mould the relief appropriately.
As we have stated hereinbefore that the claim of permanent tenancy by one of the partners, Ramchandra Madhavrao has been clearly and unequivocally made in the additional written statement filed on behalf of the respondent.
In such circumstances, the provisions of Section 15(2)(vi) of the said Act are applicable and an order of eviction can very well be passed on this ground alone.
In the premises aforesaid, the judgment and order passed in revision by the High Court is contrary to law as the High Court in exercise of its revisional jurisdiction interfered with the concurrent finding of fact arrived at by the original court as well as the appellate authority.
The High Court should not have reversed the same in excise of its revisional jurisdiction under Section 26 of the said Act.
We, therefore, set aside the judgment and order of the High Court and uphold the orders of the court below.
The respondent is given three 740 months ' time to vacate the suit premises on filing the usual undertaking that they will not induct anybody or transfer the same to any other person and they will go on paying the rent of the premises at the usual rate and will deliver vacant and peaceful possession of the suit premises on or before the expiry of the said period to the landlord appellant.
In the facts and circumstances of the case, the parties will bear their own costs.
V.P.R. Appeal allowed.
| The appellant pursuant to contracts entered into with the Railway Administration fabricated and delivered to the Railways wagon bodies mounted on "wheel sets" supplied by the Railways.
The appellant 's invoices, reflected only the price of the wagonbodies without including the value of the "wheel sets" on which the wagon bodies were mounted.
The goods were cleared for purposes of Excise duties on such invoice value.
The Revenue raised demand for recovery of short levy and sought to recover the unpaid duty on the value of the "wheel sets" also.
The claim for recovery of the short levy having been adjudicated against the appellant, appeals were filed before the Tribunal, by the appellant contending that the goods manufactured by the appellant were only the wagon bodies mounted on the "wheel sets" supplied by the Railway Adminis tration; and therefore, the assessable value could only be the value of the wagon bodies excluding the "wheel sets" supplied by the Railways; and that at all events the value in excess of the 'invoice value ' which represented the price of the wagon bodies was exempt from levy of duty under the Exemption Notification No. 120/75CE dated 30th April, 1975 issued under Rule 8 of the Central Excise Rules, 1944.
The Tribunal dismissed the appeals, against which, the present appeals were filed before this Court.
The appellant contended that the Tribunal misdirected itself in law in its construction of the exemption Notifica tion and in its reasoning that there was something in Clause (iv) of the Notification which detracted from the permissi bility of its benefit in the present case; that 324 it was erroneous to read the condition as requiring the 'invoice value ' to be the full commercial price of the goods including therein the value of the "wheel sets"; that the very purpose of the exemption was to relieve the manufactur er from bearing the burden of the duty on such part of the assessable value as did not reflect the value of his supply and services but represented the value of the "wheel sets" supplied by the Railway Administration itself free of charge.
The Revenue Respondent contended that Clause (iv) of the Notification signified and imported the idea of full value of the manufactured goods being required to be reflected in the invoice and that the reasoning of, and the conclusion reached by, the Tribunal was correct.
This Court allowing the appeals, HELD. 1.
The Notification posits and predicates the possibility that the invoice value ' could be lesser than the "assessable value" and, taking into account the need to mitigate the hardship on the manufacturer of being called upon to pay duty on the value in excess of the invoice value, seeks to exempt the manufacturer from payment of duty "inexcess of the duty" calculated on the basis of the 'i nvoiceprice '.
[328G H] 2.
The way in which the Tribunal looked at the Notifica tion is neither good sense nor good law.
Such construction would make the Notification and the exemption contemplated thereunder meaningless.
The need for the exemption arose in view of the fact that "assessablevalue" was higher than the 'invoice value '.
Requiring the former and the latter to be the same as something compelled by Clause (iv) is really to construe the Notification against itself.
[329B C] 3.
In this case, there is no dispute that the invoice price represented the value of the wagons, less the value of the "wheel sets" supplied by the Railways.
The invoice price could not be required to include the value of the "wheel sets".
But the "assessable value" would take into account the full commercial value including that of the "wheel sets".
1t is in order to mitigate the hardship that may arise by requiring the manufacturer to pay duty on this difference in such cases that the Notification No. 120/75 came to be promulgated.
[328H 329B] 4.
There is nothing in Clause (iv) which enjoins upon the appellant to include the value of the "wheel sets".
The contract between the parties does not also require this.
[329B] 325 M/s. Burn Standard Company Ltd. & Anr.
vs Union of India
|
Appeal No.426 of 1957.
Appeal from the judgment and order dated April 21, 1955, of the Orissa High Court at Cuttack in Special Jurisdiction Case No. 179 of 1951.
A. N. Kripal, R. H. Dhebar and D. Gupta, for the appellant.
A. V. Viswanatha Sastri, M. section K. Sastri and R. Jagannatha Rao, for the respondent.
October 14.
The Judgment of the Court was delivered by VENKATARAMA AIYAR, J.
This is an appeal against the judgment of the High Court of Orrissa in a reference under section 66(1) of the Indian Income tax Act, 1922, hereinafter referred to as the Act, and the point for decision is whether income received by the respondent by the sale of trees growing in his forests is agricultural income exempt from taxation under section 4(3)(viii) of the Act.
The respondent is the proprietor of the impartable zamin of Jaipur in Koraput District.
The estate is of the area of 12,000 sq.
miles of which 1540 sq.
miles are reserve forest and 100 sq. miles, protected forest.
The respondent derives income from the forests by the sale of timber such as teak, salwood, lac, myrabolam, tamarind, cashewnuts and firewood.
There is no 23 178 dispute either as to the receipt of such income or as to its quantum.
All tat appears in the account books of the respondent.
The point in controversy is as to whether this income is chargeable to tax.
It is the contention of the respondent that this is agricultural income as defined ins.
2(1) of the Act, and that it is, in consequence, exempt under section 4(3)(viii).
By his 31, 1943, the Income tax order dated January Officer held that the forests in question had not been proved to have been planted by the respondent, that the trees were of spontaneous growth, and that the income therefrom was not within the exemption under section 4(3)(viii); and this order was confirmed on appeal by the Appellate Assistant Commissioner.
The respondent took the matter in further appeal to the Appellate Tribunal, and there put forward the contention that the Incometax Officer had failed to take into account a letter of the Dewan dated June 3, 1942, which gave a detailed account of the operations carried on by the estate in the rearing and maintenance of forests and that on the facts mentioned in that letter, his finding that there had been no plantation of trees was errolieous.
By its order dated April 9, 1946, the Tribunal accepted this contention, and directed a fresh enquiry into the facts mentioned in the said letter.
Pursuant to this order, the Income tax Officer again enquired into the matter.
He observed that though he gave ample opportunities to the respondent to prove that there was plantation of trees by the estate, no materials were placed in proof of that fact and that neither plantation books nor any working plans for timber plantation had been produced.
He accordingly held that the forests had grown naturally, and that the income therefrom was assessable to tax.
On this report, the appeal again came up for hearing before the Tribunal.
The main contention urged by the respondent at the hearing was that the facts showed that the forests which had yielded income during the year, ' of account could not have been the virgin forests which had originally grown spontaneously on the hills, because they had been periodically denuded by the hill tribes in the process of Podu cultivation carried on by 179 them.
What this Podu cultivation means is thus stated in the ]District Gazetteer, Vishakapatnam, 1907: " This consists in felling a piece of jungle, burning the felled trees and undergrowth, sowing dry grain broadcast in the ashes (without any kind of tilling) for two years in succession, and then abandoning the plot for another elsewhere.
" The argument of the respondent was that as a result of the Podu cultivation, the original forests should have disappeared and that the trees that had subsequently grown into forest and sold as timber must have been planted by human agency and their sale proceeds must accordingly be agricultural income.
Dealing with this contention, the Tribunal observed that though there had been extensive destruction of forests in the process of Podu cultivation, nevertheless, considerable areas of virgin forests still survived, that the evidence of actual cultivation and plantation by the zamin authorities was meagre and unsubstantial, that no expenses were shown to have been incurred on this account prior to 1904, that the amount shown as spent during that year was negligible, that the trees planted then could not have been the trees sold as timber during the assessment years, and that the respondent bad failed to establish facts on which he could claim exemption.
It should be mentioned that this order covered the assessments for five years from 1942 43 to 1946 47, the facts relating to the character of the income being the same for all the years.
On the application of the respondent, the Tribunal referred the following question for the decision of the High Court : " Whether on the facts and in the circumstances the income derived from forest in this case is taxable under the Indian Income tax Act.
" The reference was heard by Panigrahi, C. J., and Misra, J., who answered it in the negative.
They observed : " It appears to us that the cases as set out by both parties have been put too high.
The department takes the view that unless there is actual cultivation of the 180 soil the income from the forest trees cannot be regard.
,led as agricultural income.
The fact that the assessee has spent some money and planted valuable trees in some areas is not sufficient to free the income out of the extensive forests which owe their existence to spontaneous growth, from its liability to taxation.
The assessee on the other hand seeks to create an impression that there is not a single tree of spontaneous growth, in these forests, and such trees as now constitute forests have sprung up out of the stumps left by the hillmen as a result of the system of I Podu ' cultivation adopted by them.
It appears to us that neither of these claims can be regarded as precise or correct." The learned Judges then observed that the forests in the Koraput area had been under Podu cultivation for a long period, and that as the result of that cultivation they had practically disappeared even by the year 1870, that the trees had subsequently grown into forests and they had also been destroyed by about the year 1901, and that therefore there could not have been any virgin forest left surviving.
Then they referred to the fact that the respondent had been maintaining a large establishment for the preservation of the forests, and that there had been organised activities (1) " in fostering the growth of the trees and preserving them from destruction by man and cattle; (2) in cultivation of the soil by felling and burning trees from time to time; (3) in planned exploitation of trees by marking out the areas into blocks; (4) in systematic cutting down of trees of particular girth and at particular heights; (5) in planting new trees where patches occur; and (6) in watering, pruning, dibbling and digging operations carried on from time to time ".
And they stated their conclusion thus: " All these and similar operations which have been undertaken by the assessee through his huge forest establishment, show that there has been both cultivation of the soil as well as application of human skill and labour, both upon the land and on the trees themselves.
It cannot be assumed therefore that all the trees are of spontaneous growth.
The indications, on 181 the other hand, appear to be that most of them are sprouts springing from burnt stumps.
There is no basis for the assumption made by the Income tax Department that all the trees are forty years old and that they owe their existence to spontaneous growth.
Apart from that it will be noticed that what distinguishes the present case from all the reported decisions is that practically the whole of the forest area has been subjected to process of 'Podu ' cultivation spreading over several decades so that it is impossible to say that there is any virgin forest left.
The onus was certainly upon the department to prove that the income derived from the forest was chargeable, to tax and fell outside the scope of the exemption mentioned in Section 4(3)(viii).
" In this view, they held that the Department had failed to establish that the income derived from the sale of trees was not agricultural income, and answered the reference in favour of the respondent.
The learned Judges, however, granted a certificate to the appellant under section 66(A)(2) of the Act, and that is how the appeal comes before us.
At the very outset, we should dissent from the view expressed by the learned Judges that the burden is on the Department to prove that the income sought to be taxed is not agricultural income.
The law is well settled that it is for a person who claims exemption to establish it, and there is no reason why it should be otherwise when the exemption claimed is under the Income tax Act.
The learned Judges were of the opinion that their conclusion followed on the principle of the law of Income tax that " where an exemption is conferred by a statute, the State must not get the tax either directly or indirectly ", and support for this view was sought in the following observations of Lord Somervell, L. J., in Australian Mutual Provident Society vs Inland Revenue Commissioners (1): " The rule must be construed together with the exempting provisions which, in our opinion, must be regarded as paramount.
So far as the rule, if taken (I) 182 in isolation, would have the effect of indirectly depriving the company of any part of the benefit of the exemption, its operation must be cut down, so as to prevent any such result, and to allow the exemption to operate to its full extent.
" These observations have, in our opinion, no bearing on the question of burden of proof.
They merely lay down a rule of construction that in determining the scope of a rule, regard must be had to the exemptions engrafted thereon, and that the rule must be so construed as not to nullify those exemptions.
No such question arises here.
There is ample authority for the view that the principle that a person who claims the benefit of an exemption has to establish it, applies when the exemption claimed is under the provisions of the Income tax Act.
Vide the observations of the Lord President and of Lord Adam in Maughan vs Free Church of Scotland (1) and the observations of Lord Hanworth, M. R., in Keren Kayemeth Le Jisroel Ltd. vs The Commissioners of Inland Revenue (2) at p. 36 that " the right to exemption under Section 37 must be established by those who seek it.
The onus therefore lies upon the Appellants ", and of Lord Macmillian at p. 58 that, " In my opinion, the Appellants, have failed to bring it within any one of these categories and consequently have failed in what was essential for them to make out, namely, that this Company is a body of persons established for charitable purposes only.
" The decisions of Indian Courts have likewise ruled and quite rightly that it is for those who seek exemption under section 4 of the Act to establish it.
Vide Amritsar Produce Exchange Ltd. In re (3) and Sm.
Charusila Dassi and others, In re (4).
So far as exemption under section 4(3) (viii) is concerned, the matter is concluded by a decision of this Court given subsequent to the decision now under appeal.
In Commissioner of Income tax vs Venkataswamy Naidu (5), this Court held, reversing the judgment of the High Court of Madras, that it (1) , 21 O. (2) (3) , 327.
(4) , 370.
(5) , 534. 183 was for the assessee to prove that the income sought to be taxed was agricultural income exempt from taxation under section 4(3)(viii).
Bhacgwati, J., delivering the ' judgment of the Court observed: " . the High Court erroneously framed the question in the negative form and placed the burden on the Income tax Authorities of proving that the income from the sale of milk received by the assessee during the accounting year was not agricultural income.
In order to claim an exemption from payment of incometax in respect of what the assessee considered agricultural income, the assessee had to put before the Income tax Authorities proper materials which would enable them to come to a conclusion that the income which was sought to be assessed was agricultural income.
It was not for the Income tax Authorities to prove that it was not agricultural income.
It was this wrong approach to the question which vitiated the judgment of the High Court and led it to an erroneous conclusion.
" On the inerits, the question what is agricultural income within section 2(1) of the Act is the subject of a recent decision of this Court in The Commissioner of Income tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy (1).
There, it was held that before an income could be held to be agricultural income, it must be shown to have been derived from land by agriculture or by one or the other of the operations described in cls.
(i) and (ii) of section 2(1)(b) of the Act, that the term St agriculture " meant, in its ordinary sense, cultivation of the field, that in that sense it would connote such basic operations as tilling of the land, sowing of trees, plantation and the like, and that though subsequent operations such as weeding, pruning, watering, digging the soil around the growth and removing undergrowths could be regarded as agricultural operations when they are taken in conjunction with and as continuation of the basic operations mentioned before, they could not, apart from those operations, be regarded as bearing the character of agricultural operations.
(1) ; , 155, 158, 160.
184 It is only " observed Bhagwati, J., delivering the judgment of the Court, " if the products are raised from the land by the performance of these basic operations that the subsequent operations attach themselves to the products of the land and acquire the characteristic of agricultural operations. " " But if these basic operations are wanting the subsequent operations do not acquire the characteristic of agricultural operations.
" Dealing with trees which grow wild, Bhagwati, J., observed : " It is agreed on all hands that products which grow wild on the land or are of spontaneous growth not involving any human labour or skill upon the land are not products of agriculture and the income derived therefrom is not agricultural income.
There is no process of agriculture involved in the raising of these products from the land.
" The law being thus settled, in order to decide whether the income received by the respondent by the sale of trees in his forests was agricultural income or not, the crucial question to be answered is, were those trees planted by the proprietors of the estate, or did they grow spontaneously ? If it is the latter, it would be wholly immaterial that the respondent has maintained a large establishment for the purpose of preserving the forests and assisting in the growth of the trees, because ex hypothes, he performed no basic operations for bringing the forests into being.
Now, the Tribunal has clearly found that there were no plantations of trees by the estate authorities worth the name, and that the trees, the income from which is the subject matter of the assessments, must have been of sponta neous growth.
That is a finding of fact which is binding on the Court in a reference under section 66(1) of the Act.
The learned Judges declined to accept this finding, because they considered that the Tribunal had not appreciated the true significance of Podu cultivation.
That, in our opinion, is a misdirection.
If the point for decision had been whether the forest was a virgin forest or whether it had subsequently sprung up, the evidence relating to Podu cultivation would have 185 been very material.
But the point for decision is not whether the forests were ancient and primeval, but whether they had been planted by the estate authorities, and on that, the Podu cultivation would have no bearing.
As a result of the Podu cultivation, the original forests would have disappeared.
But the question would still remain whether the forest which again sprang up was of spontaneous growth, or was the result of plantation.
Now, there is no evidence that as and when the jungle had disappeared under Podu cultivation, the estate intervened and planted trees on the areas thus denuded.
On the other hand, the learned Judges themselves found that after the destruction of the original forests in the process of Podu cultivation, there was a fresh growth of forests from the stumps of the trees which had been burnt.
If that is the fact, then the new growth is also spontaneous and is not the result of any plantation.
In fairness to the learned Judges, it must be observed that at the time when they heard the reference there was a conflict of judicial opinion on the question whether subsequent operations alone directed to the preservation and improvement of forests would be agricultural operations within section 2(1) of the Act; and the view they took was that such operations when conducted on a large scale as in the present case would be within section 2(1) of the Act.
It was in that view that they observed that "it is therefore idle to regard tilling as the sole and indispensable test of agriculture ".
The decision of the learned Judges was really based on the view that though trees in the forest had not been planted by the estate authorities, the latter had performed subequent operations of a substantial character for the maintenance and improvement of the forest, and that, in consequence, the income was agricultural income.
This view is no longer tenable in view of the decision of this Court in The Commissioner of Income tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy (1).
It is contended by Mr. Viswanatha Sastri for the (1) ; , 155, 158, 160.
24 186 respondent that on the facts established in the evidence, the proper conclusion to come to is that the trees sold by the respondent had been planted by the estate authorities, and that the decision of the High Court that the income thus realised is within the exemption under section 4(3)(viii) could be supported even on the view of law taken in The Commissioner of Income tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy (1).
The argument was that there was unimpeachable evidence that the old forests had disappeared under Podu cultivation, that the estate had been regularly engaged in planting trees at least from the year 1904 as is shown by the accounts of the zamin, that it was a reasonable inference to make that there had been similar plantations even during the years prior to 1904 notwithstanding that no accounts were produced for those years, because it would not be reasonable to expect that such accounts would now be available, that though the amount shown as spent for plantation might not be considerable, that was understandable when regard is bad to the fact that the agricultural operations were conducted on the hills and not on the plains, that, on these facts, it would be proper to conclude that the forests were in their entirety the result of plantation.
It would be ail erroneous approach, it was argued, to call upon the assessee to prove tree by tree that it was planted.
Now, these are matters of appreciation of evidence on what is essentially a question of fact, viz., whether the trees were of spontaneous growth or were products of plantation.
On this, the Tribunal has given a clear finding on a consideration of all the material evidence, and its finding is final and not open to challenge in a reference under section 66 (1) of the Act.
Even the learned Judges of the High Court who considered themselves free to review that finding and, as already pointed out, without justification, could only observe that the trees must have mostly grown from the slumps left when the forests were burnt for purposes of Podu cultivations finding which is fatal to the contention now urged for the respondent that they (I) ; , 155, 158, 160.
187 were the result of plantation.
We are of opinion that there are no grounds on which the finding of the Tribunal could be attacked in these proceedings.
It remains to deal with one other contention urged on behalf of the respondent, and that is based on the fact that the amounts spent in the upkeep of the forrests were large in comparison with the receipts therefrom.
The following are the figures relating to the forest receipts and expenses for the years with which the present assessments are concerned: Years Receipts Expenses 1942 43 Rs. 438,894 Rs. 174,437 1943 44 Rs. 407,447 Rs. 209,895 1944 45 Rs. 552,122 Rs. 228,830 1945 46 Rs. 372,971 Rs. 247,216 1946 47 Rs. 689,366 Rs. 460,369 The argument is that from the high proportion of the expenses in relation to the receipts it could be inferred that the income from trees planted by the estate formed a substantial portion of the income derived from the forests.
And support for this conclusion is sought in the following observations in The Commissioner of Income tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy (1): " The expenditure shown by the assessee for the maintenance of the forest is about Rs. 17,000 as against a total income of about Rs. 51,000.
Having regard to the magnitude of this figure, we think that a substantial portion of the income must have been derived from trees planted by the proprietors themselves.
" To appreciate the true import of these observations, we must have regard to the context in which they occur.
The facts found in that case were that portions of the forest which was originally of spontaneous growth had gradually been denuded, that the propritor had planted trees in the areas so denuded, that this had gone on for a period of over 150 years, and that therefore " the whole of the income derived from (1) ; , 155, 158, 160.
188 the forest cannot be treated as non agricultural income ".
It was then observed that " If the enquiry had been directed on proper lines, it would have been possible for the Income tax authorities to ascertain how much of the income is attributable to forest of a spontaneous growth and how much to trees Planted by the proprietors ", but that, in view of the long lapse of time, it was not desirable to remand the case for enquiry into the matter.
Then follow the observations on which the respondent relies, and when read in the light of the findings that the plantations made by the proprietors were not negligible, they mean nothing more than that out of the total income a substantial portion was likely to be agricultural income, and that it was therefore not a fit case for ordering fresh enquiry These observations do not lay down that if considerable amounts are expended in the maintenance of forests, then it must be held that the trees were planted by the proprietors.
They only mean that if a considerable portion of the forests is found to have been planted, a substantial portion of the forest income may be taken to have been derived therefrom.
And this too, it must be remarked, is only a presumption of fact, the strength of which must depend on all the facts found.
In the face of the clear finding in the present case that the forests with which the assessment years are concerned were of spontaneous growth, the observations quoted above can be of no assistance to the respondent.
It is scarcely necessary to add that the observations " If the enquiry bad been directed on proper lines, it would have been possible for the Income tax authorities to ascertain how much of the income is attributable to forest of spontaneous growth and how much to trees planted by the proprietors " quoted above cannot be read, as was sought to be done for the respondent, as throwing on the Department the burden of showing that the income sought to be taxed was not agricultural income.
That, in their context, is not the true meaning of the observations, and the law is as laid down in Commissioner of Income tax vs Venkataswamy Naidu (1) , 534. 189 In the result, this appeal is allowed, the order of the Court below is set aside and the reference is answered in the affirmative.
The respondent will pay the costs of the appellant here and in the Court below.
Appeal allowed.
| The two petitioners were apprehended while attempting to smuggle a huge amount of Indian and foreign currency and other contraband goods out of India and the Collector of Central Excise and Land Customs passed orders confiscating the seized goods and imposing heavy personal penalties on both of them under 275 section 167(8) of the Sea Customs Act.
On a subsequent complaint made by the Customs Authorities on the same facts, the petitioners were convicted and sentenced by the Additional District Magistrate to various terms of imprisonment under section 23, read with section 23B, of the Foreign Exchange Regulation Act, section i67(8I) of the Sea Customs Act and section 120B of the Indian Penal Code.
The Additional Sessions judge in appeal affirmed the said orders of conviction and sentences and the High Court refused to interfere in revision.
It was contended on behalf of the petitioners, who had, at an earlier stage, made an unsuccessful attempt to move this Court under article 32 and have the prosecutions quashed, that the orders of conviction and sentences passed on them by the Courts below infringed the constitutional protection against double jeopardy afforded by article 20(2) Of the Constitution.
Held, (Per Das, C. J., Bhagwati, B. P. Sinha and Wanchoo, Jj., Subba Rao, J., dissenting) that the contention was without substance and must be negatived.
In order to sustain a plea of double jeopardy and to avail of the protection of article 20(2) of the Constitution it was incumbent to show that (1) there was a previous prosecution, (2) a punishment and (3) that for the same offence, and unless all the three conditions were fulfilled the Article did not come into operation.
The word 'prosecution ' as used in that Article contemplated a proceeding of a criminal nature either before a court or a judicial tribunal.
Maqbool Hussain vs The State of Bombay, ; , relied on.
The insertion of section 187A into the Sea Customs Act by the amending Act of 1955, left no scope for doubt that the hierarchy of Authorities under that Act functioned not as Courts or judicial tribunals but as administrative bodies, even though in recording evidence or hearing arguments they acted judicially.
The words " offences " and " penalties " used by the Act could not have the same meaning as in Criminal Law and a penalty or confiscation ordered under section 167(8) of the Act could not be a punishment such as is inflicted by a Criminal Court for a criminal offence.
Sewpujanrai Indrasanrai Ltd. vs The Collector of Customs and others; , , referred to.
Nor were the Customs Authorities invested with the powers of a Criminal Court under the Schedule to section 167 and the procedure laid down by Ch.
XVII of the Act, and any orders passed by them either in rem or in personal, by way of confiscation of the goods or imposition of penalties on the person, could only be in the nature of administrative ones made in the interest of revenue and could not bar a criminal prosecution.
Morgan vs Devine, ; and United States of America vs Anthony La Franca, ; , considered.
276 The proceedings against the petitioners before the Collector of Customs under section 167(8) of the Sea Customs Act could.
not therefore, be a prosecution within the meaning of article 20(2) Of the Constitution and the petitioners were not put to double jeopardy.
Per Subba Rao, J.
The prosecution of 'the petitioners before the Magistrate and the punishment inflicted on them directly infringed article 20(2) of the Constitution.
There can be no inconsistency in an authority under an Act functioning in an administrative capacity in respect of certain specified duties while it acts as a judicial tribunal in respect of others, and the question as to which of them it discharges in a judicial capacity has to be decided on the facts of each case and in the light of well settled characteristics of a judicial tribunal.
Cooper vs Wilson, and Venkataraman vs Union of India; , , relied on.
Although this Court has held that the Sea Customs Autho rities in adjudging confiscation do not function as judicial tribunals but as mere administrative authorities, the question as to whether imposing personal penalties they act as judicial tribunals still remains open.
Maqbool Hussain vs The State.
of Bombay, ; and Sewpujanrai Indrasanrai Ltd. vs The Collector of Customs, ; , explained.
An examination of the entire scheme of the Sea Customs Act leaves no manner of doubt that the Customs Authorities act as judicial tribunals so far as offences under section 167 Of the Act are concerned.
The word 'prosecuted ' used in article 20(2) of the Constitution is comprehensive enough to include a prosecution before an authority other than a Magistrate or a Criminal Court, and the offences described in section 167 Of the Sea Customs Act are offences within the meaning of the General Clauses Act and the Indian Penal Code and the penalties prescribed therefor are nothing but punishments inflicted for those offences either by the Customs Authorities or the Magistrate.
The question of the identity of an offence has to be deter mined on the facts of each particular case and the real test is whether the previous prosecution and punishment were based on the same facts on which rested the subsequent prosecution and punishments
|
Civil Appeal No. 37 of 1968.
Appeal by special leave from the judgment and order dated 17 5 1966 of the Allahabad High Court in Special Appeal No. 640 of 1965.
R. K. Garg, section C. Agrawala and V. J. Francis, for the appellants.
B. D. Sharma, for respondents Nos. 4 and S The Judgment of V. R. Krishna Iyer and section Muataza Fazal Ali JJ. was delivered by Fazal Ali, J. R. section Sarkaria, J. gave a separate opinion.
FAZAL ALI J.
This is an appeal by special leave against the judgment of the Allahabad High Court dated May 17, 1966 by which the appeal against the decision of a Single Judge of the High Court rejecting the writ petition of the appellants had been dismissed.
An application for granting a certificate for leave to appeal to this Court was made by the appellant before the High Court which was also dismissed by order of the High Court dated August , 1967.
The case had a rather chequered career and the disputes between the parties were sometimes settled and sometimes reopened.
In order, however, to understand the point involved in the present appeal, it may be necessary to enter into the domain of the contending claims of the respective parties put forward before the Revenue Courts from time to time.
To begin with the admitted position is that one Lachman the last propitiator was the tenant and the tenure holder of the property in dispute which consists of 19.73 acres of land contained in Khatas Nos. 5 & 90 and 19.4 acres of land comprising Khatas Nos. 53 & 204.
Lachman died in the year 1948 leaving behind three daughters, namely, Musamat Tikia, Musamat Har Pyari and Musamat Ram Pyari.
Musamat Tikia was married during the life time of Lachman and the appellant No. 1 Kale is the son of Musamat Tikia.
Thus it would appear that after the death of Lachman the family consisted of his two unmarried daughters Har Pyari and Ram Pyari and his married daughter 's son Kale.
Under the U.P. Tenancy Act, 1939 which applied to the parties only unmarried daughters inherit the property.
The first round of dispute appears to have arisen soon after the death of Lachman in the year 1949 when Panchayat Adalat of the village was asked to decide the dispute between Prem Pal nephew of Lachman and the appellant Kale regarding inheritance to the property left by Lachman.
Har Pyari and Ram Pyari appear to have been parties to that dispute and the Panchayat Adalat after making local enquiries held that Har Pyari having been married had lost her right in the estate and Ram 205 Pyari was also an heir so long as she was not married and after her marriage the legal heir to the property of Lachman would be the appellant Kale.
In the year 1952 the U.P. Zamindari Abolition and Land Reforms Act, 1950 was made applicable to the tenure holders also.
This Act was further amended on October 10, 1954 by Act 20 of 1954 by which, amongst the list of heirs enumerated under the statute, "unmarried daughter" was substituted by ' 'daughter ' ' only.
According to the appellant in this Court as also in the High Court Ram Pyari respondent No. S was married on February 25, 1955 and thereafter the appellant filed a petition before the Naib Tahsildar, Hasanpur, for expunging the names of respondents 4 and 5 from the disputed Khatas because both of the daughters having been married ceased to have any interest in the property.
lt was therefore prayed that the appellant was the sole heir to the estate of Lachman under section 3 of the U.P. Tenancy Act, 1939, he alone should be mutated in respect of the`property of Lachman.
By order dated December S, 1955 the Naib Tahsildar, Hasaknpur, accepted the contention of the appellant and expunged the names of respondents 4 & 5 from the Khatas in dispute and substituted the name of the appellant Kale.
Soon thereafter on January 11, 1956, respondents 4 & 5, i.e. Musamat Har Pyari and Ram Pyari daughters of Lachman, filed an application before the Naib Tahsildar for setting aside his order dated December 5, 1955 which had been passed behind their back and without their knowledge.
While this application of respondents 4 & 5 was pending adjudication the Revenue Court was informed that talk of compromise was going on between the parties which ultimately culminated in a compromise or a family arrangement under which the appellant Kale was allotted, Khatas Nos.
5 90 whereas respondents 4 & 5 were allotted Khatas No. 53 & 204 as between them.
A petition was filed on August 7, 1956 before the Revenue Court informing it that compromise had been arrived at and in pursuance thereof the name of the parties may be mutated in respect of the khatas which had been allotted to them.
This petition was signed by both the parties and ultimately the Assistant Commissioner, 1 Class, passed an order dated March 31, 1957 mutating the name of the appellant Kale in respect of Khatas Nos. 5 & 90 and the names of respondents 4 & 5 in respect of Khatas Nos. 53 and 204.
Thereafter it is not disputed that the parties remained in possession of the properties allotted to them and paid land revenue to the Government.
Thus it would appear that the dispute between the parties was finally settled and both the parties accepted the same and that benefit thereunder.
This state of affairs continued until the year 1964 when proceedings for revision of the records under section 8 of the U.P. Consolidation of holdings Act, 1953 were started in the village Hasanpur where the properties were situated in the course of which respondents 4 & 5 were entered in Form C.H. 5 as persons claiming co tenure holders to the extent of 2/3rd share with the appellant Kale who was entered in the said form as having 1/3rd share in all the Khatas.
In view of this sudden change of the entries which were obviously contrary to the mutation made in pursuance of the family arrangement entered into between the parties in 1956, the appellant 206 Kale filed his objections before the Assistant Consolidation officer for changing the entries in respect of those Khatas.
As the Assistant Consolidation officer found that the dispute was a complicated one he by his order dated May 7, 1964 referred the matter to the Consolidation officer.
It might be mentioned here that when the proceedings for revision of the records were started, while the appellant filed his objections, respondents 4 & 5 seem to have kept quiet and filed no objections at all.
In fact under section 9 (2) of the U. P. Consolidation of Holdings Act, 1953, the respondents could have filed their objections, if they were aggrieved by the entries made on the basis of the compromise.
Sub section (2) of section 9 of the U.P. Consolidation of Holdings Act runs thus: "Any person to whom a notice under sub section (1) has been sent, or any other person interested may, within 21 days of the receipt of notice, or of the publication under sub section (1), as the case may be, file, before the Assistant Consolidation officer, objections in respect thereof disputing the correctness or nature of the entries in the re cords or in the extract furnished therefrom, or in the Statement of Principles, or the need for partition.
" This is a very important circumstance which speaks volumes against the conduct of the respondents which will be referred to in detail in a later part of our judgment and seems to have been completely brushed aside by all the Courts.
The Consolidation officer to whom the dispute was referred, by his order dated July 27, 1964, framed a number of issues, and after trying the suit, removed the name of the appellant Kale from Khatas 5 & 90 and substituted the names of appellant No. 2 Musamat Tikia and those of respondents 4 & 5.
We might also mention here that for the first time respondents 4 & 5 raised a dispute before the Consolidation officer denying that the appellant Kale was the grandson of Lachman.
The Consolidation officer framed an issue on this question and after taking evidence clearly found that the objection raised by respondents 4 & 5 was absolutely groundless and that the appellant Kale was undoubtedly the grandson of Lachman.
The Consolidation officer pointed out that even before the Panchayat Adalat as also in the mutation petition which was filed before the Naib Tahsildar respondents 4 & 5 never disputed that the appellant Kale was the grandson of Lachman being the son of his daughter Musamat Tikia who is appellant No. 2.
Thereafter the appellant and the respondents 4 & 5 filed an appeal before the Settlement officer who by his order dated November 28, 1964, restored the mutation made by the Naib Tahsildar on the basis of the compromise, namely the appellant was mutated in respect of Khatas Nos. 5 & 90 and respondents 4 & 5 in respect of Khatas Nos. 53 & 204.
Thereafter respondents 4 & 5 filed a revision petition before the Deputy Director of Consolidation who by his order dated January 22, 1965, reversed the order of the Settlement officer and expunged 207 the name of the appellant Kale from Khatas Nos.
S & 90 and recorded the name of respondent No. 5 Musamat Ram Pyari in respect of these Khatas on the ground that she was the sole tenure holder in respect of those Khatas.
Thereafter the appellant Kale and his mother Musama Tikia appellant No. 2 filed a writ petition in the Allahabad High Court against the order of the Deputy Director of Consolidation.
The writ petition was heard in the first instance by a Single Judge who dismissed the petition upholding the order of the Deputy Director of Consolidation The appellant then filed a special appeal to the Division Bench of the Allahabad High Court which also affirmed the judgment of the Single Judge and dismissed the appeal hence this appeal by special leave.
In support of the appeal Mr. Garg appearing for the appellants submitted two points of law before us.
In the first place he argued that the grounds on which the Courts below have not given effect to the family arrangement arrived at between the parties in 1956 culminating in the mutation in 1957 are not legally sustainable.
The High Court took an erroneous view of the law in rejecting the compromise on the ground that it was not registered.
It was argued that an oral family arrangement had already taken place earlier and application before the Naib Tahsildar was merely for the information of the Court for the purpose of mutation of the names of the parties in pursuance of the compromise and, therefore, no question of registration of the compromise in this case arose.
Secondly it was contended that even if the compromise was unregistered it would undoubtedly operate as a clear estoppel against the respondents 4 & 5 who having taken benefit thereunder and having remained in possession of the lands for E more than seven years cannot be allowed to revoke the compromise.
Mr. Sharma learned counsel appearing for the respondents raised the following contentions before us: (1) that the appellants never pleaded any oral family arrangement; (2) that the family arrangement relied upon by the appellants was not bona fide and was fraudulent as the on sent of respondents 4 & 5 was obtained by fraud or` undue influence; (3) that the appellants themselves gave a complete go bye to the family arrangement in the case which they made out before the Revenue Courts and have merely taken advantage of a stray observation made by the Deputy Director of Consolidation; (4) that the petition filed before the Naib Tahsildar embodied and as such the terms and conditions of the compromise was compulsorily registrable under the Registration Act, and being unregistered it was inadmissible in evidence; (5) that at any rate the family arrangement was not proved by the appellants as a fact; 208 (6) that the doctrine of estoppel would not apply because the family arrangement being compulsorily registrable there can be no estoppel against the statute; and (7) that the findings of the Revenue Courts being essentially findings of fact, this Court would not interfere, unless there was a sufficient error of law apparent on the face of the record.
Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all.
By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family.
The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made.
In this connection, Kerr in his valuable treatise "Kerr on Fraud" at p. 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus; "The principles which apply to the case of ordinary compromise between strangers, do not equally apply to the case of compromises in the nature of family arrangements.
Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honesty made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to that their rights actually are, or of the points On which their rights actually depend.
" The object of the arrangement is to protect the family from long drawn litigation cr perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family.
Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour.
A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administrating of social justice.
That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successions so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger 209 interest of the country.
The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds.
Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits.
The law in England on this point is almost the same.
In Halsbury 's Laws of England, Vol. 17, Third Edition, at pp.
215 216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made: "A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour.
The agreement may be implied from a long course.
Of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied.
Family arrangements are governed by principles which are not applicable to dealings between strangers.
The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which in dealing with transactions between persons not members of the same family, would not be taken into account.
Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements".
In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions: (1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family; (2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence: (3) The family arrangement may be even oral in which case no registration is necessary; (4) It is well settled that registration would be necessary only if the terms of the family arrangement are 210 reduced into writing.
Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum pre pared after the family arrangement had already been made either for the purpose of the record or for in formation of the court for making necessary mutation.
In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of section 17(2) of the Registration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property 'It which is acknowledged by the parties to the settlement.
Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole 9 owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same; (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.
The principles indicated above have been clearly enunciated and adroitly adumbrated in a long course of decisions of this Court as also those of the Privy Council and other High Courts, which we shall discuss presently.
In Lala Khunni Lal & Ors.
vs Kunwar Gobind Krishna Narain and Anr.(1) the statement of law regarding the essentials of a valid settlement was fully approved of by their Lordships of the Privy Council.
In this connection the High Court made the following observations , which were adopted by the Privy Council: The learned judges say as follows: "The true character of the transaction appears to us to have been a settlement between the several members of the family of their disputes, each one relinquishing all claim in respect of all property in dispute other than that falling to his share, and recognizing the right of the others as they had previously asserted it to the portion allotted to them respectively.
It was in this light, rather than as conferring a new distinct title on each other, that the parties themselves seem to have regarded the arrangement, and we think that (1) L. R. 38 T. A. 87. 102.
211 it is the duty of the Courts to uphold and give full effect to such an arrangement.
" Their Lordships have no hesitation in adopting that view." This decision was fully endorsed by a later decision of the Privy Council in Mt. Hiran Bibi and others vs Mt. Sohan Bipi(1).
In Sahu Madho Das and others vs Pandit Mukand Ram and another(2) this Court appears to have amplified the doctrine of validity of the family arrangement to the farthest possible extent, where Bose, J., speaking for the Court, observed as follows: "It is well settled that compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively.
That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement.
It is assumed that the title claimed by the person receiving the property `, under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary.
But, in our opinion, the principle can be carried further and so strongly do the Courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid in anticipation, future disputes which might ruin them all, and we have no hesitation in taking the next step.
(fraud apart) and upholding an arrangement under which.
One set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and, simple from him or her, or as a conveyance for consideration when consideration is present." In Ram Charan.
DAS vs Girjanandini Devi & Ors.
(3), this Court observed as follows: "Courts give effect to a family settlement upon the broad " and general ground that its object is to settle existing or future disputes regarding property amongst members of a family.
The word 'family ' in the content is not to be under stood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or (1) A.I.R. 1914 P.C.44.
(2) ; , 42 43.
(3) ; , 850 851. 212 having a claim to a share in the property in dispute.
The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another.
That consideration having been passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter.
" In Tek Bahadur Bhujil vs Debi Singh Bhujil and others(1) it was pointed out by this Court that a family arrangement could be arrived 4 at even orally and registration would be required only if it was reduced into writing.
It was also held that a document which was no more than a memorandum of what had been agreed , to did not require registration.
This Court had observed thus: "Family arrangement as such can be arrived at orally.
Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties.
The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded.
It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future.
It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights f in what properties the parties possess." Similarly in Maturi Pullaiah and Anr.
vs Maturi Narasimham and ors.(2) it was held that even if there was no conflict of legal claims but the settlement was a bona fide one it could be sustained by the Court.
Similarly it has also held that even the disputes based upon ignorance of the parties as to their rights were sufficient to sustain the family arrangement.
In this connection this Court observed as follows: "It will be seen from the said passage that a family arrangement resolves family disputes, and that even disputes based upon ignorance of parties as to their rights may afford a sufficient ground to sustain it.
* * * * * Briefly stated, though conflict of legal claims in praesenti or in future is generally a condition for the validity of a family arrangement, it is not necessarily so.
Even bona fide disputes, present or possible, which may not involve legal claims will suffice.
Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, (1) A.I.R. 1966 S.C. 292, 295.
(2) A.I.R. 1966 S.C. 1836.
213 enter into such a family arrangement.
If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts `will .
more readily give assent to such an arrangement than to avoid it.
" In Krishna Biharilal vs Gulabchand and others(1) it was pointed out that the word 'family ' had a very wide connotation and could not be confined only to a group of persons who were recognised by law as having a right of succession or claiming to have a share.
The Court then observed: "To consider a settlement as a family arrangement, it is not necessary that the parties to the compromise should all , belong to one family.
As observed by this Court in Ram Charan Das vs Girjanandini Devi and ors.[1965] 3 SCR 841 at pp.
850 & 851 the word "family" in the context of a family arrangement is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute.
If the dispute which is settled is one between near relations then the settlement of such a dispute can be considered as a family arrangement see Ramcharan Das 's case.
The courts lean strongly in favour of family arrangements to bring about harmony in a family and do Justice to its various members and avoid in anticipation future disputes which might ruin them all." In a recent decision of this Court in section Shanmugam Pillai and others vs K. Shanmugam Pillai & others(2) the entire case law was discussed and the Court observed as follows: "If in the interest of the family properties or family peace the close relations had settled their disputes amicably, this Court will be reluctant to disturb the same.
The courts generally lean in favour of family arrangements.
* * * * Now turning to the plea of family arrangement, as observed by this Court in Sahu Madho Das and others v Pandit Mukand Ram and Another ; the courts lean strongly in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all.
As observed in that case the family arrangement can as a matter of law be inferred from a long course of dealings between the parties.
In Maturi Pullaiah and Another vs Maturi Narasimham and Others AIR 1966 SC 1836 this Court held that although conflict of legal claims in praesenti or in future is (1) [1971] Supp.
SCR 27, 34.
(2) 214 generally condition for the validity of family arrangements, it is not necessarily so.
Even bona fide dispute present or possible, which may not involve legal claims would be sufficient.
Members of a joint Hindu family may to maintain peace or to bring about harmony in the family, enter into such a family arrangement.
If such an agreement is entered into bona fide and the terms thereto are fair in the circumstances of a particular case, the courts would more readily give assent to such an agreement than to avoid it." Thus it would appear from a review of the decisions analysed above that the Courts have taken a very liberal and broad view of the validity of the family settlement and have always tried to uphold it and maintain it.
The central idea in the approach made by the Courts is that if by consent of parties a matter has been settled, it should not be allowed to be re opened by the parties to the agreement on frivolous or untenable grounds.
A full bench of the Allahabad High Court in Ramgopal vs Tulshi Ram and another(1) has also taken the view that a family arrangement could be oral and if it is followed by a petition in Court containing a reference to the arrangement and if the purpose was merely to inform the Court regarding the arrangement, no registration was necessary.
In this connection the full bench adumbrated the following propositions in answering the reference: " We would, therefore return the reference with a statement of the following general propositions: With reference to the first question: (1) A family arrangement can be made orally.
(2) If made orally, there being no document, no question of registration arises.
With reference to the second question: (3)If though it could have been made orally, it was in fact reduced to the form of a "document", registration (when the value is Rs. 100 and upwards) is necessary.
(4) Whether the terms have been "reduced to the form of a document" is a question of fact in each case to be determined upon a consideration of the nature and phraseology of the writing and the circumstances in which and the purpose with which it was written.
(5) If the terms were not "reduced to the form of a document", registration was not necessary (even though the value is Rs. 100 or upwards); and, while the writing cannot be used as a piece of evidence for what it may be worth, e.g. as corroborative of other evidence or as an admission of the transaction or as showing or explaining conduct.
(1) AIR 1928 All.
641, 649. 215 (6) If the terms were "reduced to the form of a document" and, though the value was Rs. 100 or upwards, it was not registered, the absence of registration makes the document inadmissible in evidence and is fatal to proof of the arrangement embodied in the document.
" Similarly in Sitala Baksh Singh and others vs Jang Bahadur Singh and other (1) it was held that where a Revenue Court merely gave effect to the compromise, the order of the Revenue Court did not require registration.
In this connection the following observations ' were made: "In view of this statement in para 5 of the plaint it is hardly open to the plaintiffs now to urge that exhibit 1, the com promise, required registration when they themselves admit that it was embodied in an order of the Revenue Court and that it was given effect to by the Revenue Court ordering mutation in accordance with the terms of the compromise.
* * * * We hold that as the Revenue Court by its proceeding gave effect to this compromise, the proceedings and orders of the Revenue Court did not require registration." Similarly in a later decision of the same Court in Mst.
Kalawati vs Sri Krlshna Prasad and others (2) it was observed as follows: "Applying this meaning to the facts of the present case, it seems to us that the order of the mutation court merely stated the fact of the compromise having been arrived at between the parties and did not amount to a declaration of will.
The order itself did not cause a change of legal relation to the property and therefore it did not declare any right in the property.
" The same view was taken in Bakhtawar vs Sunder Lal and others(3), where Lindsay, J., speaking for the Division Bench observed as follows: "It is reasonable to assume that there was a bona fide dispute between the parties which was eventually composed each party recognizing an antecedent title in the other.
I this view of the circumstances I am of opinion that there was no necessity to have this petition registered.
It does not in my opinion purpose to create, assign, limit, extinguish or declare within the meaning of these expressions as used in section 17(1)(b) of the Registration Act.
It is merely a recital of fact by which the Court is informed that the parties have come to an arrangement.
" Similarly the Patna High Court in Awadh Narain Singh and others vs Narain Mishra and others(4) pointed out that a compromise petition not embodying any terms of agreement but merely conveying in formation to the Court that family arrangement had already been (1) A.I.R 1933 Oudh 347, 348 349.
(2) I.L.R. 19 Lucknow 57, 67.
(3) A.I.R. 1926 All. 173.
(4) AIR 1962 Patna 400.
15 390SCI/76 216 arrived at between the parties did not require registration and can be looked into for ascertaining the terms of family arrangement.
This is what actually seems to have happened in the present case when the mutation petition was made before the Assistant Commissioner.
This Court has also clearly laid down that a family arrangement being binding on the parties to the arrangement clearly operates as an estoppel so as to preclude any of the parties who have taken advantage under the agreement from revoking or challenging the same.
We shall deal with this point a little later when we consider the arguments of the respondents on the question of the estoppel.
In the light of the decisions indicated above, we shall now try to apply the principles laid down by this Court and the other Courts to the facts of the present case.
It would be seen that when the name of appellant No. 1 Kale was mutated in respect of the Khatas by the Naib Tehsildar by his order dated December 5, 1955 which is mentioned at p. 4 of the Paper Book respondents 4 & 5 filed an application for setting aside that order on the ground that they had no knowledge of the proceedings.
Subsequently a compromise was entered into between the parties a reference to which was made in the compromise petition filed before the Revenue Court on August 7, 1956.
A perusal of this compromise petition which appears at pp.
15 to 18 of the Paper Book would clearly show two things (1) that the petition clearly and explicitly mentioned that a compromise had already been made earlier, and (2) that after the allotment of the Khatas to the respective parties the parties shall be permanent owners thereof.
The opening words of the petition may be extracted thus: "It is submitted that in the above suit a compromise has been made mutually between the parties.
" It would appear from the order of the Assistant Commissioner, 1st Class, being Annexure 4 in Writ Petition before the High Court, appearing at p. 19 of the Paper Book that the parties sought adjournment from the Court on the ground that a compromise was being made.
In this connection the Assistant Commissioner, Ist Class, observed as follows: "On 11th January 1956 Mst.
Har Piari and Ram Piari gave an application for restoration in the court of Naib Tahsildar on the ground that they were not informed of the case and they were aggrieved of his order passed on 5th December 1955.
On this application he summoned the parties and an objection was filed against the restoration application.
The parties sought adjournment on the ground that a compromise was being made.
The parties filed compromise before the Naib Tehsildar according to which two lists were drawn, one of these is to be entered in the name of.
Kale and the other in the name of Har Piari and Ram Piari.
" This shows that even before the petition was filed before the Assistant commissioner informing him that a compromise was being made, The 217 parties had a clear compromise or a family arrangement in contemplation for which purpose an adjournment was taken.
These facts coupled together unmistakably show that the compromise or family arrangement must have taken place orally before the petition was filed before the Assistant Commissioner for mutation of the names of the parties in pursuance of the compromise.
The facts of the present case are '` therefore clearly covered by the authorities of this Court and the other , .
High Courts which laid down that a document which is in the nature of a memorandum of an earlier family arrangement and which is filed before the Court for its information for mutation of names is not compulsorily registrable and therefor can be used in evidence of the family arrangement and is final and binding on the parties.
The Deputy Director of Consolidation respondent No. 1 as also the High Court were, therefore, wrong in taking the view that in absence of registration the family arrangement could not be sustained.
We might mention here that in taking this view, the High Court of Allahabad completely over looked its own previous decisions on this point which were definitely binding on it.
This, therefore, disposes of the first contention of the learned counsel for the respondents that as the family arrangement having been reduced into the form of a document which was presented before the Assistant Commissioner was unregistered it is not admissible and should be excluded from consideration.
It was then contended by the respondents that the family arrangement was not bona fide for two reasons: (1) that it sought to give property to the appellant No. 1 Kale who was not a legal heir to the estate of Lachman, because in view of the U.P. Land Reforms (Amendment) Act 20 of 1954 Mst.
Ram Piari even after being married could ? retain the property, and so long as she was there the appellant had no right; and (2) that the family arrangement was brought about by fraud or undue influence.
As regards the first point it appears to us to be wholly untenable in law.
From the principles enunciated by us and the case law discussed above, it is absolutely clear that the word 'family ' cannot he construed in a narrow sense so as to confine the parties to the family arrangement only to persons who have a legal title to the property.
Even so it cannot be disputed that the appellant Kale being the grand son of Lachman and therefore a reversioner at the time when the talks for compromise` took place was undoubtedly a prospective heir and also a member of the family.
Since respondents 4 & 5 relinquished their claims in favour of the appellant Kale in respect of Khatas 5 & 90 the appellant, according to the authorities mentioned above, would be deemed to have antecedent title which was acknowledged by respondents 4 & 5.
Apart from this there is one more important consideration , which clearly shows that the family arrangement was undoubtedly a bona fide settlement of disputes.
Under the family arrangement as referred to in the mutation petition the respondents 4 & 5 were given absolute and permanent rights in the lands in dispute.
In 1955 when the compromise is alleged to have taken place the Hindu Succession , was not passed and respondents 4 & 5 would have only a limited interest even if they had got the entire property which would ultimately pass to the appellant Kale after their death.
The respondents 4 & 5 thought that it would be a good bargain if by dividing the properties equally they could retain part of the properties as absolute owners.
At that time they did not know that the Hindu Succession p Act would be passed a few months later.
Finally the compromise sought to divide the properties between the children of Lachman, namely, his two daughters and his daughter 's son the appellant Kale in equal shares and was, therefore, both fair and equitable.
In fact if respondents 4 & 5 would have got all the lands the total area of which would be somewhere about 39 acres they might have to give away a substantial portion in view of the ceiling law.
We have, therefore to see the circumstances prevailing not after the order of the Assistant Commissioner was passed on the mutation petition but at the time when the parties sat down together to iron out their differences.
Having regard to the circumstances indicated above, we cannot conceive of a " more just and equitable division of the properties than what appears to have been done by the family arrangement.
In these circumstances therefore, it cannot be said that the family settlement was not bona fide Moreover respondents 4 & 5 had at no stage raised the issue before the Revenue Courts or even before the High Court that the settlement was not bona fide.
The High Court as also respondent No. 1 have both proceeded on the footing that the compromise was against the statutory provisions of law or that it was not registered although it should have been registered under the Registration Act.
There is yet one more intrinsic circumstance which shows that the compromise was an absolutely bona fide transaction.
It would appear that at the time of the compromise respondent 5 Ram Pyari was faced with a situation when her marriage in 1955 was not so far proved.
If she was absolutely certain that her marriage had taken place in 1955 she would not have agreed to the terms at all.
On the other hand if she thought that she might not be able to prove that her marriage took place in 1955 and if it was shown that she had married before 1955 then she would be completely disinherited and would get nothing at all with the result that the appellant Kale would get the entire property.
on the other hand the appellant must have similarly thought that a bird in hand is worth two in the bush.
So long as Ram Pyari was alive he would not be able to enjoy the property and would have to wait till her death.
It was, therefore, better to take half of the property immediately as a permanent tenure holder and give the half to the daughters of Lachman, namely, Har Pyari and Ram Pyari.
Thus under the terms of the compromise both the parties got substantial .
benefits and it was on the whole a very fair and equitable bargain.
In these circumstances, therefore, the parties struck a just balance and fair and beneficial settlement which put an end to their disputes.
Coming to the second plank of attack against the family settlement that it was brought about by duress or undue influence or fraud, there is not an iota of evidence or a whisper of an allegation by respondents 4 & 5 either in the Revenue Courts or in the High Court.
Even before respondent No. 1, where respondents 4 & 5 were the petitioners l, 219 they never questioned the compromise on the ground that it was fraudulent on a point of fact.
It is well settled that allegations of fraud or undue influence must first clearly be pleaded and then proved by clear and cogent evidence.
There was neither pleading nor proof of this fact by respondent 4 & 5.
Moreover, it may be mentioned that even in their objections before the Assistant Commissioner for setting aside the previous mutation made in favour of the appellant Kale the only ground taken by the respondents 4 & 5 was that the order was passed without their knowledge.
Lastly the petition filed before the Assistant Commissioner for mutating the lands in pursuance of the compromise was signed by both the parties who were major and who knew the consequences thereof.
In these circumstances, therefore, the argument of the learned counsel for the respondents that the compromise was fraudulent appears to be a pure after thought and is not at all justified by any evidence.
This contention must therefore be overruled.
It was also suggested by Mr. Sharma that before the Revenue Courts the appellant Kale tried to show by producing a false Kutumb Register that respondent No. 5 Ram Pyari was married before 1955 so that being a married daughter she may be deprived of her inheritance and the Revenue Courts found that this register was not proved to be genuine.
This, however, does not amount to a plea of fraud but is a matter of evidence.
On the other hand even the respondents 4 & 5 had taken the stand before the Revenue Courts when they filed their joint written statement in 1965 that the appellant was not the grandson of Lachman a fact which they admitted clearly before the Panchayat Adalt as also before the Assistant Commissioner when they filed the mutation petition.
The Revenue Courts clearly held that this plea was totally unfounded and was completely disproved.
thus even assuming the argument of Mr. Sharma to be correct, both parties being in pari delicto none of them could be allowed to take advantage of their wrong.
In fact Mr. Garg counsel for the appellants was fair enough to give up this plea and clearly conceded before the High Court as also in this Court that Musamat Ram Pyari was married in 1955 as found by the Revenue Courts.
Another contention that was advanced before us by counsel for the respondents was that an oral family arrangement was never pleaded before the Revenue Courts and that the appellants relied mainly on the mutation petition as embodying the terms and conditions of the compromise.
In our opinion this contention, apart from being untenable, is not factually correct.
The disputes between the appellant Kale and respondents 4 & 5 arose only after the Naib Tehsildar had, on the application of the appellant, mutated his name in respect of the Khata Numbers in dispute.
An application was filed by respondents 4 & 5 for setting aside that order.
Thereafter both the parties, namely, the appellant and respondents 4 & 5 obtained adjournment from the Court on the ground that they were going to compromise the dispute.
Subsequently the mutation petition was filed which was signed by both the parties.
In the Revenue Courts therefore it was the mutation petition alone which formed the pleadings of the parties and therefore it was obvious that the family arrangement was pleaded by 220 the appellant at the first possible opportunity The family arrangement was again relied upon before the Consolidation officer in Annexure 5 to the writ petition the relevant portion which appears at p. 25 of the Paper Book and runs thus: The parties contested the suit in the panchayat.
They contested it in tahsil also.
The plaintiff produced a copy thereof.
He produced a copy of a compromise in which the defendant gave half of the land to Kale, treating him as dheota of Lachman, although no party now remembers about that compromise." In the final Revenue Court i.e., before the Director of Consideration as also before the High Court the compromise was very much relied upon by the appellant and a finding against the appellant was given both by respondent No. 1 and by the High Court as a result of which this appeal has been filed before this Court.
It was suggested by the respondents that Respondent No. 1 had merely made a stray observation in his order.
This does not appear to be correct, because respondent No. 1 has proceeded on the footing that a compromise was there but it could not be given legal effect because it contravened some provisions of the law.
In this connection the order of respondent No. 1 reads thus: "Even the orders passed in the mutation proceedings on the basis of compromise could not maintain as since the mutation proceedings were of summary nature and the com promise of the parties, even if accepted, was against the pro visions of law, as either Smt.
Ram Pyari could succeed or Kale alone could be deemed to be the successor of Lachman, the last male tenant.
There was no question of both the parties sharing the land in between them on the basis of a compromise made against the provisions of law.
" Respondent No. 1 also indicated in his order that the compromise had taken place before the Naib Tehsildar as alleged by the appellant.
Lastly both the Single Judge and the Division Bench also have proceeded on the basis that there was in fact a compromise between the parties but have refused to give effect.
to the compromise because the same was not registered.
In these circumstances, therefore, the contention of the respondents 4 and 5 on this score must be overruled.
It was then argued that the appellants have adduced no evidence to prove that there was actually a family arrangement between the parties.
We are, however, unable to agree with thus contention There are four important circumstances from which the family arrangement can be easily inferred.
These are; (1) that the parties took adjournment from the Court intimating to it that a compromise was under contemplation; (2) that a petition for mutation was filed before the Court of Assistant Commissioner clearly alleging that a com promise or a family arrangement had already taken place and that mutation should be made accordingly; 221 (3) that in pursuance of the compromise both the parties A took benefit under the same and continued to remain in possession of the properties allotted to them for full seven years and did not raise any objection at any stage before any authority during this period regarding the validity of the compromise; and (4) that even though the U.P. Consolidation of Holdings Act, 1953 contained an express provision for filing of an objection under section 9 (2) when the proceedings for correction of the entries were taken respondents 4 & 5 filed no objection whatsoever and filed their additional written statement at a much later stage.
Thus from the actings and dealings of the parties in the course of several years a family arrangement can clearly be inferred in this case.
Finally the respondents never took any objection before any of the Courts that no family arrangement had as a matter of fact taken place between the parties.
The only objection centered round the admissibility of the document said to have embodied the terms of the compromise.
This contention, therefore, cannot be accepted.
It was then submitted that even the appellant had given a go bye to the compromise and seems to have forgotten all about it.
This is also factually incorrect.
As indicated earlier right from the Court of the Consolidation officer upto the High Court the appellant has always been relying mainly on the compromise entered into between the parties.
Another argument advanced by counsel for the respondents was that the family arrangement was not valid because the appellant had absolutely no title to the property so long as Mst.
Ram Pyari was in lawful possession of the property as the sole heir to Lachman, and if under the family arrangement any title was conveyed to the appellant, the said conveyance can only be by a registered instrument under the provisions of the Registration Act and the Transfer of Property Act.
This argument also, in our opinion, suffers from a serious misconception.
We have already pointed out that this Court has widened the concept of an antecedent title by holding that an antecedent title would be assumed in a person who may not have any title but who has been allotted a particular property by other party to the family arrangement by relinquishing his claim in favour of such a done.
In such a case the party in whose favour the relinquishment is made would be assumed to have an antecedent title.
In fact a similar argument was advanced before this Court in Tek Bahadur Bhujil 's case, (supra) relying on certain observations made by Bose, J., in Sahu Madho Das 's case, (supra) but the argument was repelled and this Court observed as follows: "Reliance is placed on the following in support of the contention that the brothers, having no right in the property purchased by the mother 's ' money, could not have legally entered into a family arrangement.
The observations ' are: It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent 222 title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognizing the right of the others, as they had previously asserted it to the portions allotted to them respectively.
"These observations do not mean that some title must exist as a fact in the persons entering into a family arrangement.
They simply mean that it is to be assumed that the r parties to the arrangement had an antecedent title of some sort and that the agreement clinches and defines what that title is.
" The observations of this Court in that case, therefore, afford complete answer to the argument of the learned counsel for the respondents on this point.
Furthermore the Privy Council in somewhat identical circumstances P upheld the family settlement in Ramgouda Annagouda & others vs Bhausaheb and others(1).
In that case there were three parties to the settlement of a dispute concerning the property of the deceased person.
These were the widow of the deceased, the brother of the widow and the son in law of the widow.
It was obvious, therefore, that in presence of the widow neither her brother nor her son in law could be regarded as the legal heirs of the deceased.
Yet having regard to the near relationship which the brother and the son in law bore to the widow the Privy Council held that the family settlement by which the properties were divided between these three parties was a valid one.
In the instant case also putting the case of respondents 4 & 5 at the highest, the position is that Lachman died leaving a grandson and two daughters.
Assuming that the grandson had no legal title, so long as the daughters were there, still as the settlement was made to end the disputes and to benefit all the near relations of the family, it would be sustained as a valid and binding family settlement.
In the instant case also it would appear that the appellant Kale and Mst.
Har Piari had no subsisting interest in the property so long as Mst.
Ram Piari was alive.
Ram Piari in view of the amendment in law by the U.P. Land Reforms (Amendment) Act, 20 of 1954, continued to be an heir even after her marriage but Mst.
Har Piari ceased to be the heir after her marriage which had taken place before the amendment.
Nevertheless the three children of Lachman in order to bring complete harmony to the family and to put an end to all future disputes decided to divide the property each getting a share in the same.
The appellant Kale got Khatas Nos. 5 & 90 and Mst.
Har Pari 's share was placed along with Mst.
Ram Piari in the other Khatas.
This the appellant and Har Piari & Ram Piari also enjoyed full benevolence under the family arrangement.
We cannot think of a fairer arrangement than this by which not only the property was divided amongst the children of Lachman but even the spirit of the law, which wiped out the invidious distinction between the married and unmarried daughters by the U.P. Act 20 of 1954, was followed.
The facts of the present case, therefore, as we have already indicated, are (1) L.R. 54 I.A. 396.
223 on all fours with the facts in Ramgouda Annagouda 's case (supra).
The Privy Council further held in Ramgouda Annagouda 's case that Ramgouda being a party to benefit by the transaction was precluded from questioning any part of it.
On a parity of reasoning, therefore, the respondents 4 & 5 who were parties to the family arrangement and having been benefited thereunder would be precluded from assailing the same.
For these reasons, therefore, the contention of the learned counsel for the respondents on this point also must be over ruled.
We might mention here that the learned counsel for the respondents relied on two decisions of the Patna High Court in Brahmanath Singh Ors.
vs Chandrakali Kuer and another (1) and Mst.
Bibi Aziman and another vs Mst.
Saleha and others (2) for the proposition that unless a party to a settlement had an antecedent title the family settlement would not be valid.
In view, however, of the decisions of this Court and of the Privy Council the authority of the Patna High Court on this point is considerably weakened and cannot be treated as a good law.
The Patna High Court also held that where the document itself contains or embodies the terms of the family settlement it will be compulsorily registrable but not when it speaks of the past.
In view of our finding that the mutation petition before the Assistant Commissioner was merely a memorandum of the family arrangement, the authority of the Patna High Court does not appear to be of any assistance to the respondents.
Rebutting the arguments of the learned counsel for the appellant, Mr. Sharma for the respondents, contended that no question of estoppel would arise in the instant case inasmuch as if the document was to be compulsorily registrable there can be no estoppel against the statute.
In the first place in view of the fact that the family arrangement was oral and the mutation petition was merely filed before the Court of the Assistant Commissioner for information and for mutation in pursuance of the compromise, the document was not required to be registered, therefore, the principle that there is no estoppel against the statute does not apply to the present case.
Assuming, however, that the said document was compulsorily registrable the Courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it.
This principle has been established by several decisions of this Court as also of the Privy Council.
In Kanhai Lal vs Brij Lal and Anr.(3) the Privy Council applied the principle of estoppel to the facts of the case and observed as follows: "Kanhai Lal was a party to that compromise.
He was one of those whose claims to the family property, or to shares in it, induced Ram Dei, against her own interests and those of her daughter, Kirpa, and greatly to her own detriment, to alter her position by agreeing to the compromise, and under that compromise he obtained a substantial benefit, which he (1) AIR 1961 Pat.
(2) AIR 1963 Pat.
(3) L.R. 45 I.A. 118, 124.
224 has hitherto enjoyed.
In their Lordships ' opinion he is bound by it, and cannot now claim as a reversioner.
This Court in Dhiyan Singh and Anr.
vs Jugal Kishore and Anr.
(1) observed as follows: "We do not think the fact that there was a voluntary com promise whereas here there was the imposed decision of an arbitrator makes any difference because we are not proceeding on the footing of the award but on the actions of the parties in accepting it when they need not have done so if the present contentions.
are correct.
Even if the arbitrator was wholly wrong and even if the had no power to decide as he did, it was open to both sides to accept the decision and by their acceptance recognise the existence of facts which would in law give the other an absolute estate in the properties they agreed to divide among themselves and did divide.
That, in our opinion is a representation of an existing fact or set of facts.
Each would consequently be estopped as against the other and Brijlal in particular would have been estopped from denying the existence of facts which would give Mst.
Mohan Dei an absolute interest in the suit property.
" In view of the principle enunciated in the aforesaid case it is obvious that respondents 4 & 5 would be estopped from denying the existence of the family arrangement or from questioning its validity.
In Ram Charan Das 's case (supra) while dwelling on the point of the family arrangement this Court observed as follows: "It seems to us abundantly clear that this document was in substance a familiar arrangement and, therefore, was binding on all the parties to it.
Moreover it was acted upon by them.
x x x x In our opinion the document on its face appears to effect a compromise of the conflicting claims of Gopinath on the one hand and the pre sent plaintiff Ram Charan Das and his brothers on the other to the estate of Kanhaiyalal.
" At p. 851 this Court pointed out that as the settlement consisted of recognition of the right asserted by each other none of the parties could be permitted to impeach it thereafter.
To the same effect is the decision of this Court in Krishna Bihari lal 's case (supra), where the doctrine of estoppel was discussed, and while referring to the previous cases of this Court, it was observed as follows: "In Dhyan Singh 's case [1952] SCR 478 this Court ruled that even if an award made is invalid, the persons who were parties to that award are estopped from challenging the (1) [1952] S.C.R. 478.
225 validity of the award or from going behind the award in a subsequent litigation.
In T. V. R. Subbu Chetty 's Family Charities vs M. Raghava Mudaliar and Ors. [1961] 3 SCR 624 this Court ruled that if a person having full knowledge of his rights as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponent at the relevant time, he cannot be permitted to go back on that arrangement when reversion actually opens.
At the time of 1 the compromise Lakshmichand and Ganeshilal were the near est presumptive reversioners.
They must be deemed to have J known their rights under law.
Under the compromise they purported to give a portion of the suit properties absolutely to Pattobai, evidently in consideration of her giving up her claim in respect of the other properties.
They cannot be now permitted to resile from the compromise and claim a right inconsistent with the one embodied in the compromise.
" Finally in a recent decision of this Court in section Shanmugam Pillai case (supra) after an exhaustive consideration of the authorities on the subject, it was observed as follows: "Equitable principles such as estoppel, election, family settlement, etc.
are not mere technical rules of evidence.
The have an important purpose to serve in the administration of justice.
The ultimate aim of the law is to secure justice.
In the recent times in order to render justice between the parties, courts have been liberally relying on those principles.
We would hesitate to narrow down their scope.
As observed by this Court in T. V. R. Subbu Chetty 's Family Charities ' case (supra), that if a person having full knowledge of his right as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponents at the relevant time, he cannot be permitted to go back on that agreement when reversion actually falls open.
" In these circumstances there can be no doubt that even if the family settlement was not registered it would operate as a complete estoppel against respondents 4 & 5.
Respondent` No. 1 as also the High Court, therefore, committed substantial error of law in not giving effect to the doctrine of estoppel as spelt out by this Court in so many cases.
The learned counsel for the respondents placed reliance upon a number of authorities in Rachcha vs Mt. Mendha,(1) Chief Controlling 6 Revenue Authority vs Smt.
Satyawati Sood and others(2) and some other authorities, which, in our opinion have no bearing on the issues to be decided in this case and it is therefore not necessary for us to refer to the same Finally it was contended by the respondents that this Court should not interfere because there was no error of law in the judgment of the High Court or that of Respondent No. 1.
This argument is only stat ed to be rejected.
(1) AIR 1947 All.
(2) AIR 1972 Delhi 171.
226 In view of our finding that the family settlement did not contravene any provision of the law but was a legally valid and binding settlement in accordance with the law, the view of Respondent No. 1 that it was against the provisions of the law was clearly wrong on a point of law and could not be sustained.
Similarly the view of the High Court that the compromise required registration was also wrong in view of the clear fact that the mutation petition filed before the Assistant Commissioner did not embody the terms of the family arrangement but was merely in the nature of a memorandum meant for the information of the Court.
The High Court further in law in not giving effect to the doctrine of estoppel which is always applied whenever any party to the valid family settlement tries to assail i The High Court further erred in not considering the fact that even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose of showing the nature and character o possession of the parties in pursuance of the family settlement and a o for the purpose of applying the rule of estoppel which followed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement.
In Shyam Sunder and others vs Siya Ram and another (1) it was clearly held by the Allahabad High Court that the compromise could have been taken into consideration as a piece of evidence even if it was not registered or for that matter as an evidence of an antecedent title.
The High Court observed as follows: "The decision in Ram Gopal vs Tulshi Ram, AIR 1928 All.
641 (FB) is clear that such a recital can be relied upon as a piece of evidence.
It is clear, therefore, that the compromise can be taken into consideration as a piece of evidence.
x x x To sum up, therefore, we are of the view that the compromise could have been relied upon as an admission of antecedent title.
" On a careful consideration of the facts and the circumstances and the law discussed above, we are clearly of the opinion that the orders of the High Court as also that of Respondent No. 1 suffer from a substantial error of law resulting in serious injustice to the appellant by re opening a dispute which had been settled almost seven to eight years before the proceedings for re opening the same were started.
In not interfering to correct the clear error of law committed by Respondent No. 1, the High Court failed to exercise jurisdiction vested in it by law, and, therefore, the order of the High Court itself was legally erroneous and cannot be sustained.
The contentions raised by the appellant are well founded and must prevail, while the contentions advanced by the respondent fail.
In these circumstances, therefore, the appeal is allowed, the judgment of the High Court is set aside and by a writ of certiorari the order of Respondent No. 1 dated January 22, 1965 is hereby quashed.
The (1) AIR 1973 All. 382, 389.
227 order of the Settlement officer dated November 28, 1964 which actually gave effect to the compromise is hereby restored and the Revenue authorities are directed to attest the mutation in the names of the appellant and respondents 4 & 5 in accordance with the family arrangement entered into between the parties referred to in this case.
In the peculiar circumstances of the case there will be no order as to costs.
SARKARIA J. I am at one with my learned Brother, that this appeal should be allowed with no order as to costs and that the order dated January 22, 1965 of Respondent 1 quashed, the order dated November 28, 1964 of the Settlement officer restored, and the Revenue authorities directed to attest the mutation in accordance with the antecedent family arrangement which had been orally arrived at between the parties and acted upon for several years.
I further agree that the family settlement arrived at by the parties was oral, and the petition filed by them on August 7, 1956 before the Assistant Commissioner was merely an information of an already completed oral transaction.
In other words, the petition was only an intimation to the Revenue court or authority that the matters in dispute between the parties had been settled amicably between the members of the family and no longer required determination and that the mutation be effected in accordance with that antecedent family settlement.
Since the petition did not itself create or declare any rights in immovable property of the value of Rs. 100 or upwards, it was not hit by section 17(1)(b) of the Registration Act, and as such was not compulsorily registrable.
The rest of the reasoning in the judgment of my learned Brother has also my concurrence except that I will reserve my opinion with regard to the alternative proposition, whether this petition assuming it was compulsorily registrable under section 17(1) (b) of the Registration Act could be used to raise an estoppel against any of the parties hereto.
Decision of this point, in my opinion, is unnecessary for the disposal of this case.
P.B.R. Appeal allowed.
| The plaintiff appellant had business dealings with the joint family of the defendants.
He had instituted a suit claiming a certain sum of money from the defendants, one of the grounds being that even if the defendants proved that there had been a partition in the family, the family was still liable for the dues pertaining to the ancestral business carried on by all the defendants either as members of the joint Hindu family or as partners of a firm.
Defendant 3 (respondent) stated that there was disruption of the joint family status on November 4, 1945.
when defendants 1 and 2 and his deceased father unequivocally expressed their intention to separate and divided their movables.
He denied that defendants 1 and 2 had ever acted as managers of the joint family.
The trial Court and the High Court concurrently found that the joint family of the defendants had disrupted on November 4, 1945 and that no joint family business was in existence on the date when the last dealing of the plaintiff with the defendants took place.
On appeal to this Court, it was contended that even if the joint family stood disrupted from November, 1945, in the absence of public notice by defendants 1 and 2 regarding the disruption of the joint family, the acknowledgements made by them as karta of the joint Hindu family would be binding on the erstwhile joint family under section 45 of the Partnership Act, 1932.
Dismissing the appeal, ^ HELD: (1) It is the duty of the creditor to ascertain whether the person making the acknowledgement still holds his representative capacity as karta of the family.
The law does not cast any duty upon the members of the family to inform the creditors by a general notice about the disruption of the family.
If the creditor fails to make an enquiry and satisfy himself about the capacity of the executant to represent the family at the time of making the acknowledgement, he does so at his own peril.
Disruption of the joint family status puts an end to the representative capacity of the karta and any acknowledgement of a debt made by him after such disruption cannot save the creditor 's claim from becoming time barred against the other members.
[298B C] Pramod Kumar Pati vs Damodar Sahu, ILR 1953 Cuttack 221; Rengaswami Ayyangar vs Sivprakasem Pillai, ILR ; Mutayala Ramachandrappa vs Mutayala Narayanappa, AIR 1940 Mad. 339, approved.
Kashiram Bhagshet Shete vs Bhaga Bhanshet Redij A.I.R. over ruled.
(2)(a) The Legislature has excluded the joint Hindu trading families from the operation of the Partnership Act.
Section 4 defines partnership as a relation between persons who have agreed to share the profits of a business, and according to section 5 the Act governs only that relation of partnership which arises from contract and not from status such as the one obtaining among the members of a joint Hindu family ' trading partnership, [297C D] 288 (b) The words "manager of a family for the time being" occurring in section 21(3)(b) of the Limitation Act.
indicate that at the time when the acknowledgement was made and signed, the person making and signing it, must be the manager of a subsisting joint Hindu family.
If at the relevant time the joint Hindu family, as such, was no longer in existence, any acknowledgement made by the erstwhile karta of such family cannot keep the debt alive and extend limitation as against all the members of the family, his representative capacity as karta being co terminus with the joint status of the family.
[297F G] (c) Coparceners do not derive their title through the karta of the coparcenaty.
In the instant case defendants 1 and 2 did not fulfil the requirements of sub section
(1) of section 21 of the Limitation Act.
[298A]
|
tition Nos.
5105 13 of 1983.
(Under article 32 of the Constitution of India) M.K. Ramamurthi, Mrs. Indra Sawhney, Mrs. C. Malhotra and M. A. Krishnamoorthy for the Petitioners.
Yogeshwar Prasad, Mrs. Rani Chabra, Gopal Subramaniam and Mrs. Sobha Dikshit for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
The petitioners in this group of petitions under article 32 of the Constitution were inducted as Khandsari Inspectors between March, 1960 and 1964.
Respondents 4 to 19 were also recruited as Khandsari Inspectors on different dates.
Respondents 1 and 2 are the Chief Secretary, Govt.
Of U. P. and the Secretary, Industries respectively of the U. P. Government and respondent No. 3 is the Sugar Commissioner of U. P.
The dispute amongst the petitioners and the respondents 4 to 19 is about inter se seniority between them in the cadre of Khandsari Inspectors.
It appears that in the year 1958 59, the State Government framed what is styled as Khandsari Licensing Scheme ' to regulate the supply of sugarcane to sugar factories by G.O. No. 4588 (1) XVIII A 680/59 dated November 21, 1959.
Posts of Khandsari Inspectors initially designated as Licensing Inspectors were created in the pay scales of Rs. 120 250.
Petitioners Nos. 1, 2 and 3 were appointed as Khandsari Inspectors between March and May, 1960.
Thereafter some of the respondents were recruited as 75 Khandsari Inspectors and some others who were recruited departmentally were approved by the Public Service Commission.
On March 22, 1971, the third respondent the Sugar Commission circulated a provisional seniority list of Khandsari Inspectors.
The grievance of the petitioners is that some of the petitioners have been assigned lower place in the seniority list even though they were recruited earlier and have been continuously in service.
To illustrate, petitioners pointed out that petitioners 1 to 3 have been placed at Serial Nos 25,29 and 27, respectively though all of them were recruits of 1960 while respondent No. 7 J.S. Negi, who was recruited on March 23, 1961 was assigned the place at Serial No. 15 and respondent No.4 O. N. Chaturvedi, who was recruited on March 23, 1961 was shown at Serial No. 6.
Similarly, respondent No. 9 P.N. Rai, who was also recruited on March 23, 1961 was shown at Serial No 17 and respondent No. 5 was shown at Serial No. 8.
The petitioners further pointed out that petitioners Nos. 4, 5, 6, 7 and 8, who were recruits of 1961 have been assigned places Nos. 30, 34, 42, 35 and 31 respectively while recruits of 1963 have scored a march over them in the provisional seniority list.
The petitioners assert that when the recruitment was made in the year 1960, the post of Khandsari Inspector was not within the purview of the Public Service Commission and that they were regularly recruited to posts which were temporarily sanctioned and indefinitely continued till today and therefore, in reckoning the seniority, they must be given the benefit of the length of continuous officiation.
They further contend that when the post of Khandsari Inspector was later brought within the purview of the Public Service Commission, the names of the petitioners who were already recruited in service as also of some of the respondents were forwarded to the Public Service Commission for approval and except petitioner No 9 section P. Gupta, the names of rest of the petitioner were approved by the Public Service Commission on September 30, 1963, the relevant date in the case of petitioner No. 9 is April 14, 1978.
The petitioners assert that even assuming that their appointment would be regular after approval of the Public Service Commission, yet once such approval is granted ' it would relate back to the 76 date of appointment and the previous length of service cannot be ignored or denied in computing their seniority in the absence of any statutory rule or administrative instruction which has the force of law.
The petitioners further aver that in the absence of any other statutory rule or administrative instruction for determining seniority, length of continuous officiation provides a valid principle for determining seniority.
Viewed from this angle, petitioners 1 to 3 would be senior to all the respondents and the placement of the remaining petitioners vis a vis the respondents will have to be recomputed.
On the circulation of the provisional seniority list, the petitioners submitted various representations pointing out the error in drawing up the provisional seniority list but till this day no reply was given nor any final seniority list circulated nor reasons assigned for rejecting the representations.
The petitioners further say that despite their representation, respondents 1, 2 and 3 are operating the tentative seniority list for making further promotions to the post of Khandsari Officer and Assistant Sugar Commissioner and thereby they are being denied equality of opportunity in the matter of promotion.
The petitioners accordingly questioned by these writ petitions the validity and legality of the provisional seniority list asserting that as the final seniority list is not being drawn up and as the representations are being ignored and yet the provisional seniority list is being operated to the disadvantage of the petitioners thereby denying them equality of opportunity in the matter of promotion which action of the respondents 1 to 3 is violative of articles 14 and 16.
Kailash Narain Pandey, Additional Sugar Commissioner filed affidavit in opposition.
It was admitted that by the Govt.
Order dated November 21, 1959 temporary posts of Licensing Inspectors later redesignated as Khandsari Inspectors in the pay scale of Rs. 120 250 were created but according to him as the maximum of the scale was over Rs. 200 right from its inception, the post was within the purview of the Public Service Commission in view of Regulation 5 (a) of Appointment Department Misc.
No. 99/II B 151 60 dated January 29, 1954 issued under the Uttar Pradesh Public Service Commission (Limitation of Func 77 tions) Regulations, 1954.
It was then stated that on the framing of the Khandsari Licensing Scheme, it became necessary to urgently appoint Inspectors to implement the scheme and therefore, the third respondent Sugar Commissioner as Appointing Authority pending regular selection through open competition by the Public Service Commission proceeded to make appointments and the appointment of the petitioners were of a stopgap or ad hoc nature and that it created no right to the post.
It was admitted that petitioners Nos 1 and 2 were recruited after holding departmental competitive test on March 4, 1960.
Petitioner No. 3, who was then working as a Clerk in Cane Union Federation Ltd., Lucknow was selected on May 24, 1960 by applying a weeding out test.
Petitioners Nos.
4 to 8 were recruited after holding qualifying test and interview on 23rd March, 1961 and Petitioner No. 9 was appointed as and by way of stopgap arrangement.
It was contended that the petitioners were appointed on an ad hoc and temporary basis as a measure of stopgap arrangement.
It was conceded that all the petitioners except petitioner No. 9, were approved by the Public Service Commission for regular appointment in the year 1963, to be specific on 30th September, 1963 and they have continued uninterruptedly in the posts of Khandsari Inspectors.
It was further averred that within a period of one year and seven months from the date of appointment of the petitioners the State Public Service Commission selected candidates to replace the already working unapproved Licensing Inspectors on the request of the Department and sent a list of approved candidates on September 14, 1961, but only 5 out of 44 such selected candidates joined and hence the Department has to permit the petitioners to continue though according to the third respondent notice of termination of service were served on some of the petitioners.
It was further pointed out that when the State Public Service Commission proceeded to recommend candidates for the post of Khandsari Inspectors, some of the petitioners applied for such posts, but their applications were rejected at the stage of scrutiny.
But on a request from the Department the State Public Service Commission entertained the applications, called the petitioners for interview and approved them.
It was admitted that except petitioner No. 9 all the rest of the petitioners were approved by the Public Service Commission on September 30, 1963.
Justifying the drawing up of the tentative seniority list as being based on recommendations of Public Service Commission, it 78 was said that the service which can be taken into consideration for determining the length of continuous officiation must commence from the date of substantive appointment and accordingly the provisional seniority list has been drawn up keeping in view the date of approval by the Public service Commission in respect of each candidate.
It was averred that if this principle is valid for the purpose of article 16, there is no error in drawing up the seniority.
It was specifically stated that it was open to the Government to ignore officiating service or service rendered on appointment in an ad hoc or stopgap arrangement.
It was broadly stated that before a man can claim to have his seniority determined in the cadre, he must belong to the cadre and he can only enter the cadre on substantive appointment.
The rival contentions would bring into focus the controversy between the parties.
The impugned provisional seniority list dated March 22, 1971 is drawn up on the length of continuous officiation determined by the date of selection/approval of each person be the State Public Service Commission.
In the process service prior to the approval by the Public Service Commission is wholly ignored while reckoning seniority with the result that the recruits of 1961 have scored a march over those who were recruited earlier in the cadre and have been uninterruptedly officiating in the post and who at a later date were approved by the Public Service Commission for appointment as Khandsari Inspectors.
The question is: where on account of exigencies of service, recruitment to a post within the purview of the Public Service Commission is made by the appointing authority, but at a later date the Public Service Commission puts its seal of approval on such an appointee, whether the continuous and uninterrupted service rendered by such appointee prior to the approval by the Public Service Commission can and should be taken into computation while determining seniority based on the principle of length of continuous officiation ? When a seniority list is challenged as being violative of the guarantee of equality enshrined in articles 14 and 16 and prima facie it appears that these who came into the cadre later on scored a march over those who were already in the cadre, it would be for the authority justifying the seniority list to plead and point out the rule for determining seniority on the basis of which the list is drawn up.
If any such rule is pleaded, it would be for those impugning the seniority list to aver and establish that the alleged seniority 79 rule is violative of the fundamental rights guaranteed by articles 14 and 16.
In the affidavit in opposition filed by the Additional Sugar Commissioner on behalf of respondents 1 to 3, it was asserted that the impugned seniority list of the Khandsari Inspectors was drawn up on the principle of the length of continuous officiation reckoned from the date of selection/approval by the Public Service Commission in respect of each employee belonging to the cadre.
It is necessary to refer to this aspect because the averment is vague and of a general nature and later on at the hearing of the petitions reliance was placed on memo No. O 66/II 233 1938 dated January 30, 1940 ( '1940 Order ' for short) for sustaining the seniority list, the affidavit being conspicuously silent with regard to this order.
There is not a whisper of the 1940 Order in the whole of the affidavit in opposition.
However, if the respondents would be in a position to justify the seniority list on any existing statutory rule or administrative instruction which has been invariably followed, it would not be proper to attach too much importance to the vagueness in drawing up pleadings shifting, the stand in the course of the proceedings.
It must, however, be made clear that Mr. Gopal Subramaniam, learned counsel who appeared for respondent No. 1 to 3 attempted to reconcile the averments in the affidavit and the oral submissions made at the hearing of the petitions by urging that when it is said in the affidavit that the seniority in respect of each member of the cadre was reckoned on the principle of length of continuous officiation commencing from the date of selection/approval of each member by the State Public Service Commission respondents 1 to 3 had the 1940 Order in mind.
It is therefore, necessary first to examine the nature and character of the 1940 Order and whether it lays down either by way of a statutory rule or administrative instruction a binding rule of seniority for determining the seniority in the cadre of Khandsari Inspectors.
If it does, it will have to be further ascertained whether upon its true construction, the relevant rule excludes any service rendered by a member of the service prior to his approval/selection by the State Public Service Commission.
The 1940 Order styled as a Memorandum was not annexed to the affidavit in opposition.
A copy of it was submitted at 80 the time of hearing of the petitions.
In its preamble it proceeds to recite that in view of the 'Appointment Department Memorandum No. 233(1)/II 38 dated July 27, 1939 the Department of Secretariat are informed that under Section 241 (1) (B) and (2) (b) of the Government of India Act, 1935, rules have to be framed for appointment to the civil services and posts and conditions of services of persons serving. ' It further proceeds to state that the existing rules for the various provincial specialist and subordinate services under the Government should be revised so as to bring them to conformity with the provisions of the Government of India Act, 1935 and new rules should also be drawn up for services and posts which existed prior to April 1, 1937 but for which no rules were framed, or which have been created after that date. ' The 1940 Order further recites that enquiries are being received as to the lines on which either the old existing rules have to be revised or new rules have to be framed.
It then states that 'the general principles which have been accepted by Government are stated below ' Para 2 of the Order, clearly brings out the nature and character of the 1940 Order, the relevant portion of which reads as under: "2.
Among other things the rules should provide for the following matters." At Item No. 11, seniority is mentioned.
Elaborating how the rule about seniority should be drawn up, the memorandum proceeds to prescribe guidelines as under: "Seniority in service shall generally be determined from the date of substantive appointment to a service, or from the date of the order of first appointment, if such appointment is followed by confirmation.
In special cases seniority may be determined in accordance with the conditions which may suit a particular service." After extensively referring to the 1940 Order, it was urged on behalf of the respondents that the impugned seniority list is drawn up keeping in view the date of appointment, the date 81 of selection/approval by the Public Service Commission, which is the relevant date for the purpose of computing seniority under G.O. of 1940 and the date of confirmation by the department and date of promotion.
The first question is: does the 1940 Order lay down a binding rule of seniority in respect of Khandsari Inspectors ? It may at once be made clear that the cadre of Khandsari Inspectors was first formed under 'Khandsari Licensing Scheme ' which was framed somewhere in November, 1959.
It is difficult to believe that two decades earlier, a seniority rule for a future cadre was prescribed.
It is of course open to the Government to lay down general conditions of service governing all services in the State either by rules framed under Sec.
241 of the Government of India Act, 1935 or on the advent of the Constitution under the proviso to article 309 of the Constitution.
It must be conceded that in the absence of statutory rules, conditions of service in a particular cadre may be governed by executive instructions issued by the Government in exercise of its executive power.
At any rate, 1940 Order does not purport to lay a statutory rule framed under Sec.
241 of the Government of India Act, 1935 because the memorandum recites that in view of the provisions contained in Sec.
241, rules have to be framed for appointment to civil service and posts and conditions of service of persons serving.
It further recites that rules will have to be framed in respect of services which may be created for the first time after the advent of the Government of India Act, 1935.
The memorandum further provides that whenever there is an occasion for framing statutory rules or issuing executive instructions governing conditions of service, there must be some uniformity in this behalf and accordingly the memorandum proceeded to point out what should generally be the contents of the rules and on what model they should be framed.
Therefore, unquestionably the memorandum prescribes guidelines for framing rules governing conditions of service.
The memorandum is something akin to model standing orders.
At any rate it does not purport to prescribe statutory rules or executive instructions governing conditions of service.
82 This further becomes clear from the penultimate paragraph of the memorandum in which it is stated that the principles set out in the memorandum will be generally suitable for service or posts recruitment to which is conducted through the Public Service Commission and whenever the departure is made the same should be justified.
Directions are given by the memorandum that the departments of the Secretariat should proceed with the revision of the existing service rules or frame rules for new service and posts under their control in accordance with the principles set out in the memorandum.
The departments were directed to draw up the draft rules and when ready they were required to be submitted for the scrutiny of the appointment department and should be accompanied by a self contained note in which the important points and deviation from the above principles should be explained and justified.
It is thus abundantly clear that the memorandum of 1940 merely prescribed guidelines for the departments of the Secretariat either to frame statutory rules or executive instructions governing conditions of service in respect of existing services, if there are no rules or they may be modified or amended so as to bring them generally in conformity with the 1940 Order and whenever a new post or a new cadre in a service is set up to frame rules in conformity with guidelines prescribed in 1940 Order.
The 1940 Order does not purport to lay down conditions of service governing any cadre either specifically or generally.
It provides a model and unless the model is adopted, it is commonsense to say that it is not binding.
Therefore, the contention that 1940 Order prescribes binding conditions of service and which have been followed in drawing up the seniority list does not commend to us and must be rejected.
Assuming that in the absence of any specific rule to the contrary having not been shown to have been adopted, the Department accepted the model as the binding one, the next question is: whether upon its true construction it permits previous service to be wholly ignored in reckoning seniority.
The model set out at Item No. 11 governing seniority merely enacts the well known rule of seniority in Government Service, namely, seniority being determined in accordance with length of continuous officiation.
In the absence of any other rule valid for 83 determining seniority under article 16 rule or seniority being determined by the length of continuous officiation has been accepted as valid by the courts.
In a very recent opinion of this Court in P.S. Mahal and Ors.
vs Union of India and Ors.
Bhagwati, J. after referring to Bishan Sarup Gupta vs Union of India observed as under: "There was no specific seniority rule to determine inter se seniority between the direct recruits and the promotees appointed regularly within their respective quota from and after 16th January, 1959 and though, in the absence of any specific seniority rule, the Court could have applied the residuary rule based on length of continuous officiation, the Court did not do so because it felt that since the old seniority rule had ceased to operate by reason of the infringement of the quota rule, it would be for the Government to devise "a just and fair seniority rule as between the direct recruits and the promotees for being given effect to from 16th January, 1959." Therefore, in the absence of any specific rule of seniority governing a cadre or a service, it is well settled that length of continuous officiation will provide a more objective and fair rule of seniority.
And that is exactly what the model in the memorandum prescribes.
It says that seniority in service shall generally be determined from the date of substantive appointment to a service.
If the rule were to stop here, the question would arise: what constitutes substantive appointment to a post within the purview of the Public Service Commission ? But the rule does not stop by merely saying that the seniority shall generally be determined from the date of substantive appointment to a service.
It further provides that it may be determined commencing from the date of the order of the first appointment, but proceeds to qualify the last clause by providing: 'if such appointment is followed by confirmation '.
In other words, a rule for determining seniority may provide length of continuous officiation from substantive appointment or from the date of the order of the first appointment if such appointment is followed by confirmation.
In the latter case, once confirmation is made and the service till then is uninterrupted and continuous it relates back to the date of the order of the first appointment.
84 Now model Rule 11 suggests as guidelines two independent principles for determining seniority, namely (1) seniority be reckoned from the date of substantive appointment and (2) from the date of the order of first appointment, if such appointment is followed by confirmation.
Two different starting points for reckoning seniority are set out in the model and it is difficult to assume that department adopted one and rejected the other without making a specific rule in that behalf.
The question that can then be posed is: what constitutes substantive appointment in a cadre which is within the purview of the Public Service Commission.
Now the cadre of Khandsary Inspectors was formed in 1959.
There is no material to show that at that time it was within the purview of the Public Service Commission.
A vague statement was made that under the Uttar Pradesh Public Service Commission (Limitation of Functions) Regulations, 1954, any post with a sanctioned scale, the maximum of which exceeds Rs. 200/ would be within the purview of the Public Service Commission.
It was therefore, said that the post of Khandsari Inspector was within the purview of the Public Service Commission.
It was then urged that as the 'Khandsari Licensing Scheme ' was to be urgently implemented, the appointing authority filled in the posts pending recruitment by the Public Service Commission.
This statement is not borne out by the record.
On May 4, 1960, 9 persons including petitioners Nos. 1 and 2 were temporarily appointed as Licensing Inspectors.
The appointment order does not show that the appointment was pending selection of regular candidates by the Public Service Commission.
In fact, some confusion in this behalf crept in because a statement was made at the hearing of these petitions that the post of Khandsari Inspectors came within the purview of the Public Service Commission in 1961.
Undoubtedly, the post of Licensing Inspector was created in the first instance upto March, 31, 1960.
But it may be mentioned that it has continued uninterruptedly till today and has become a permanent cadre.
Identical appointment orders was issued in favour of petitioner No. 3 some of the petitioners including petitioners Nos. 4, 5, 6, 7 and 8 and some of the respondents including respondents Nos. 4, 5, 6, 7 and several others came to be appointed by the Order dated March, 23, 1961.
(Annexure 'B ' to the petition).
In this appointment order it was clearly stated that 'on the result of the qualifying test and interview held for the posts of Khandsari Inspectors in the months of February, and March, 1961, the candidates as noted in the enclosed list are temporarily appointed as officiating Khandsari Inspectors in 85 the scale of Rs. 120 6 210 EB 10 250 plus usual dearness allowance per month subject to final selection by Public Service Commission at any later date. ' The recitals in the order do not spell out that the appointees were to hold stop gap arrangement till a candidate by the Public Service Commission is made available.
On the contrary, the recitals clearly indicate that those appointees will have to face the approval test by the Public Service Commission.
Now if petitioner Nos. 1 and 2 came to be appointed in 1960 and respondents 4, 5 and 6 came to be appointed in 1961 and the appointment of each of them had to be approved by the Public Service Commission, once the approval is granted, the same will relate back to the date of first appointment.
That is the meaning of the expression in Model No.11; 'or from the date of the order of the first appointment, if such appointment is followed by confirmation. ' It is not disputed that all the petitioners except Petitioner 4 were approved by the Public Service Commission on September, 30, 1963 and yet respondent No. 7 J.S. Negi is shown at section No. 17 while petitioner No. 1 who joined service on March, 4,1960 and whose appointment was approved on the same day has been assigned section No. 27 in the seniority list.
If the first appointment is made by not following the prescribed procedure but later on the appointee is approved making his appointment regular, it is obvious commonsense that in the absence of a contrary rule, the approval which means confirmation by the authority which had the authority power and jurisdiction to make appointment or recommend for appointment, will relate back to the date on which first appointment is made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation.
That had not been done in this case.
Therefore, assuming that the model principle set out in the 1940 Order has a binding effect, the impugned seniority list does not conform to the prescribed guideline and would certainly be invalid.
Once it is shown that the 1940 Order did not prescribe any binding rule or seniority, but it was a model prescribed for adoption and the adoption having not been shown, it cannot prescribe a binding rule of seniority.
Assuming that it is deemed to have been adopted the seniority list does not conform to the model as interpreted by us.
Now if there was no binding rule of seniority it is well settled that length of continuous officiation prescribes a valid principle of seniority.
The question is from what date the service is to be reckoned ? 86 It was urged that any appointment of a stop gap nature or pending the selection by Public Service Commission cannot be taken into account for reckoning seniority.
In other words, it was urged that to be in the cadre and to enjoy place in the seniority list, the service rendered in a substantive capacity can alone be taken into consideration.
We find it difficult to accept this bald and wide submission.
Each case will depend upon its facts and circumstances.
If a stop gap appointment is made and the appointee appears before the Public Service Commission when the latter proceeds to select the candidates and is selected, we see no justification for ignoring his past service.
At any rate, there is no justification for two persons selected in the same manner being differently treated.
That becomes crystal clear from the place assigned in the seniority list to petitioner No. 1 in relation to respondent No. 7.
In fact if once a person appointed in a stop gap arrangement is confirmed in his post by proper selection, his past service has to be given credit and he has to be assigned seniority accordingly unless a rule to the contrary is made.
That has not been done in the case of all the petitioners.
The error is apparent in the case of petitioner 1 and respondent No. 7.
These errors can be multiplied but we consider it unnecessary to do so.
In fact a fair rule of seniority should ordinarily take into account the past service in the stop gap arrangement is followed by confirmation.
This view which we are taking is borne out by the decision of this Court in Baleshwar Dass and Ors.
vs State of U.P. and Ors.
, wherein this Court observed that the principle which has received the sanction of this Court 's pronouncement is that 'officiating service in a post for all practical purposes of seniority is as good as service on a regular basis.
It may be permissible, within limits for government to ignore officiating service and count only regular service when claims of seniority come before it, provided the rules in that regard are clear and categorical and do not admit of any ambiguity and cruelly arbitrary cut off of long years of service does not take place or there is functionally and qualitatively, substantial difference in the service rendered in the two types of posts. ' It was said that service rules will have to be reasonable, fair and not grossly unjust if they are to survive the test of Articles 14 and 16.
It is thus well settled that where officiating appointment is followed by confirmation unless a contrary rule is shown, the service rendered as officiating appointment cannot be ignored for reckoning length of continuous officiation for determining the place in the seniority list.
Admittedly, that has not been done and the seniority list is drawn 87 up from the date on which the approval/selection was made by the Public Service Commission in respect of each member of the service, which is clearly violative of article 16, and any seniority list drawn up on this invalid basis must be quashed.
A grievance was made that the petitioners have moved this Court after a long unexplained delay and the Court should not grant any relief to them.
It was pointed out that the provisional seniority list was drawn up on March, 22, 1971 and the petitions have been filed in the year 1983.
The respondents therefore submitted that the court should throw out the petitions on the ground of delay, latches and acquiescence.
It was said that promotions granted on the basis of impugned seniority list were not questioned by the petitioners and they have acquiesced into it.
We are not disposed to accede to this request because respondents 1 to 3 have not finalised the seniority list for a period of more than 12 years and are operating the same for further promotion to the utter disadvantage of the petitioners.
Petitioners went on making representations after representations which did not yield any response, reply or relief.
Coupled with this is the fact that the petitioners belong to the lower echelons of service and it is not difficult to visualise that they may find it extremely difficult to rush to the Court.
Therefore, the contention must be rejected.
In view of the discussion, these petitions succeed and are allowed and a writ in the nature of certiorari is issued quashing the impugned seniority list dated March 22, 1971 in respect of Khandsari Inspectors.
The respondents 1 to 3 are directed to draw up a fresh seniority list based on the principle of length of continuous officiation reckoned from the date of first appointment if the appointment is followed by confirmation i.e. selection/approval by the State Public Service Commission.
We order accordingly, but in the circumstances of the case, there will be no order as to costs.
N.V.K. Petitions allowed.
| A petition for withdrawing a writ petition pending in the High Court to the Supreme Court under Article 139A (1) of the Constitution mentioned nothing else except that the writ petition pending in the High Court raised exactly the same questions as those raised in a special leave petition pending in the Supreme Court.
What the questions were and what the facts of the cases were was not disclosed.
Dismissing the petition, ^ HELD: It is most discourteous and disrespectful to the highest court in the country to file such indifferent petitions.
The advocate; is not discharging his duty either to the court or to the client.
[200 C]
|
Appeal No. 2241 of 1970.
Appeal by special leave from the judgment and order dated April 15, 1969 of the Mysore High Court in Writ Petition No. 2071 of 1967.
M. C. Setalvad and R. V. Pillai; for the appellant.
B. R. L. Iyengar and A. G. Ratnaparkhi, for respondent No. The Judgment of the Court was delivered by Mitter, J.
In this appeal by special leave the appellant challenges the decision of the Mysore High Court quashing his ,appointment as a University Grants Professor in Sanskrit by the Board of Appointments on the sole ground of non compliance with Rule 5 of the Supplementary Rules promulgated under the Mysore University Act, 1956.
That rule provides : "The Board of Appointments shall give, in writing the reasons for the selection of any candidate and also the basis on which the selection has been made and always give in writing the reasons for overlooking the claims of those who are seniors (i.e. total service as teacher) and/or have higher qualifications.
" The facts are as follows.
The appellant and the main con testing respondent have the same academic qualifications.
The ,a appellant joined the University as a lecturer in 1945 and he was appointed a temporary Reader in Sanskrit under the University Grants Commission Scheme which was distinct from other University appointments.
He was appointed a permanent Reader in the University under the said Scheme in April 1960.
The first respondent had joined the University as a lecturer in 1938 i.e. seven years before the appellant.
He was appointed a Reader ,under the University Grants Scheme in January 1961 i.e. several months after the appellant.
In December 1965 the appellant was placed as the Head of the Department of Sanskrit.
It appears that in 1967 an appointment had to be made as Professor in the University Grants Scheme, the top position in the department.
The ,claims of the appellant, the first respondent and two other persons were considered by the Board of Appointments.
They were also interviewed by the Board and on June 9,1967 the appellant was given the said appointment.
This was later approved of by the ,Chancellor of the University on June 29, 1967.
The first respondent filed a Writ Petition in the High Court challenging the appointment of the appellant under article 226 of 623 the Constitution on various grounds but the infraction of, rule 5 set forth above was not one of them.
The High Court, however on an application made for the purpose allowed the ground to be raised but the learned single Judge dismissed the writ petition.
The: first respondent filed an appeal which was heard by a Division Bench of the High Court.
The High Court turned down all but the contention based on rule 5 above and took the view that the said rule was a mandatory provision and it was incumbent on the Board of Appointments to state in writing why the first respondent although he had longer teaching experience was passed over in favour of the appellant before us.
According to the Division Bench the appointment of the appellant became invalid for this non compliance of rule 5 by the Board of Appointments.
The order of appointment was quashed by the High Court with a direction that the University should make an appointment in accordance with law.
This judgment was rendered on April 15, 1969.
The appellant 's application for a certificate being turned down by the High Court, he filed an application for special leave before this Court on 9th September 1969 along with a petition for stay of the order of the High Court.
On the application being moved on September 22, 1969 the respondents were directed to show cause why special leave should not be granted but an interim stay was granted to the effect that the matter of a fresh appointment as a result of the quashing of the order of the appellant 's appointment was not to be placed before the Chancellor for his approval under section 26(4) of the Mysore University Act.
This was occasioned by the fact that the University had taken steps to make another appointment necessitated by the order of the Division Bench of the High Court and had asked the appellant to appear at an interview for the purpose fixed on September 21, 1969.
On affidavits being filed this Court after hearing the parties passed an order on November 14, 1969 modifying the earlier order of stay to the effect that the order of the High Court was to remain suspended till the disposal of the special leave petition and as soon as the Chancellor had decided the case, the parties were to be at liberty to mention the matter to this Court and in the meanwhile the appellant was to continue as Professor.
On a clarification of the Court 's order being sought for, an order was passed on August 26. 1970 to the effect that the Chancellor was free to deal with the matter notwithstanding that the application for special leave was pending in this Court.
It appears that the Board of Appointments re constituted after the decision of the High Court had advised the appointment of the first respondent as Professor and the Chancellor, in the circumstances of the case felt that he should not come to any decision during the pendency of the matter before this Court.
The Chancellor 's order was made on November 11, 1970.
On December 11, 1970 this Court granted special leave to the appel 624 lant and directed the stay to continue till the disposal of the appeal.
Although we have set out what transpired after the presentation of the special leave petition to this Court in September 1969 to give a complete picture of the events concerning the appointment of a Professor under the University Grants Scheme, we do not propose to take any notice of what the Second Board of Appointments did.
In our view, if the action of the Board of Appointments taken on June 9, 1967 and approved of by the Chancellor on June 26, 1967 was valid, the Board would have no jurisdiction to consider the matter for a second time.
The position in law appears to be as follows.
The Mysore University Act, 1956 came into force on October 3, 1956.
section 13 ,of the Act sets out the authorities of the University which include inter alia the Senate, the Syndicate, the Academic Council and the Board of Appointments.
Different sections following the above prescribe the powers and functions of the Senate, the Syndicate and their authorities.
Section 26 concerns the Board of Appointments.
Sub section
(1) of this section provides : "Appointments to the staff of the University shall be made in accordance with the rules made by the Chancellor in consultation with the Syndicate." Sub section
(2) shows how the Board of Appointments is to be constituted for the purpose of making appointments of Professors, Readers and Lecturers.
The Board is to consist of (1) the Vice Chancellor who was to be the ex officio Chairman, (2) the Head ,of the University Department in the subject concerned, except where the appointment to be made was the post of the Head of the concerned Department, (3) one member who was to be an expert in the subject concerned selected from outside the University by the Syndicate and (4) another person who was to be an expert in the subject concerned selected from outside the University by the Chancelor.
Under sub section
(4) "The decisions of the Board and in such cases as may be prescribed by the Chancellor, the decision of the Vice Chancellor shall not have effect unless approved by the Chancellor; thereafter, every such decision shall be final and shall not be called in question in any manner.
" The Mysore University Staff (Appointment) Rules came into froce on October 24, 1964.
Some supplementary Rules of re. cruitment governing the appointment of University teachers were approved by the Governor under section 26 of the Act on 8th April 1967 and these were published on May 25, 1967.
Rule 5 men 625 tioned above is one of these rules.
Rule 3 of the Supplementary Rules shows that the Board of Appointment was to be provided at the meeting with all relevant information about every candidate regarding his qualification, seniority, teaching experience and research work and under, rule 4 the Dean and the Head of the Department who were to be associated with the Board were to prepare a note regarding qualification, work etc.
of the candidate who had served in the department under them and give their opinion in writing to the Board of Appointment.
This rule further prescribed that the claims of the "senior (most)" teachers with approved service who acted in that vacancy for ' a long time shall be given due consideration.
After interviewing the candidates the Board of Appointments made its written recommendation as follows "The Board took into consideration the academic qualifications, research and teaching experience and the performance during the interview of the four candidates who appeared for the interview.
The Board in consultation with the Dean of the Faculty of Arts, unanimously resolved that Dr. G. Narulasiddiah be appointed Professor of Sanskrit on a starting salary of Rs. 1,000/ P.M. in the scale of Rs. 1000 50 1500 subject to the usual period probation nor two years.
If rule 5 is to be observed in its latter and not according to its true intent it must be said that the Board of Appointments failed to give in writing expressing the reasons for overlooking the claims of the first respondent whose total service as a teacher undeniably exceeded that of the appellant.
According to the High Court: " .
the clear intendment of rule 5 is that a superior claim to an appointment flows out of the seniority to which it refers and that that claim should not be overlooked except for reasons to be stated in writing and since the resolution of the Board of Appointments with which we are concerned does not state any reason for the supersession of such claim with which the petitioner became clothes under the rule, we are inclined to the view that the appointment becomes invalid for that reason.
" We find ourselves unable to accept the above dictum of the High Court.
In our view the rule was not intended to load the dice in favour of someone merely because of longer experience as a teacher.
The Proper construction of that rule is to regard the length of teaching experience as one of the important factors to be taken into consideration by the Board of Appointments.
However much may be the importance of the length of teaching experience the 6 2 6 rule did not provide that as the determining factor.
The rule did not lay down all the factors which were to be considered by the Board in making their selection.
Of necessity they had to consider: the academic qualifications of the respective candidates including that of the quality of their teaching and of the research work if any to their credit, their past experience and the impression which they created in the minds of the persons constituting the Board '.
Rule 5 laid particular stress to the total length of teaching experience of the candidates but it was not meant to outweigh other consideration.
In this case it appears that the academic qualifications of the appellant and the first respondent were, of the same standard.
In mere length of service the first respondent certainly was superior to the appellant.
But that by itself would not tip the scale in his favour.
The recommendation of the Board clearly shows that one of the factors which they had taken into consideration was "teaching experience" and in 1967 when the appointment was made the appellant had to his credit a period of 22 years of teaching experience while the first respondent had 29 years of service to his credit.
It is not as if the appellant was a man very much junior in age to the first respondent with a career in teaching far shorter than or negligible compared to that of the first respondent.
It must also be noted that when there was a question of appointing a temporary Reader under the University Grants Scheme in 1958 it was the appellant who was given preference to the first respondent and even as a permanent Reader he secured the appointment some months ahead of the first respondent.
The preference given to him in the past was certainly one of the factors to be taken into consideration.
In our view it would be giving preference to the letter of the rule than to its spirit if we were to hold that the recommendation of the Board of Appointments was to be treated as invalid merely because they had failed to state, in clear words, that the appellant was preferred to the first respondent although the latter had a longer period of service as a teacher.
Mr. Setalvad appearing for the appellant drew our attention to Seniority Rules which were framed with the approval of the Chancellor and came into force on 30th March 1969 during the pendency of the matter before the Division Bench of the Mysore High Court.
Rule 7 of these rules provides that : "Teachers appointed to a class of post in the University Grants Commission scale shall be deemed senior to teachers holding the same class of posts in the University scale.
" Reference was made to this rule for the purpose of showing that the appellant who had been a Reader under the University Grants 627 Scheme nearly three years before the &St respondent would be senior to him in terms of the rule if it had been in force And even otherwise counsel contended that the mere fact that the appellant had preceded the first respondent in appointment tinder the Said scheme showed that his preference over the first respondent was, not undeserved.
We do not think that we can take into account rule 7 for the purpose of our decision in this case.
Mr. Setalvad 's second contention was that it was apparent from the recommendation of the Board that rule 5 was substantially complied with and as such the High Court should not have set aside the appointment of the appellant.
He also placed reliance on sub section
(4) of section 26 as giving a finality to the approval of the Chancellor to the appointment made by the Board.
Mr. Ayyangar appearing for the first respondent contended, first, that rule 5 was divided into two parts and that the provision for a statement in writing giving reasons for ignoring a person 's total length of service as a teacher had to be complied with by the Board and any disregard of this rule rendered the appointment invalid.
Counsel argued that the rules had statutory force and the mere approval of the Chancellor under, sub section (4) of section 26 of ' the Act did not put a seal on the case so as to prevent from scrutiny the disregard of any mandatory provision of the rules framed under section 26(1) and approval of the Chancellor would not cure such illegality.
In our view, rule 5 was substantially corn plied with by the Board and the failure to record expressly the reason for disregarding the greater length of service of the first respondent did pot vitiate the appointment per se.
At best it was an irregularity which was cured by the approval of the Chancellor.
Mr. Setalvad 's last contention was that the High Court had gone wrong in quashing the appointment but should have rele gated the matter back to the Board of Appointments to comply with the requirements of r. 5 and for this he relied on two English decisions in Iveagh (Earl) vs Minister of Housing etc.(1) and Brayhead Ltd. vs Berkshire County Council(2).
In the view we have taken it is unnecessary to consider the last point raised by counsel or the effect of these two decisions.
The Board of Appointment was constituted of four persons who were eminently fitted to assess the relative merits of the candidates before them at the interview and their recommendation shows that although they had not expressly recorded any reason in terms of the rule, they had taken the teaching experience of the candidates into consideration.
Our conclusion might have been otherwise if it were shown that the Board had not considered the length of teach (1) (2) 628 ing experience of the candidates as one of the, factors for coming their decision.
In the result we allow the appeal and set aside the order of the High Court holding that the appellant was validly appointed as a Professor under the University Grants Scheme.
In the circumstances of the case, we leave the parties to bear their own costs.
Before parting with this case we cannot but express our dis approval in noting that the canker of litigiousness has spread even to a sphere of life where discipline should check ambition concerning personal preferment.
A teacher is justified in taking legal action when he feels that a stigma or punishment is undeserved but he is expected to bear with fortitude and reconcile himself to his lot suppressing disappointment when he finds a co worker raised to a position which he himself aspired after.
K.B.N. Appeal allowed.
| An enquiry under the provisions of the Travancore Public Servants (Inquiries) Act, (Act XI of 1132) was held against the petitioner in pursuance of a resolution passed by the Council of Ministers.
The petitioner took part in the proceedings, denied the charges and raised legal objection to the competence of the Enquiry Commission to hold the enquiry.
Some of the charges were held proved.
The petitioner was asked by the Chief Secretary to show cause why be should not be removed from service.
The petitioner 's request for extension of time to show cause was granted twice but refused a third time.
On his failure to avail himself of the opportunity to show cause against the action proposed to be taken against him, the report of the Enquiry Commissioner was submitted to the Public Services Commission and the latter approved of the action proposed to be taken against the petitioner.
The proceedings relating to the enquiry were submitted to the Rajpramukh and thereupon an order in proper form for the removal of the petitioner from service was made by the Rajpramukh and authenticated by the Chief Secretary to Government.
Held, (i) that under the provisions of article 311 of the Constitution a civil servant is entitled to have a reasonable opportunity to defend himself and show cause, both at the time of enquiry into the charges brought against him and at the stage when definite conclusions have been come to on the charges and the actual punishment to follow is provisionally determined upon.
The position cannot be characterised as anomalous if the statute contemplates a reasonable opportunity at more than one stage.
In the present case the petitioner had reasonable opportunity to enter upon his defence at both the stages.
He fully availed himself of the first opportunity, but refused to avail himself of the second opportunity which was offered to him.
All the rules of natural justice were observed in the case.
(ii) The provisions of article 166(1) and (2) are directory, not mandatory; and, in order to determine whether there has been compliance with the said provisions, all that is necessary to see is that the requirements of the sub sections are met in substance.
(iii) After the integration of the two States of Travancore and Cochin, the expression " Our Government" means "The Council of Ministers" under the new set up of democratic Government in the United State.
The Rajpramukh as the head of the State is merely at constitutional head and is bound to accept the advice of his Ministers.
(iv) The consultation envisaged by article 320(3) does not extend to review petitions which the petitioner may choose to file as many times as he likes.
(v) The sanction of the Rajpramukli under article 20 of the Covenant of the United State of Travancore Cochin is necessary only before the institution of civil or criminal proceedings.
Departmental proceedings do not fall within the ambit of the said Article.
1013 Dattatreya Moreshwar Pangarkar vs The State of Bombay ([1952] S.C.R. 612), referred to.
|
Appeal No, 208 of 1955.
Appeal from the judgment and decree dated November 27, 1951, of the former Nagpur High Court, in Second Appeal No. 169 of 1947, arising out of the judgment and decree dated February 3, 1947, of the First Additional District Judge, Amraoti in Civil Appeal No. 85 A of 1946, against the judgment and decree dated December 20, 1945, of the Civil Judge First Class, Ellichpur, in Civil Suit No. 1 of 1943.
W. section Barlingay and A. G. Ratnaparkhi, for the appellant.
H. J. Umrigar and Sardar Bahadur, for respondent No. 1.
R. Ganapathy Iyer, M. P. Nathwani and R. H. Dhebar, for respondent No. 2. 1960.
January 12.
The Judgment of the Court was delivered by section K. DAS J.
This is an appeal on a certificate section K. Da,, J. granted.
by the High Court of Nagpur under clause (c) 712 of Article 133(1) of the Constitution to the effect that the case is a fit one for appeal to this Court.
It raises some important questions as to the right of the revenue authorities of the State Government concerned, to resume certain lands which are known as " patel ki huq inam " lands situate in what was previously known as the ceded area of Berar.
The plaintiff Bhagwantrao Shivaji Patel (Bhagwantrao, to give his short name) is the appellant before us.
Vishwasrao Patel.
who was defendant No. 2 in the suit, is now respondent No. 1.
Originally, the Provincial Government of the Central Provinces and Berar was defendant No. 1, and now the State of Bombay is respondent No. 2 before us.
Formerly, the lands in suit lay within the province of Central Provinces and Berar; later they fell within the State of Madhya Pradesh, and now they are in Bombay.
The relevant facts which have given rise to the appeal may now be shortly stated.
The lands in suit were comprised in six survey numbers stated in paragraph one of the plaint.
They lay in village Nawabag, a jagir village, of Ellichpur (now called Archalpur) taluq of Berar, and we shall hereinafter give some more details of that jagir.
In that village there were four families of Patels some members of which held the Patel 's office in rotation of ten years each.
These four families went by the surnames of Dongre, Rokade, Raut and Ingle.
We are concerned with the Rokade family.
One Shivajirao of that family had two sons, called Amrit and Bhagwant.
Bhagwant, as we know, is the appellant before us.
Vishwasrao, respondent No. 1, is the son of Amrit.
Shivajirao died sometime in 1886.
His son Amrit died in 1920.
In 1923 there was a partition between the appellant and respondent No. 1.
The case of the appellant was that as a result of this partition, the " patelki inam " lands were divided and the lands in suit were allotted to the share of the appellant.
When Shivajirao was alive, he worked as patel; so did Amritrao in his turn.
Lastly, Vishwasrao also worked as patel.
In 1935 a special officer was appointed by Government to prepare a record of rights of the jagir village of Nawabag.
This 713 officer submitted a report on which certain enquiries were made.
As a result of these enquiries it was held that the appellant was not entitled to hold the "patelki inam" lands which were given as emoluments of his office to the working patel from the Rokade family.
It was ordered by the Deputy Commissioner that the lands in possession of the appellant should be resumed and regranted to the working patel, viz., respondent No. 1.
The appellant appealed against this order.
The Commissioner of Berar set aside the order of eviction, but maintained the status quo pending final orders of Government.
Ultimately, on December 19, 1941, the Financial Commissioner held that the person actually working as patel was entitled to receive the full emoluments of his office, and revenue officers had consistently refused to admit any claims to shares in patelki emoluments.
Accordingly, he set aside the order of the Commissioner and restored that of the Deputy Commissioner.
Thereupon, the appellant brought his suit in 1942 in which he claimed that the Government had no jurisdiction or authority to resume and regrant the lands to respondent No. 1 and the orders passed by the revenue authorities concerned were null and void.
The appellant asked for possession and mesne profits.
By a subsequent amendment of the plaint, the appellant alleged that at least two of the plots, 211A and 9/1A, had ceased to be " patelki inam " lands and were private property of the family.
Therefore, in any view of the matter, Government had no right to resume these two plots.
His claim with regard to these plots was alternatively placed on a somewhat different footing and we shall, in due course, consider that claim.
The suit was dismissed by the trial Judge, but on appeal by the present appellant the learned Additional District Judge of Amraoti decreed the suit.
There was a second appeal to the High Court of Nagpur which allowed the appeal, set aside the decree of the lower appellate court, and restored that of the trial Judge.
The High Court substantially held that (1) the lands in suit were granted by the then sovereign authority by way of remuneration or emoluments for 91 714 services to be rendered by the patel and the grant was recognised as a service inam by the British Government, and (2) it was open to the revenue authorities to resume and regrant the lands in accordance with the provisions of the Patels and Patwaris Law, 1900 in force in Berar and section 190 of the Berar Land Revenue Code, 1928.
Thereafter, the appellant applied for and obtained a certificate from the High Court, and the present appeal has been brought pursuant to that certificate.
To appreciate the points which have been urged before us on behalf of the appellant, it is necessary to state some more historical facts about the jagir village Nawabag and the " patelki inam " lands comprised therein.
The original sanads by which the jagir of Nawabag or the " patelki inam " was created have not been produced in this case.
There is no doubt, however,that both are of very ancient origin.
Berar was ceded by the Nizam of Hyderabad in 1853 and the Inam Rules for settlement of jagir and inam claims were made in 1859, Rule 1 whereof stated inter alia that land which was proved to have been held as inams, either under a fixed quit rent or rent free for a period of 40 years before the cession, was to be treated by the British Government as inam possessed under a valid title.
The promulgation of the Inam Rules was followed by an inams investigation.
exhibit P 1 is the copy of an inam entry dated August 31, 1866.
This document shows that the jagir of Nawabag was granted by the Kings of Delhi to one Shah Abdul Huq originally.
It was subsequently continued and confirmed by sanads granted by the Nizam of Hyderabad in 1757.
The village had a total area of about 1,846 bighas, out of which about 262 bighas were held by patels in lieu of their " huq " in the proportion of I bighas per netan (a measure of nine bighas).
The Inam Commissioner stated that the jagir had been held upward& of 100 years before the inam enquiry and should be continued (except for an area of 200 big has for which there was no satisfactory proof) in perpetuity subject to a quit rent of Rs. 87 8 0.
There is an earlier document, exhibit P 9A, of October 24,1771, 715 which shows that there was a dispute between the jagirdars and the patels about the latter 's right to get If bighas of " patelki inam " land per " netan ".
The jagirdars disputed the claim of the patels and ultimately the dispute was submitted to the Nazim Sahib of Ellichpur.
The document contains the following recital which shows that the " patelki inam " lands of village Nawabag were also very ancient grants: "The Nazim, after seeing from the previous records as to who was in enjoyment, granted the mukaddami inamof a bigha and a half from year to year as desired by the mukaddaman.
As per the old judicial usage, land is calculated at the rate of one and half bigha pernetan and measured out from the lands of Nawabag and the aforesaid mukaddaman are held to be occupants of the said cultivated landIt appears that out of 262 bighas of " patelki inam lands in the village, the Rokade family held about 11 plots,approximately of about 50 acres.
Sometime before 1904 some of the co sharer jagirdars of Nawabag ali enated the jagir lands to strangers.
This led to resumption proceedings by Government, and ultimately half of the jagir village was resumed by Government in or about 1904 05.
As a result of a detailed enquiry, survey numbers 1 to 21 and 40 to 45 of the " patelki inam " lands fell in the resumed portion and survey numbers 22 to 39 were included in the jagir portion.
As survey numbers 2/IA and 9/IA in possession of the Rokade family fell in the resumed portion, they were recorded as Khalsa and were assessed to revenue, while the remaining survey numbers viz. 29/1, 34/3, 36/2 and 37/2 continued to be in possession of the Rokade family free of assessment.
There was another resumption proceeding in or about 1917 when it was discovered that the jagirdars had alienated lands falling in the jagir portion also.
This time the lands resumed were not made Khalsa but were regran ted to the jagirdas.
As a result of this regrant the jagirdars thought that they were entitled to take possession of the "patelki inam" lands of the Rokade family also.
This led to some more revenue proceedings, and we come now to one of the important 716 documents in this case, viz., a letter dated August 28, 1922, by which sanction of Government was conveye to the exclusion from resumption of 25 acres and 15 gunthas of land in the khalsa portion of the village and to the exclusion from the land regranted to the jagirdar viz. of 24 acres 30 gunthas in the inam portion of Nawabag jagir village".
The order made by the Government further stated that the aforesaid lands would be recorded in the name of Amrit Shivaji Patel as his " patelki huq inam ".
Some of the other patel families made an attempt to get a release of the inam lands held by them, which had since been resumed; but this attempt proved unsuccessful and Government held that an enquiry showed that with the exception of Amritrao, no member of the old patelki families except Deo Rao was in possession of the old "patelki inam" lands and as Deo Rao did not belong to a branch in which the right to officiation resided, his claim could not be considered.
The order of Government in 1922, therefore, made it clear that the "patelki inam" lands of Amritrao formed one.
homogenous, separate service grant and were not dependent on the resumption of the jagir of Nawabag.
The proceedings of 1917 1922 were followed by the proceedings of 1935 1941 which culminated in a third resumption of the " patelki inam " lands and regrant to Vishwasrao and to Which we have earlier referred.
These proceedings bring the history of the lands in suit up to the time when the appellant brought his suit in 1942.
Now, apart from the alternative claim with regard to survey numbers 2/IA and 9/IA and the claim of title by adverse possession, which claims we shall consider later, the principal question which falls for decision in this appeal, is the true nature of these " patelki inam " lands; do they constitute a grant by way of remuneration or emoluments of the patel 's office by the use of the lands, as found by the High Court, or do they constitute a grant of land to the patelki family burdened with service and so long as the service is performed by any member of the family, the lands are joint family lands subject to partition 717 etc.
among the members of the family? Onbehalf of the appellant, it has been very stronglycontended before us that the finding of the High Court on this point is wrong.
On this part of the case learned counsel for the appellant has made a four fold submission; firstly, that the rights which the Rokade family had in these lands were rights of dealing with the property as owners, subject to a member of the family rendering patelki service; or in other words, the grant was a grant of land burdened with service; secondly, the grant was made by the jagirdar of village Nawabag and not by the sovereign authority and neither the Inam Rules, nor the provisions of the Patels and Patwaris Law, 1900 applied; thirdly, even if the aforesaid Rules and provisions applied, the appellant still retained his hereditary rights in the lands; and fourthly, the orders of Government dated August 28, 1922, did not confer any new right nor did they deprive anybody of any subsisting right in respect of the " patelki inam " lands and Government had no right to resume the lands and regrant them to respondent No. 1.
The second submission can be disposed of without much difficulty.
We have already stated that the sanads creating the jagir or the " patelki inam " have not been produced.
The earliest document we have is the kararnama of October 24, 1771.
That document shows, as we have stated earlier, that there was a dispute between the jagirdars and the patels; the patels were demanding I bighas per netan as their " huq and the jagirdars were saying that no such " huq " was mentioned in the sanads granted to the jagirdars.
The dispute was referred to the Nazim, who was the local representative of the then sovereign authority, and the decision of the Nazim was expressed by saying that the Nazim granted the inam of a bigha and a half from year to year for each netan; it was also stated that this was supported by old judicial usage.
In our view the kararnama shows two things: first, the grant of " patelki inam " of 1 1/2 bighas per netan was in its origin a grant by the sovereign authority which the Nazim confirmed in accordance with old 718 judicial usage; secondly, that the grant was from year to year in lieu of patelki services and was binding on the jagirdars who agreed to be bound by it.
The entry in the Inam Register, dated August 31, 1866 (exhibit P 1) is to the same effect; it shows that 262 bighas were excluded from the jagir " as allowed to patel in lieu of his huq to 1 1/2 bighas", in contradistinction to other petty inams allowed by the holders (jagirdars) themselves.
On behalf of the appellant our attention has been drawn to Rules 1 and 11 of the Inam Rules and to Rule XV; it has been submitted that if the " patelki inam " was separate from and independent of the jagir which was a class 111 inam, a separate title deed in the form of an inam certificate would have been granted in respect of the " patelki inam " as a class IV inam.
It may be, as the High Court points out, that the " patelki inams " were not separately recognised during the inam enquiry, and it was then assumed as if these were interests carved out of the lands granted.
to the jagirdars.
There is, how.
ever, clear evidence in the record that the " patelki inam" of this case was independent of the jagir.
Immediatly after the first resumption proceedings against the jagirdars in 1904 05, the position of the patels came under consideration of the revenue authorities.
In 1906 one Moti of Dongre family was appointed patel by the Sub divisional officer, Ellichpur.
In 1907 Amrit, son of Shivaji, was appointed patel in the Rokade family to officiate in rotation with Moti.
This appointment was made by the Deputy Commissioner.
In 1908 there was a dispute between the jagirdars and patels and the order of the Sub divisional officer who decided the dispute said: "The Jagirdar says that his family appointed Patels from the watan family, but this is not borne out by such papers as exist.
There is a petition dated 4 1 67 from the Jagirdar requesting the Revenue authority of the time to appoint a certain person as Patel.
At that period then the Revenue authorities and not the Jagirdar appointed the Patel.
The Patels are village servants only and are responsible only to the Government and not to the Jagirdar.
719 The Patel family has had watandari rights for certainly 150 years or so.
I am of opinion therefore that the watan seems independent of the Jagir.
" This dispute went up to Commissioner Sly (later Sir Frank Sly) and he held that the patelki is a watan independent of the jagir, and he approved the proposal for rotation between Moti and Amrit.
The " patelki inams " were treated on the same basis in the resumption proceedings of 1917 1922, and by the order dated August 28, 1922, Government excluded the " patelki inam " lands from the resumption proceedings relating to the jagir on the footing that they were separate from and independent of the jagir.
Mr. Walker, then Financial Commissioner, said in his order dated August 7, 1918, (exhibit ID 11): "Although the Patel holds no Inam Certificate, I agree with the Commissioner that the inam resumption procedure which was necessitated by the action of the jagirdar, ought not to upset the arrangement concerning the Patels, which was made at the suggestion of His Exalted Highness the Nizam 's Government many years ago.
To give effect to this view, it will be necessary to reopen the enquiry as regards the whole village both the khalsa part and the regranted inam part and to determine what fields in each represent the original grant of 262 bighas to the Patel in lieu of his huq.
When that area has been determined, the orders of resumption will have to be modified so as to exclude it.
" There is, therefore, overwhelming evidence in this case to show that the patelki inams were separate from and independent of the jagir of Nawabag, though the lands lay within the jagir village.
This brings us to the more important question what is the true character of the "patelki inam" lands of this case ? On this point also, we think that there is clear and unimpeachable evidence in support of the finding of the High Court.
We have already referred to the kararnama of 1771 and the inam entry of 1866.
If the grants were a grant of land to the patelki 720 families burdened with service, it is difficult to under stand how there could arise a dispute about remuneration between the jagirdars and patels and why the remuneration of 1 1/2 bighas per netan should be fixed from year to year.
In a revenue case of 1908 Amrit Patel had himself stated that the land was given to his ancestors in lieu, of patelki huq and it should not be assessed to land revenue.
Even in his plaint, the appellant had asserted that the " Patels were given certain lands out of the jagir village for their working as patels and for discharging other duties.
" There is another important document in this connection.
In the second resumption proceedings of 1917 Government had first decided to resume the jagir and regrant it to the then Jagirdar Amerulla Khan.
In the orders passed (exhibit ID 18) it was stated that the Jagirdars would be at liberty to allow the working patels to hold such lands as were considered reasonable by the Deputy Commissioner free of revenue and in lieu of mushahara (emoluments or wages).
It is important to note that everybody understood then that the " patelki inam " was in lieu of wages or emoluments for the office of patel.
These orders led to an enquiry, and Amritrao made a statement that he was holding survey numbers 26 27, 29, 34, 36 and 37 in lieu of patelki emoluments.
He said that he was even willing to hold 4 acres 17 gunthas of survey No. 27 in lieu of his emoluments.
It appears that the Sub divisional officer then recommended that Amrit Patel should be given only 4 acres 17 gunthas, as emoluments for his office.
Later, an application was made on behalf of Amrit, which was signed by his brother, the present appellant as his agent, in which occurred the following significant statements: "The learned S.D.O. has again lost sight of the fact that the family of the applicant has been doing the work of the Patel from a very long time, that in the early days of the Berar Administration when land had no value and did not fetch the income it is doing now, the applicant and his predecessors worked to what they would get from the land.
Cash had more value then than land and hence the Inamdars thought 721 it is advisable to commute money payment into land grant.
That the learned Sub Divisional Officer has lost sight of the fact that in the inam enquiry and the sanad granted to the Inamdar of the Nawabag Jahagir in 1866, the land in the possession of the applicant has been deducted from the area of the village and it isonly the rest of the area that is made over to theInamdar, vide, Co. 5 of the sanad viz. area of grant.
This shows that in 1866 the area reserved for the Patel was considered as a fair remuneration in kind to the Patel for his work." These statements show clearly enough what the appellant and his brother Amrit, understood to be the character of the " patelki inam " lands; they clearly said that the lands were given in lieu ofemoluments or remuneration.
This view ultimatelyprevailed and the earlier orders were modified on the recommendation of Commissioner Standan who saidthat the lands held by the patel as " patelki inam "should be excluded from resumption and the patel should be allowed to hold the lands free of any payment in lieu of cash remuneration for his office.
Inthe result were passed the orders dated August 28,1922, to which a reference has already been made.
These transactions and the statements made thereinare admissible, in the absence of the sanads creatingthe grant, to show how the parties themselves haveunderstood and dealt with the grant in contestedrevenue proceedings between the jagirdars and patels.
On behalf of the appellant it has been submittedthat there is evidence in the record to show that someof the patels had alienated " patelki inam " landsand the " patelki inam " lands of each patel remainedwith him, in spite of the fact that the office was heldin rotation ; these circumstances, it is contended,militate against the view that the grant was a meregrant of office with emoluments in the shape of Inamlands.
We are unable to accept this contention ascorrect.
The statement of the appellant himself in a 92 722 revenue case of 1937 38 (exhibit ID 15) shows that the lands alienated by the other patels were resumed and regranted to the jagirdar in the resumption proceedings of 1917 18.
After Amritrao had succeeded in getting his " patelki inam " lands excluded from resumption, the other patels also unsuccessfully attempted to get their lands released a circumstance to which we have earlier referred.
This shows that Government never accepted the position that the " patelki inam " lands could be freely alienated; on the contrary, the evidence in the record shows that Government had resumed such lands on more than one occasion.
As to the second circumstance, it is indeed true that the office was rotatory (this is provided for in section 3 of the Patels and Patwaris Law, 1900); but each patel retained his inam land even when it was not his turn to work as patel.
We do not however, consider this circumstance as establishing that the grant was other than what the High Court held it to be.
Section 3 of the Patels and Patwaris Law, 1900 says in clear terms that when there are two or more patels in a ' village and the duties can, in the opinion of the Deputy Commissioner, be efficiently performed by one patel, the Deputy Commissioner can direct that each patel shall hold office in turn by rotation for a term of not less than 10 years.
This does not mean that a patel ceases to be a patel when his turn is over; he continues to be a patel and enjoys his emoluments.
We propose now to examine the position Under the Inam Rules, 1859, the Berar Patels and Patwaris Law, 1900 and the Berar Land Revenue Code, 1928.
The argument on behalf of the appellant is that even under the Inam Rules, he is entitled to his share in the "patelki inam" lands, so long as a member of the family works as patel.
Learned counsel for the appellant has drawn our attention to Rules V and VI and has submitted that being a service inam, the it patelki inam " would come under the fourth class mentioned in Rule 11 and would be governed by Rule VI(2) which says: " Inams granted in lieu of lands or money stipends, commonly called huqs and ressums of offices, such as 723 Deshmukh, Deshpandia, and others the service of which has either been dispensed with or otherwise discontinued, shall be disposed of according to clause, of the Rule V, if they are hereditary in their terms, either by express declaration of Government or by recognized usage.
Nothing in this rule shall be deemed to apply to cash allowance known as ressums or lawazamas granted to Deshmukhs and Deshpandias in lieu of emoluments previously payable to them." That Rule refers to clause (2) of Rule V which reads: " If the present incumbent is a descendant of the original grantee, the inam will be continued to him hereditarily, subject to the following conditions : First Successions limited to direct lineal heirs and undivided brothers.
Second The inam escheats to Government on failure of such heirs.
Third Future alienation of the inam is prohibited.
Fourth The right of adoption to an inam is not recognized.
" The contention before us is that under Rule VI(2)read with Rule V(2), the appellant was entitled to his share in the " inam " as an undivided brother of Amritrao, Patel.
We do not think that this contention is correct.
For one thing, Rule VI(2) applies to inams, granted in lieu of lands or money stipends, the service of which has either been dispensed with or otherwise discontinued.
That is not the case here.
Secondly clause (8) of Rule VI makes it clear that when the inam attached to the office is wholly or partially in the enjoyment of members of the family who do not perform service, such portion of the alienated inam as may be considered necessary for the efficient performance of the duties will be attached to the office holders, and Rule XIV(2) says that service grants are not liable to be alienated by purchase or otherwise.
Rule VIII explains the term 'inam ' and Rule 11 also has a bearing on the question before us.
It says, so far as it is relevant for our purpose: " The settlement will be made with the head member of the family holding the office or enjoying the 724 inam and who will be held alone responsible to Government, and in no case will the Government interfere to compel the actual incumbent of an office to make over any portion of his regulated service grant to other branches of the family, as service grants cannot be divided according to the orders of Government. " Rule XXI(2) says interalia that in respect to service grants, the decisions of the Commissioner and the Resident respecting lands held free by the village officers as remuneration for service, shall be considered final.
From these Rules it is manifestly clear to us that there is nothing in them on the basis of which the appellant can claim as of right that he has a share in the "patelki inam " lands as a member of the patel 's family, irrespective of whether he performs the service or not.
The position under the Patels and Patwaris Law, 1900, appears to be clearer still.
Section 9 of the said Law states that the emoluments appertaining to the office of the patel or patwari shall be enjoyed solely by the person for the time being holding the office; even a substitute shall receive the whole of the emoluments appertaining to the office, unless the Deputy Commissioner otherwise directs, and if there are two or more patels in a village, the Deputy Commissioner shall determine the proportions in which they shall share in the emoluments of office.
Sections 10 and 1 1 say that the emoluments appertaining to the office of patel shall not be liable to attachment or sale, and every assignment thereof shall be void.
Under section 20 the jurisdiction of the Civil Court is barred with respect to any claim by any person to any emolument appertaining to the office of patel.
These provisions clearly indicate that the " patelki inam " lands are subject to orders passed by the revenue authorities in respect of the matters mentioned therein, and no right is given to a member of the family of the patel to claim a share in the emoluments.
The power to resume lands granted on condition that the holder shall render certain services is 725 specifically referred to in s.190 of the Berar Land Revenue Code.
We quote below the material portion of the section : " Section 190(1) If alienated land has been granted on condition that the holder shall render certain services or incur expenditure for the benefit of the community or any section thereof, and the holder fails to render such services or to incur such expenditure to the satisfaction of the Deputy Commissioner, or, if the holder transfers the land in such a manner that, in ther opinion of the Deputy Commissioner, the purpose of the grant is likely to be defeated, the Deputy Commissioner may declare such land to be forfeited.
(2) Land forfeited under this section shall vest in the Crown for the purposes of the Province free of all encumbrances and shall be regranted on the original conditions made under this Law.
" Section 192 says inter alia that no civil court shall entertain any suit to obtain a decision on any matter which the revenue authorities are empowered under the Law to determine, and among the matters mentioned in the section, is any claim against the State relating to any property or emoluments appertaining to the office of any hereditary officer or servant.
These provisions also negative the claim of the appellant.
We proceed now to consider certain decisions on which learned counsel for the appellant has sought to place reliance.
We may notice here one comment made by him.
He has submitted that the High Court has relied on the decision of the Privy Council in Venkata Jagannadha vs Veerabadrayya (1) where the question was whether the karnam service lands enfranchised to a karnam, a village accountant in Madras State, were subject to any claim of partition by other members of the family, and his comment is that the " patelki inam " lands in Berar stand on a footing different from karnam service lands in Madras and there are decisions in which it has been held that co sharers have a right to a share in service grants in Berar.
The first decision to which oar attention has (1) (1921) L.R. 48 I.A. 244.
726 been drawn is Krishnarao vs Nilkantha and Others (2).
That was a case of a jagir, and it was held that it came under the third class, and nothing regarding ordinary rule is that if persons are entitled beneficially to shares in an estate, they may have a partition.
It was further held that property consisting of an ordinary inam village was liable to partition at the suit of a co sharer except when it was held on a saranjam or other impartible tenure or where the terms of the grant impose a condition upon its enjoyment.
We do not think that this decision establishes what the appellant is seeking to establish in this case, that is, that be has a share in the emoluments of the patel 's office.
The next decision is that of the Privy Council in Mir Subhan Ali vs Imami Begum (3) ; all that was laid down there was that the devolution and incidents of an inam estate in Berar were regulated by the Inam Rules, 1859, but only in matters not mentioned in the sanad or certificate or other document evidencing the special terms of the grant in the particular case.
The fundamental question at issue there was one of construction, namely, whether the beneficial interest in the Inam granted to a common ancestor of the parties and continued by the British Government in 1866 passed under the terms of the grant then made to all heirs of the grantees according to Shia Mahomedan Law or whether the interest devolved on the male descendants only.
It was not a service grant, and no question of a share in the emoluments of the patel 's office arose there.
In Lakhamgouda Basavaprabhu Sardesai vs Baswantrao and Others (4) the Privy Council pointed out the distinction between the grant of an office to be remunerated by the use of land and the grant of land burdened with service; it said that in the former case, the land would be prima facie resumable but not so in the latter case, unless the terms of the grant or the circumstances in which it was made established that it was resumable.
(1) A.I.R. (1922) Nag.
(2) (3) A.I.R. (1931) P.C. 157.
727 In the case of Jaiwantrao and Another vs Sahebrao (1), the inam certificate issued to the head of the senior branch of a family of Deshmukh watandars stated that the village was granted "for personal maintenance to the claimant, his descendants and co sharers"; Accordingly, it was held that a co sharer was entitled to possession of his share appearing from the inam statement.
In Raje Shrinivasrao vs Raje Vinayakrao(2) there was grant of two villages to the great grandfather of the appellant and the respondent, who were brothers, and " his lineal heirs " or " his successors ".
The question was whether primogeniture was to be the order of descent or the estate was impartible.
It was held that the ordinary principles of Hindu Law were applicable and the earlier decision in Mir Subhan Ali vs Imami Begam (3) was referred to.
Here again the grant was not a service grant, and no question of a claim of a share in the emoluments of office fell even for consideration, not to speak of decision.
We consider it unnecessary to multiply decisions.
It is enough to state that no decision has been brought to our notice in which it has been held that a member of the patel 's family is entitled as of right to a share in the emoluments of the patel 's office and that Government has no right to resume " patelki inam lands and regrant the same to the officiator.
It remains now to consider the special claim with regard to survey numbers 2/IA and 9/lA.
The case of the appellant was that these two plots ceased to be inam lands, when they fell in the resumed portion of the Jagir; they were sold by Bannobi Begum and Mahmudi Begum, the jagirdars, and the appellant and his brother Amrit brought suits and obtained decrees in respect of these two plots and in execution of the decrees they obtained possession.
The learned trial Judge rightly pointed out that the decrees aforesaid related to property other than plots 2/IA and 9/lA.
Moreover, it is not disputed that the entire " patelki inam " lands in possession of Amritrao patel, including the plots which were made khalsa in 1904 05, were (1) (2) I.L.R. (3) 728 excluded from resumption and Amrit 's "patelki inam" lands were treated as a homogenous unit by the orders passed on August 28, 1922.
The two plots, 21 1 A and 9/1A,therefore, stand on the same footing as other "patelki inam" lands of Amritrao.
The claim of title by adverse possession can be disposed of in a few words.
Once it is held that the lands were given by way of emoluments for the patel 's office, no question of title by adverse possession arises against Government, even though the lands were shown as excluded from the jagir of Nawabag in 1866.
Amrit worked as patel till he died in 1920, and even though the appellant got possession by partition in 1923, it was open to Government to resume the lands in 1941 and regrant the same to respondent No. 1.
The appellant can only succeed if he establishes that he had a right to a share in the "patelki inam " lands and Government had no right to resume the same.
This the appellant has failed to establish.
For the reasons given, we hold that the appeal is without merit and must be dismissed with costs.
Appeal dismissed.
| The confession of an accused person against a co accused is not evidence in the ordinary sense of the term.
It does not come within the meaning of evidence contained in sec.
3 of the Indian Evidence Act inasmuch as it is not required to be given on oath, nor in the presence of the accused and cannot be tested by cross examination.
It is a much weaker type of evidence than the evidence of an approver which is not subject to any of these infirmities.
Such a confession can only be used to tend assurance to other evidence against a co accused.
The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession alto gether from consideration and see whether, if it is be lieved, a conviction could safely be based on it.
If it is capable of belief independently of the confession, then it is not necessary to call the confession in aid.
But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction.
In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify him self in believing what without the aid of the confession he would not be prepared to accept.
Bhuboni Sahu vs The King (76 I.A. 147) relied upon.
Emperor vs Lalit Mohan Chuckerbutty at 588) and In re Periyaswami Moopan (I.L.R. referred to.
A conviction can be based on the uncorroborated testimo ny of an accomplice provided the judge has the rule of caution, which experience dictates, in mind.
Rameshwar vs State of Rajasthan ; referred to.
The rule of caution is that save in exceptional circum stances one accomplice cannot be used to corroborate anoth er, nor can he be used to corroborate a person who though not an accomplice is no more reliable than one.
It is not proper or desirable for the prosecution to examine as a witness the magistrate who recorded the confes sion, 527
|
Appeal No. 81 of 1990.
From the Judgment and Order dated 7.3.1989 of the Rajas than High Court in S.B. Civil (Misc.) Second Appeal No. 2 of 1976.
Guman Mal Lodha, Sushil K. Jain, B.P. Aggarwal and Sudhanshu Atreya for the Appellant.
C.M. Lodha and Surya Kant for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
1.
Heard learned counsel for both sides and special leave is granted.
This appeal by the auction purchaser is against the judgment of the High Court of Rajasthan, Jaipur Bench, dated March 7, 1989 made in S.B. Civil (Misc.) Second Appeal No. 2/76.
The facts, though many, relevant to dispose of the appeal are stated as under: 3.
S/Shri Gokulchand and Rekhchand, Respondents Nos.
5 and 6 herein, defendants 2 and 3 in O.S. No. 37/59 on the file of the Court of the Civil Judge, Jhalawar, obtained in another suit, an ex parte 27 money decree to recover Rs.5,557.10 against Bal Mukund and brought to sale the joint family house which is the disputed property in the present litigation.
Mohanlal, his minor son and his widow filed objections under Order 21 Rule 58 CPC which were rejected.
The sale was confirmed on October 24, 1958, and sale certificate was issued on November 28, 1958.
The respondents filed O.S. No. 37/59 under Order 21 Rule 63 CPC to set aside the sale.
The Trial Court by its judgment dated December 5, 1961 dismissed the suit, but on appeal, the District Judge at Kotah allowed the appeal and decreed the suit for resti tution of the plaint schedule property since possession had in the meantime, been taken.
Second Appeal No. 91/65 filed in the High Court was abated as a whole since Mohanlal died on May 1, 1968 and his legal representatives being Respond ents Nos.
2 to 4 were not brought on record by substitution.
When execution was levied for restitution, though the appel lant raised several objections to its executability but challenge was confined to two grounds, namely, the decree passed by the District Judge is a nullity as he lacked pecuniary jurisdiction to entertain the appeal against the decree in the suit admittedly valued at Rs.15,000 under Section 21(1)(a) of the Rajasthan Civil Courts Ordinance 1950, and it was entertainable by the High Court, and sec ondly, the decree being a declaratory one was incapable of execution, notwithstanding the direction for restitution of the plaint scheduled property.
The Executing Court dismissed the objection petition, but on appeal the order of the Executing Court was reversed.
On further appeal the High Court allowed the same, set aside the appellate order and directed the appellate court to transfer it to the appropri ate Civil Court for execution as per law.
As against it the present appeal has been filed.
The contention that the decree passed by the District Judge, Kotah, on appeal is a nullity is devoid of substance.
It is true that under Section 21(1)(a) of the Rajasthan Civil Courts Ordinance 1950, the District Court is empowered to entertain an appeal against the decree of a Trial Court of the value only upto Rs.10,000 and by operation of sub section (b) of section 21(1) the appeal would lie only to the High Court as the value of the suit was admittedly Rs.15,000.
But this is a suit laid under Order 21 Rule 63 CPC to set aside the sale by declaring the decree of Rs.5,557.10 to be invalid and does not bind them.
In Radha Kunwar vs Reoti Singh, AIR 19 and Phul Kumar vs Ghanshyam Mishra, 35 IA 22 PC it was held that the value of the amount of decree is the value for the purpose of the suit under Order 21 Rule 63 CPC.
Therefore, merely because the valuation of the pro 28 perty sold in execution had been put at Rs.15,000, the valuation of the suit under Order 21 Rule 63 CPC cannot be treated to be that valuation.
Accordingly, we hold that Section 21(1)(a) of the Ordinance is attracted.
Therefore, the decree of the Appellate Court in C.A. No. 157/61 on the file of the Court of the District Judge, Kotah, is not a nullity.
The only other question is whether the plaintiff is entitled to restitution of the property.
Once the decree which was the subject matter of execution was declared to be not binding on the plaintiffs, Mohanlal and his mother Bhuli Bai, the execution sale would not bind them and as a result they became entitled to restitution.
The decree does admit tedly contain a direction for restitution.
Therefore, it is not a mere declaratory decree but coupled with a decree for restitution of the plaint scheduled house.
Accordingly, the decree is executable.
To a question put by the Court whether in view of the long pendency of the proceedings it could not be equitable that the appellant should pay the proper value of the house or deliver possession thereof, the learned counsel for the appellant fairly stated that whatever amount be fixed by this Court, the appellant is prepared to pay the same.
The learned counsel for the respondents on the other hand rely ing upon the statement made in the objections dated April 28, 1973, filed by the appellant maintained that he had then claimed only a sum of Rs.11,900 in all, and the appellant would be entitled only for that amount.
On the other hand, the appellant having been in possession and enjoyment of the property, the respondents are entitled to the mesene prof its.
On the facts and in the circumstances and in considera tion of the fact that the litigation is pending for a long period, we are of the view that justice and equity would be met if we direct the District Court, Kotah, to assess the prevailing market value of the plaint scheduled house and the site as on date and direct the appellant to pay the value thereof within a time to be fixed by him.
If the respondents have not drawn the balance of the sale amount in the original suit filed by S/Shri Gokulchand and Rekhchand and after full satisfaction was recorded, the appellant is entitled to withdraw the said balance amount.
In case the amount was already withdrawn, the appellant is entitled to deduct the same from the amount fixed by the District Court.
In case the appellant fails to pay the value of the property assessed by the District Court as directed above, there shall be a direction for restitution of the plaint scheduled property as per the decree of the Appellate Court in C.A. No. 157/61.
The appeal is accordingly allowed, but, in the circumstances, without costs.
P.S. S Appeal allowed.
| Respondent No. 1 obtained a money decree against the original appellant, who has been substituted by legal heirs, on the basis of a promissory note.
The appellant appealed to the High Court but could not get the decree stayed because he was unable to furnish security for the decretal amount.
The decree was put into execution notwithstanding the pend ency of the appeal, and two items of appellant 's properties were purchased by respondent No. 2 at the court sale.
Later, the High Court allowed the appellant 's appeal on merits and set aside the decree.
Thereupon, the appellant moved the executing court for setting aside the court sale inter alia on the ground that (1) the sale was vitiated by material irregularities and properties were deliberately sold for under value; (2) the sale was collusive between decree holder and the auction purchaser; the latter, being the sambandhi of the former, was just a name lender; and (3) since the decree had been reversed, the sale should be nullified and restitution should be ordered.
The executing court rejected these con tentions and held that subsequent reversal of the decree could not be depended upon since the sale had been confirmed in favour of the auction purchaser who was a stranger to the litigation.
The learned Single Judge of the High Court, however, allowed the appellant 's appeal and held inter alia that (a) the sale was vitiated by material irregularities resulting in fetching a low price; and (b) the decree holder and auction purchaser were close relatives and the sale seemed to be collusive.
But on appeal, the Division Bench reversed the decision of the learned Single Judge.
Allowing the appeal, this Court, HELD: (1) A distinction is maintained between the decree holder who purchases the property in execution of his own decree which is 79 afterwards modified or reversed, and an auction purchaser who is not party to the decree.
[84E] (2) Where the purchaser is a decree holder, he is bound to restore the property to the judgment debtor by way of restitution but not a stranger auction purchaser.
The latter remains unaffected and does not lose title to the property by subsequent reversal or modification of the decree, and could retain the property since he is a bona fide purchaser.
This principle is also based on the premise that he is not bound to enquire into correctness of the judgment or decree sought to be executed.
He is thus distinguished from an eonomine party to the litigation.
[84E F] Janak Raj vs Gurdial Singh, ; and Sardar Govindrao Mahadik vs Devi Sahai, ; , referred to.
(3) The true question in each case is whether the stranger auction purchaser had knowledge of the pending litigation about the decree under execution.
If it is shown by evidence that he was aware of the pending appeal against the decree when he purchased the property, it would be inappropriate to term him as a bona fide purchaser.
Indeed, 'he is evidently a speculative purchaser and in that respect he is in no better position than the decree holder purchas er.
[85B C] Chhota Nagpur Banking Association vs C.T.M. Smith, [1943] Patna 325 and Jamnomal Gurdinomal vs Gopaldas, AIR 1924 Sind 101, referred to.
R. Raghavachari vs M.A. Pekkiri Mahomed Rowther, AIR 1917 Mad 250, overruled.
(4) Similarly, the auction purchaser who was a name lender to the decree holder or who has colluded with the decree holder to purchase the property could not also be protected to retain the property if the decree is subse quently reversed.
[86B] (5) The Code of Civil Procedure is a body of procedural law designed to facilitate justice and it should not be treated as an enactment providing for punishment and penal ties.
The laws of procedure should be so construed as to render justice wherever reasonably possible.
[87A B] Rodger vs The Comptoir De Paris, [1869 71] LR 3 PC.
465 at 475 80 and A.R. Antulay vs R.S. Nayak, ; , referred to.
(6) The evidence on record is sufficient to hold that the auction purchaser was not a bona fide purchaser.
The auction sale in his favour must, therefore, fall for resti tution.
The Court cannot lend assistance for him to retain the property of the judgment debtor who has since succeeded in getting rid of the unjust decree.
[87D E]
|
N: Criminal Appeal No. 406 of 1976.
Appeal by Special Leave from the Judgment and Order dated 1 9 1975 of the Madras High Court in Criminal Appeal No. 823/74.
493 A. N. Mulla, A. T. M. Sampath and P. N. Ramalingam for the Appellant.
A. V. Rangam for the Respondent.
The Judgment of the Court was delivered by KAILASAM, J.
This appeal is by Special Leave by accused 1 and 2 in S.C. 26 of 1974 on the file of Sessions Judge, South Arcot Division, against their conviction and sentence imposed by the High Court of Judicature at Madras in Criminal Appeal No. 823 of 1974 dated 1st September, 1975.
The two Appellants and Muthuthamizaharasan were accused Noc.
1 3 in the Sessions Court.
The first appellant was found guilty under section 302 I.P.C. and sentenced to imprisonment for life.
The second appellant and the third accused were found guilty of an offence under section 302 read with section 149 I.P.C. and sentenced to imprisonment for life.
On appeal by the two appellants and the third accused, the third accused was acquitted by the High Court and the appellants Nos. 1 and 2 are before us.
The deceased Rasayal is the sister of appellants and the third accused.
The first accused Dhanabal is the eldest and the second appellant and the third accused are his younger brothers.
The second appellant married Laxmi, the daughter of Rasayal.
Rasayal owned about 5 acres of land in Keelakkarai village.
She executed a general power of attorney Exh.
P. 15 on 31st August, 1970 in favour of the second appellant.
Rasayal, after she lost her husband, started leading an immoral life which was disliked by her brothers.
As a result, Rasayal began to cultivate her own land inspite of the power of attorney executed in favour of the second appellant.
There was misunderstanding between the parties and Rasayal had complained to the Police stating that her brothers had threatened to do away with her.
On the date of the occurrence at about 1.30 p.m. on 5th December, 1973, when Rasayal and her farm servant Parmasivam, P.W. 4 were working in her field removing weeds, the two appellants and the third accused converged to the place where Rasayal was working.
The first appellant was armed with Veecharuval, the second appellant was armed with a spade and the third was unarmed.
On seeing them, Rasayal ran towards the channel running adjacent to her fields.
The third accused instigated the first appellant to cut her saying that she was leading an immoral life and that she should not be left.
Thereupon, the first appellant cut Rasayal on the right side of her neck with the Veecharuval and she fell down in the channel, raising an alarm.
494 The second appellant stated that she should not be left at that and that her head should be severed from her body, she being an immoral woman.
Thereupon, the first appellant caught hold of her hair by the left hand and cut her neck with the Veecharuval, severing the head from the trunk.
The occurrence was witnessed by Ramalingam P.W. 1 and Ramakrishnan, P. W. 2 who were returning at that time after spraying insecticides in the fields of P.W. 1 Chelladurai, P.W. 3 who was coming to the field of Rasayal with food for P. W. 4 also saw the occurrence.
Nagappan P.W. 5 who was going towards the scene of occurrence to meet Ramakrishnan P.W. 2 for getting arrears of wages also saw the occurrence.
Soon after the occurrence, the first appellant left taking away the Veecharuval with him and second appellant leaving the spade near the feet of the deceased Rasayal.
P. W. 4 gave a report Ext.
P. 7 to the Sub Inspector of Police, Kamaratchi at 3 p.m. on the same day.
The Sub Inspector recorded the narration of P. W. 4, read it over to him and obtained his signatures.
After registering a case under section 302 I.P.C. he took up the investigation and proceeded to the scene of the occurrence and held the inquest.
The Doctor who conducted the post mortem was of the view that the deceased appeared to have died of severance of the head from the trunk.
During investigation, the Police had section 164 Cr.
P. C. Statements recorded from P.Ws. 1 to 5 before the Sub Magistrate, Chidambaram on 24 12 1973.
During the committal proceedings, P.W. 4 turned hostile but P.Ws. 1, 2, 3 and 5 gave evidence supporting the prosecution.
After committal, P.W. 1, 2, 3 and 5 resiled from the evidence they gave in the Committal Court.
They were treated as hostile by the Prosecution and their evidence before the Committing Court was admitted in evidence under section 288 of the Code of Criminal Procedure.
The High Court relying on the evidence of P.Ws. 1, 2, 3 and 5 which was marked under section 288 of the Criminal Procedure Code, found that it was satisfactorily established that the first appellant cut the deceased on the right side of the neck, that the second accused instigated the first accused to cut her saying that she was an immoral woman and the first appellant caught hold of her hair by the left hand and cut her neck with the Veechruval, severing the head from the trunk and left the place alongwith other accused.
The High Court acquitted the third accused on the ground that in the F.I.R. it was not mentioned that the third accused instigated the first accused to cut the neck of the deceased.
He was given the benefit of doubt and was acquitted.
Mr. Mulla, learned counsel for the appellants, submitted that the conviction of the two appellants based entirely on the retracted evi 495 dence of P.W. 1, 2, 3 and 5 marked in the Sessions Court under section 288 cannot be sustained.
Secondly, the Learned Counsel submitted that the High Court was in error in taking into account the statements recorded from the witnesses under section 164 of the Code of Criminal Procedure in coming to the conclusion that the evidence given in the Committal Court could be relied upon.
Lastly, the Learned Counsel submitted that in any event the case of the second appellant is similar to that of the third accused and that the second appellant ought to have been acquitted.
We have been taken through the relevant evidence of the witnesses, their statements under section 164 of the Code of Criminal Procedure and the evidence given by them in the Committal Court which was transposed to the record of the Sessions Court under section 288 of the Code of Criminal Procedure.
Before considering the questions of law raised by the Learned Counsel, we find that the plea of the learned counsel on behalf of the second appellant has to be accepted.
The case for the prosecution is that the two appellants and the third accused went to the scene of occurrence the first appellant armed with Veecharuval, the second appellant with a spade and the third accused unarmed converged on Rasayal and the first accused gave a cut which resulted in severance of her head.
We feel that when the three brothers went to the scene determined to do away with Rasayal, any instigation was most unlikely.
The first accused who actually caused injury is the eldest brother.
It is difficult for us to accept that before he actually caused the injury, he needed the instigation of the second appellant.
In the deposition of Ramalingam P. W. 1, which was marked under section 288, Code of Criminal Procedure, Ext.
P. 2, he stated that first accused came with Aruval, A 2 with a spade and alongwith A 3 went towards Rasayal Ammal.
A 1 with the Veecharuval cut Rasayal Ammal on her right neck.
The other persons were standing there.
Thus the instigation attributed by the prosecution to the second appellant is not found in the evidence of Ramalingam.
Taking into account the facts and the probabilities of the case, we feel it is most unlikely that the second appellant instigated the first accused as a result of which the first accused caused the fatal injury.
The second appellant is entitled to the benefit of doubt.
His appeal is allowed and his conviction and sentence are set aside.
He is directed to be set at liberty.
We will now take up the first contention of the learned counsel that the conviction based on statements marked under s 288 of 496 the Code of Criminal Procedure is not sustainable for consideration.
section 288 of the Code of Criminal Procedure runs as follows: "The evidence of a witness duly recorded in the presence of the accused under Chapter XVIII may, in the discretion of the Presiding Judge, if such witness is produced and examined be treated as evidence in the case for all purposes subject to the provisions of the ".
The plea of the Learned Counsel is that the evidence marked under section 288 is inadmissible as it was only read in full to the witnesses and had not been put to them passage by passage as required by section 145 of the Evidence Act.
The procedure that was adopted in the Sessions Court was that when the witnesses stated giving a version hostile to the prosecution, he was asked whether he was examined in the Committal Court.
The evidence marked as given by him in the Committal Court was read over to the witnesses by the Public Prosecutor.
The witness admitted that he had given evidence as found in the Exh.
and that he had signed it.
The evidence given in the Committal Court was transposed to the record of the Sessions Court under section 288 of the Code of Criminal Procedure.
The procedure adopted was challenged on the ground that section 288 contemplates that the evidence given during Committal proceedings can be treated as evidence in the case subject to the provisions of the , and, therefore, each and every passage on which the prosecution relies on should have been put to the witnesses before the passages can be marked and treated as substantive evidence.
section 145 of the Evidence Act, runs as follows: "A witness may be cross examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved be called to those parts of it which are to be used for the purposes of contradicting him.
" Reliance was placed on the decision of this Court in Tara Singh vs State of Punjab, wherein it was held that the evidence in the Committal Court cannot be used in the Sessions Court unless the witness is confronted with his previous evidence as required under 497 section 145 of the Evidence Act.
The Court observed that if the prosecution wishes to use the previous testimony as substantive evidence then it must confront the witness with those parts of it which were to be used for the purpose of contradicting him and then only the matter can be brought in as substantive evidence under section 288.
On the facts of the case the Court found that all that happened was that the witnesses were asked something about their previous statements and they replied that they were made under coercion.
It does not appear that the entire previous statements of the witnesses were put to them and they were asked whether they, in fact, made the statements.
In Bhagwan Singh vs State of Punjab,, this Court distinguished the case of Tara Singh vs State of Punjab (supra) and observed that resort to section 145 of the Evidence Act is necessary only if a witness denies that he made the former statement.
When the witness admits the former statement, all that is necessary is to look to the former statement on which no further proof is necessary because of the admission that it was made.
Hidayatullah, C.J. in State of Rajasthan vs Kartar Singh, while dealing with the procedure to be adopted in treating the statement in the committal court as substantive evidence observed that the witnesses should be confronted with their statements in the Committal Court which are to be read over to them in extenso.
The Chief Justice pointed out that the witnesses in the case admitted that their statements were truly recorded in the Committal Court but denied that they were true statement because they were made to depose that way by the Police.
It would have been useless to point out the discrepancies between the two statements because the explanation would have been the same and in the circumstances, the requirements of section 145 of the were fully complied with.
It is thus clear from the authorities referred to above that the requirements of section 288 would be fully complied with if statements of the witnesses are read in extenso to them and they admit that they have made those statements in the committal Court.
The required procedure has been followed in this case and the attack made by the learned counsel has to fail.
The second legal contention raised by the Learned Counsel was that the High Court was in error in taking into account the statements recorded from the witnesses under section 164 of the Code of 498 Criminal Procedure in coming to the conclusion that the evidence given by them in the Committal Court could be relied upon.
The High Court stated "we are satisfied having regard to 164 statements of P.W. 1 to 3 and 5 that the statements given by those witnesses before the Committing Court are true and could be relied on" and proceeded to observe "that as there are more statements admitted in evidence under section 288 of the Code of Criminal Procedure than one, the evidence of one witness before the Committing Court is corroborated by that given by others".
Mr. Mulla, Learned Counsel, submitted that a statement recorded under section 164 of the Code of Criminal Procedure indicates that the Police thought that the witnesses could not be relied on as he was likely to change and, therefore, resorted to securing a statement under section 164 of the Code of Criminal Procedure.
The statement thus recorded, cannot be used to corroborate a statement made by witness in the Committal Court.
In support of this contention the learned counsel relied on certain observations of this Court in Ram Chandra and Ors.
vs State of U.P.
In that case, in a statement recorded from the witness under section 164 of the Code of Criminal Procedure, the Magistrate appended a certificate in the following terms: "Certified that the statement has been made voluntarily.
The deponent was warned that he is making the statement before the 1st Class Magistrate and can be used against him.
Recorded in my presence.
There is no Police here.
The witness did not go out until all the witnesses had given the statement.
" The Court observed that the endorsement made is not proper but declined to infer from the endorsement that any threat was given to those witnesses or that it necessarily makes the evidence given by the witness in Court suspect or less believable.
The view of the Patna High Court in Emperor vs Manu Chik, where the observations made by the Calcutta High Court in Queen Empress vs Jadub Das, that statements of the witnesses obtained under this Section always raises a suspicion that it has not been voluntarily made was referred to, was relied on by the Learned Counsel.
This Court did not agree with the view expressed in the Patna case but agreed with the view of Subba Rao, J. (as he then was) in Gopisetti Chinna 499 Venkata Subbiah, where he preferred the view expressed by Nagpur High Court in Parmanand vs Emperor, It was observed that the mere fact that the witnesses statement was previously recorded under section 164 will not be sufficient to discard it.
It was observed that the court ought to receive it with caution and if there are other circumstances on record which lend support to the truth of the evidence of such witnesses, it can be acted upon.
During the investigation the Police Officer, sometimes feels it expedient to have the statement of a witness recorded under section 164, Code of Criminal Procedure.
This happens when the witnesses to a crime are closely connected with the accused or where the accused are very influential which may, result in the witnesses being gained over.
The 164 statement that is recorded has the endorsement of the Magistrate that the statement had been made by the witness.
The mere fact that the Police had reasons to suspect that the witness might be gained over and that it was expedient to have their statements recorded by the Magistrate, would not make the statements of the witnesses thus recorded, tainted.
If the witness sticks to the statement given by him to the Magistrate under section 164, Code of Criminal Procedure, no problem arises.
If the witness resiles from the statement given by him under section 164 in the Committal Court, the witness can be cross examined on his earlier statement.
But if he sticks to the statement given by him under section 164 before committal enquiry and resiles from it in the Sessions Court, the procedure prescribed under section 288, Code of Criminal Procedure, will have to be observed.
It is for the Court to consider taking into account all the circumstances including the fact that the witness had resiled in coming to the conclusion as to whether the witness should be believed or not.
The fact that the Police had section 164 statement recorded by the Magistrate, would not by itself make his evidence tainted.
section 157 of the Evidence Act makes it clear that the statement recorded under section 164 of the Code of Criminal Procedure can be relied on for corroborating the statements made by the witnesses in the Committal Court.
This Court has expressed its view that though the statements made under section 164 of the Code of Criminal Procedure, is not evidence, it is corroborative of what has been stated earlier in the Committal Court vide The High Court was right in relying on the statement of the witnesses under section 164 as corroborating their subsequent evidence before the Committal Court.
Equally unsustainable is the plea of the Learned 500 Counsel that a statement recorded under section 288 of the Code of Criminal Procedure of one witness cannot corroborate the statement of another witness under section 288.
The statements are treated as substantive evidence in law and we do not see any flaw in treating the statement of one witness as corroborative of the other.
The result in the question of law raised by the Learned Counsel fail.
The appeal of the first appellant is rejected and his conviction and sentence confirmed.
The appeal of the second appellant is allowed and his conviction and sentence set aside.
He is directed to be set at liberty forthwith.
V.D.K. 1st Appellant 's Appeal dismissed.
2nd Appellant 's Appeal allowed.
| The appellants and the third accused were brothers of the deceased Rasayal.
They were charged for the offence of committing the offence of murder and were found guilty and sentenced under section 302 read with section 149 I.P.C. to imprisonment for life by the Sessions Court.
In appeal the High Court, acquitted the third accused but confirmed the conviction and sentence of the appellants.
In appeal by special leave, three contentions were raised namely (i) the conviction of the two appellants based entirely on the retracted evidence of PWs.
1,2, 3 and 5 marked in the Sessions Court was wrong (ii) the evidence marked under section 288 was inadmissible as it was only read in full to the witnesses and had not been put to them passage by passage as required in section 145 of the Evidence Act and (iii) the case of the second appellant was similar to that of the third accused and ought to have been acquitted giving him the benefit of doubt.
Accepting the appeal of the 2nd appellant and dismissing the appeal of the first, the Court ^ HELD: 1.
Talking into account the facts and the probabilities of the case it is clear that it was the first appellant who caused the fatal injury and needed no instigation from the second appellant.
There was no evidence as to any overt act, except the presence of the second appellant along with the third accused.
It was most unlikely that the second appellant instigated the first accused as a result of which the first accused caused the fatal injury.
The second appellant is entitled to the benefit of doubt.
[495E G] 2.
The requirements of section 288 of the Criminal Procedure Code would be fully complied with if statements of the witnesses are read in extenso to them 492 and they admit that they have made those statements in the Committal Court.
The required procedure has been followed in this Case.
[497F G] Tara Singh vs State of Punjab, ; , Bhagwan Singh vs State of Punjab, ; State of Rajasthan vs Kartar Singh, ; referred to.
During the investigation the police officer, sometimes feels it expedient to have the statement of a witness recorded under section 164 Code of Criminal Procedure.
This happens when the witnesses to the crime are closely connected with the accused or where the accused are very influential which may result in the witnesses being gained over.
The 164 statement that is recorded has the endorsement of the Magistrate that the statement had been made by the witness.
[499 A C] 4.
The mere fact that the police had reasons to suspect that the witness might be gained over and that it was expedient to have their statements recorded by the Magistrate, would not make the statements of the witnesses thus recorded tainted.
If the witness sticks to the statement given by him to the Magistrate under section 164 Code of Criminal Procedure, no problem arises.
If the witness resiles from the statement given by him under section 164 in the committal court, the witness can be cross examined on his earlier statement.
But if he sticks to the statement given by him under section 164 before committal enquiry and resiles from it in the Sessions Court, the procedure prescribed under section 288, Code of Criminal Procedure will have to be observed.
It is for the Court to consider taking into account all the circumstances including the fact that the witness had resiled, in coming to the conclusion as to whether the witness should be believed or not.
The fact that the Police had section 164 statement recorded by the Magistrate would not by itself make his evidence tainted.
[499 C F] Ram Chandra & Ors.
vs State of U.P. ; explained and relied on.
Section 157 of the Evidence Act makes it clear that the statement recorded under section 164 of the Code of Criminal Procedure can be relied on for corroborating the statements made by the witnesses in the committal court.
Though the statements made under section 164 of the Code of Criminal Procedure, is not evidenced, it is corroborative of what has been stated earlier in the committal court.
[499 F G] State of Rajasthan vs Kartar Singh, ; followed.
A statement recorded under section 288 of the Code of Criminal Procedure of one witness can corroborate the statement of another witness under section 288.
The statements are treated as substantive evidence in law and there is no flaw in treating the statement of one witness as corroborative of the other.
[500 A B]
|
ivil Appeal No. 2468 of 1982.
From the Judgment and Order dated 8.3.1982 of the High Court of Andhra Pradesh in C.R.P. Nos. 3726, 3727, 3910 and 4883 of 1979.
PG NO 202 Dr. Y.S. Chitale and G. Narasimhulu for the Appellant.
T.S. Krishnamurti Iyer, Krishan Kumar and Rajeshwar Rao for the Respondents.
The Judgment of the Court was delivered by NATARAJAN, J.
This appeal by special leave by a tenant arises out of a common judgment rendered by the High Court of Andhra Pradesh in four Civil Writ Petitions.
Two of the Revision Petitions were filed by the appellant herein and the other two were filed by one Narsimha Murthy, the second respondent herein.
By a common judgment the High Court d_missed all the four revision Petitions.
While Narsimha Murthy has not preferred any appeal the appellant has filed this appeal by special leave to question the legality and propriety of the decree for eviction passed against him on the ground he had unauthorisedly sublet the leased premises to the second respondent for running a hotel.
Originally the building bearing door nos.
7 2 606, 607, 617 and 618 (old door No. 2540) Rashtrapati Road, Secunderabad belonged to one Bhima Rao.
The appellant took the ground floor of the premises on lease in the year 1953 from the said Bhima Rao on a monthly rent of Rs.250 for running a hotel in the name and style of Sharada Bhavan.
In or about September 1967 Bhima Rao conveyed the premises by means of a Deed of Gift to his daughter Manga Devi, the first respondent herein and the appellant duly attorned his tenancy and was paying her the rent.
After August l969 the hotel came to be run by the second respondent instead of the appellant.
As the first respondent had reasons to believe that the appellant had either transferred his rights under the lease or sublet the leased premises to the second respondent, she terminated the tenancy by means of notice with effect from 31st January, l97 l and called upon the appellant to surrender possession thereafter.
The appellant refused to vacate and sent a reply refuting the allegations contained in the notice issued to him.
This led to the first respondent filing a petition under Section 10 of the Andhra Pradesh Buildings (Lease.
Rent and Eviction) Control Act.
1960 (for short the Act ' hereafter) to seek the eviction of the appellant and the second respondent on three grounds viz. (1) wilful default in payment of rent, (2) unauthorised subletting and (3) causing waste to the property.
The Rent Controller ordered eviction on the second and third grounds.
The appellant and the second respondent preferred seperate appeals to the Appellate Authority and both the appeals were dismissed.
Thereafter the two affected parties filed two PG NO 203 revisions each against the dismissal of the appeals and the High Court clubbed all the four revisions and rendered a common judgment dismissing all the revision petitions.
The High Court, however, affirmed the finding of the courts below only on the ground of sub letting and consequently, the sole question for consideration in this appeal is whether the High Court has erred in law in upholding the order for eviction passed by the first two Courts on the ground of sub letting.
Dr. Chitale, learned counsel for the appellant took us through the terms of the agreement Exhibit R 14 entered into between the appellant and the second respondent as well as the relevant portions of the judgments of the Courts below and the High Court and argued that this was a case where the appellant had only transferred the managing rights of the hotel to the second respondent and hence there was no basis or material for the Rent Controller or the Appellate Court to hold that the appellant had sublet the leased premises to the second respondent and therefore the High Court too was in error in confirming the order of eviction passed against the appellant and the second respondent.
The learned counsel further contended that neither the agreement nor the conduct of the parties afforded any ground for taking the view that the appellant had transferred his rights under the lease or had sublet the premises to the second respondent, and on the other hand there was adequate material to show that the appellant had retained his rights in the leased premises notwithstanding his placing the hotel business in the hands of the second respondent.
To substantiate these contentions Dr. Chitale laid stress on certain clauses in the agreement which seek to emphasise that the transfer of rights pertained to the business alone and not the leasehold rights of the appellant in the leased premises.
The clauses referred to are as follows.
Clause 2 sets out that the first party (the appellant) 'has agreed to allow the second party (the second respondent) to manage the said Sharada Bhawan with all the furniture etc.".
Clause 7 interdicts the second party from permitting "the use of the premises for any purpose other than that for which it is being used viz. as a vegetarian restaurant" without the consent in writing of the first party.
Clause 8 enjoins the second party to "maintain the standard and reputation which the said business has earned and acquired".
Clause 9 prohibits the second party from assigning or underletting or otherwise parting with the business without the permission in writing of the first party.
Clause 11 stipulates that the second party shall observe all the rules and regulations governing the licences granted to the first party by the Municipality, Police etc.
and further sets out that if any breach is committed by the PG NO 204 second party he should indemnify the first party.
Under Clause 13 the first party has reserved a right to inspect the business at all reasonable times to satisfy himself that The second party was fulfilling the conditions set out in the agreement.
Clause 15 provides that on the expiry of the agreement the second party should "peacefully and quietly surrender and hand over possession of the business to the first party together with all the furniture, fixtures, utensils etc.
" Clauses 16 and 17 are of significance for both parties and, therefore, they are extracted in full: "Clause 16 The lease of the premises wherein the said business is being run, shall continue to be enjoyed exclusively by the first party at all times, and first party shall be liable to pay the monthly rent of Rs.250 or any other enhanced rent that may be Agreed upon between the first party and the landlord and in such event the second party shall pay to the first party the difference between the present rent of Rs.250 and the enhanced rent along with the monthly amounts payable vide clause (2) hereof, and shall observe faithfully all terms and conditions of the agreement of tenancy between the first party and the owner of the premises.
It is clearly understood and agreed this agreement is only with respect to the running of the said business on a "MUNAFA" basis to the second party and not subletting or underletting of the premises housing the said business.
Clause 17 The essence of this agreement is that the second party shall run the said business on his own account making use of the existing property such as furniture, fixture, etc.
which continue to belong to the first party with out any proprietory rights or interest to the second party on any of the said property.
It is distinctly understood and agreed between the parties here to that the second party shall not be entitled to obtain any credit or accommodation from any third party on the security of the said business.
The parties hereto agree that the second party shall carry on the said business on his own account and responsibility and the first party shall not be liable in any manner or to any extent in respect of the second party 's liabilities arising out of his running the said business or otherwise.
" Placing reliance on these clauses it was seriously canvassed on behalf of the appellant that the agreement was PG NO 205 explicit in its terms and there was no ambiguity and as per the terms the transfer effected was only the business of running the hotel and not the appellant 's interest in the leased property and no sub tenancy was created in favour of the second respondent.
The appellant 's counsel urged that in almost identical circumstances this Court has held in Md. Salim vs Md. Ali, ; that the transfer effected was only the right to manage the business run by the lessee and there was no transfer of any interest of the lessee in the business premises.
It was the further contention of Dr. Chitale that in all such cases the Courts must look to the dominant intention of the parties while effecting the transfer to find out whether the transfer amounted to a sub letting of the leased premises.
A reference was made to the decision in Dwarka Prasad vs Dwarka Das Saraf; [ 19761 1 SCR 277 in this behalf.
Disputing the contentions of Dr.
Chitale Mr. Krishnamurthy Iyer, learned counsel appearing for the first respondent, stated that the intention of the parties and the true nature of the transaction between them was the handing over of the hotel on a permanent basis to the second respondent together with the tenancy rights of the appellant.
Mr. Iyer said that for obvious reasons the parties had to camouflage the real nature of the transaction, by making it appear that the managing rights of the business alone were transferred but the truth could not be suppressed and hence the lower courts had rightly held that the transfer had all the trappings of sub letting and the appellant was therefore liable for eviction.
It was urged that in view of the concurrent findings rendered against the appellant by the Rent Controller and the Appellate Authority, the High Court could have very well declined to go into the merits of the findings without reappraisal of the evidence but even so the High Court had given the appellant the indulgence of a detailed examination of the evidence for itself and has after such exercise confirmed the findings of the Courts below and as such, there is no need or justification for any further examination the contentions of the appellant.
The learned counsel submitted that if nevertheless the case of the appellant has to be considered once ever again, then the agreement.
though subtly worded, provided adequate material to show that the transfer of the business had brought about a subletting of the premises also.
The manner in which the hotel had been run by the second respondent, it was added, afforded additional material to prove the factum of sub letting of the premises.
Krishnamurthy Iyer drew our attention to several terms in the agreement, to which we PG NO 206 shall advert to in due course, to substantiate his contentions.
The learned counsel also placed for our consideration a decision of Alagiriswamy, J., as he then was, in M. Rodgers vs Prakash Rao Naidu, and of this court in Bhagwan Das vs Rajeev Singh, Since both the parties lay emphasis upon the terms of the agreement to support their respective contentions, it is necessary that we look into the terms of the agreement for ourselves.
The preamble sets out that the terms "first party" and "second party", cannoting the appellant and the second respondent, will wherever the context permits include their heirs, successors, administrators and assigns.
The agreement would say that the first party, as the owner of the vegetarian restaurant "Sharada Bhawan" has agreed to allow the second party to manage the said hotel with all the furniture etc.
The agreement is for a period of eleven months from the 1st day of September 1969 and thereafter the same could be renewed or extended for any further period by mutual consent except in the event of the first party being evicted, in which event the second party would not be entitled to any compensation for any loss or damage caused to him by reason of the eviction.
Clause 2 provides that "in consideration of obtaining on hire on munafa basis of the business together with all the furniture etc.
the second party should pay to the first party a sum of Rs.750 per month during the period of first eleven months and thereafter at the rate of Rs.900 per month during the subsequent renewed or extended period.
" As per Clause 3 the second party should pay all taxes, tees, rates and other statutory outgoings in respect of the business and ii any loss is caused to the first party by non payment, the latter was entitled to recover all such charges from the second party and would also be entitled to cancel or terminate the agreement forthwith.
According to Clause 4 the second party was responsible for not only payment of all expenses and charges relating to the running of the business but also for carrying out "repairs to business premises, painting, colour wash.
and the like".
The same Clause empowers the second party to appoint, dismiss, promote or otherwise deal with all members of the staff and employees of all categories ' ' and makes him liable for all claims and demands relating to the period covered by the agreement. ' Clause 7 prohibits the second party from using the premises for any purpose other than for running a vegetarian restaurant without the consent of the first party.
Clause 9 interdicts the second party from assigning or under letting or otherwise parting with the business without the written permission of the first party.
Clause 13 stipulates that the second party should allow the first party to inspect the business at all reasonable times to satisfy himself that the PG NO 207 second party was fulfilling the conditions governing the agreement.
Clause 15 sets out that "the second party shall on the expiry of the agreement peacefully and quietly surrender and hand over possession of the said business to the first party with all the furniture and fixtures, utensils, etc.
" Clause 16 which has already been extracted states that the lease of the premises shall continue to be enjoyed exclusively by the first party at all times, and the first party shall be liable to pay the monthly rent of Rs.250 or any other enhanced rate that may be agreed upon between the first party and the landlord and in such an event the second party shall pay to the first party the difference between the present rent of Rs.250 and the enhance rent along with the monthly amounts payable by him.
There is an explanatory clause stating that the agreement is only with respect to the running of the business and not to any subletting or underletting of the premises.
Clause 17 stipulates that the business was to be run by the second party on his own account making use of the existing property such as furniture, fixture etc.
belonging to the first party without any proprietory rights or interest and that the second party was not entitled to obtain any credit or accommodation from any third party on the security of the business and that he was to run the business on his own account and responsibility.
Clause 18 makes the second respondent solely responsible for any consequences arising out of non compliance with the orders passed by the competent authorities or for contravention of any of the provisions of the laws in force Clauses 19 and 20 provide for the second respondent furnishing a cash security of Rs.5000 and the first respondent being entitled to reimburse himself from out of the deposit amount any loss or damages suffered by him on account of any default committed by the second party On a reading of the various provisions of the agreement unable to accept the contentions of the appellant that what was transferred was only the hotel business and not the appellant 's interest in the leased premises as a lessee.
Though the agreement is initially for a period of 11 months the renewal clause would enable the parties to go on extending the lease for any length of time and as per the preamble such extensions of lease would be binding upon the heirs, successors, administrators and assigns of both parties.
The appellant had handed over the furniture, utensils etc.
to the second respondent and received a sum of Rs.5,000 as security and he was entitled to reimburse himself for any loss or damage caused to the furniture and the utensils.
Though the agreement states that the appellant will continue to be the lessee of the property it is obvious that the rent of Rs.250 per month was really to be paid by PG NO 208 the second respondent through the appellant.
There is a specific provision in Clause 16 that in the event of the landlord enhancing the rent, the second respondent should pay "the difference between the present rent of Rs.250 and the enhanced rent along with the monthly amounts payable as per clause 2.
" It is therefore patent that the burden of paying the rent has been passed on to the second respondent and this can occur only if the premises had been sublet to him.
The agreement confers proprietory rights on the second respondent over the hotel business inasmuch as he is made the sole authority to appoint the staff as well as terminate their services and also take disciplinary action against them.
He is empowered to run the business on his own account and responsibility so long as he pays the appellant a sum of Rs.750 per month or the first eleven months and thereafter a sum of Rs.900 per month All the taxes, fees, rates and other statutory outgoings are to be paid by the second respondent himself.
Even the cost of effecting repairs to the business premises and painting and colour washing etc.
are to be borne by him alone.
Clauses 7 and although appearing to interdict the second respondent from changing the user of the premises or from assigning or subletting the business, really permit him to do so, if he obtains the consent or permission in writing of the appellant.
If what was transferred to the second respondent was only the right to manage the hotel business, it is incomprehensible that he would be called upon to effect repairs to the leased premises or to undertake painting, colour washing etc.
at his own expense.
Similarly the question of the second respondent changing the user of the premises or assigning or subletting or parting with the business with the written consent or the appellant will not arise if his rights under the agreement were restricted to the management of the business alone.
Clause 15 is curiously worded because it speaks about the second respondent peacefully and quietly surrendering and handing over possession of the business to the first party with all the furniture, fixtures, utensils etc. ' ' The clause would show that what was really meant was surrendering the possession of the building but in order to conceal matters, the word 'business has been used in the place of 'building '.
On a conspectus of all the terms of the agreement we feel that the High Court was fully justified in taking the view that the appellant and the second respondent had used all the ingenuity at their command to camaflouge the real nature of the transaction and make it appear that there was only a transfer of the managing rights of the business and not a transfer of the business in toto together with the right to occupy the leased premises The clauses on which the appellant 's counsel placed reliance to project the PG NO 209 appellant 's case are only make believe clauses which have been introduced with a design and purpose viz. to conceal the real nature of the contract so that the landlord may not seek the eviction of the appellant on the ground of subletting the premises.
In spite of the introduction of a few cleverly worded clauses the other clauses are self revealing and go to show that the parties were fully aware of the vulnerability of their action and the risk of eviction ensuing therefrom.
It is on account of such awareness the appellant has carefully provided in the agreement that in the event of his being evicted from the premises he will not be liable to pay any compensation for any loss or damage resulting to the second respondent.
Besides the agreement, the manner in which the second respondent had been conducting the business would also show that he was not a transferee of the managing rights alone but he was a transferee of the business together with the appellant 's interest in the leased premises also.
The business turnover increased from Rs.200 to 250 per day to Rs.700 to 800 per day.
The second respondent was assessed to income tax and sales tax in his own name as the proprietor of Sharada Bhawan and not as the manager of the hotel.
He was recognised as the proprietor of the hotel and admitted to membership of the Hotel Owner 's Association.
He exercised absolute control over the business and over the members of the staff and was the sole authority to appoint them or terminate their services or take disciplinary action against them.
He was not bound to render accounts to the appellant or share with him the profits or losses of the business.
He became solely responsible to bear all the expenses and to pay all the taxes, public charges etc.
Thus even the conduct of the parties afford material to conclude that what was transferred to the second respondent was much more than the right to run the hotel business for a limited period.
It is therefore futile for the appellant to say he had not parted with his interests in the leased premises to the second respondent.
As regards the decisions cited by Dr. Chitale we do not think that either of them can advance the appellant s case m any manner.
In Md. Salim vs Md. Ali (supra) the facts were perceptibly different.
That was also a case where the right of management of a shop run by a tenant was conferred on one Md. Salim and it was agreed between the parties that from out of the amount paid by Md. Salim, the lessee was to pay the rent to the landlord.
The agreement, however, expressly stated that the transferer will remain the proprietor of the business, and that the licence for the business should stand in his name and that after a period of two years the transferee will restore the business along with the articles PG NO 210 in good condition to the transferor.
The transfer agreement had been attested by the landlord himself.
It was on these facts it was decided in that case that there was no transfer of interest in the business premises and what was transferred was only the right to manage the business.
In the present case the agreement provides for the second respondent being allowed to run the business for any length of time as his own proprietory concern and to have all the benefits exclusively for himself.
In the other case of Dwarka Prasad (supra) the court dealt with the application of the ' dominant intention" test with reference to the facts of that case.
The question in there was whether a cinema theatre equipped with projectors and other fittings and ready to be launched as an entertainment house was "accommodation", as defined in Section 2(1)(d) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, and if so, whether the Act "barricades eviction by the landlord because the premises let constitutes an accommodation" It was in that context the Court observed that where the lease is composite and has a plurality of purpose the decisive test is a dominant purpose of the demise.
There is no occasion in this case for the test of 'dominant intention being applied because there was and there can be no lease of the managing rights of the hotel business as such and on the contrary what was transferred was an outright transfer of the hotel together with the furniture, equipment etc.
as well as the lease hold right of the erstwhile hotelier in the leased premises.
The facts of this case bear a close similarity to the facts noticed in Bhagwan Das v .S.
Rajdev Singh, (supra) That was a case where the premises let out to one Usha Sales was put under the occupation of one Bhagwan Das and when the landlord sought the eviction of the tenant on the ground of sub letting the plea raised was that Bhagwan Das had been appointed as an agent by Usha Sales for displaying and selling the protect o Usha Sales and Bhagwan Das was in the occupation of the premises on his own behalf for the purposes of his business as an agent.
The Court after perusing the agreement entered into between Usha Sale and Bhagwan Das held that the appellant was given complete control and supervision of the premises, and that the agreement was a curious mixture of inconsistencies and was plainly a clumsy attempt to camouflage the sub tenancy which was intended to be created thereby.
The facts of the present nt case, have a striking similarity to the facts noticed in that case and.
therefore, the same conclusion should be reached in this case also.
Besides the above said decision Mr. Iyer referred us to a decision of the Madras High Court in M. Rodgers vs N. Prakash Rao Naidu.
(supra) where a tenant who was running a printing press in a leased building stopped the business and the manager began running the press as the lessee of the machinery without the tenant having any PG NO 211 share in the business.
On the landlord sueing the tenant for eviction on the ground of subletting, the High Court held that since the machinery cannot be run unless it is placed in the premises where it is situated, the lessee of the machinery would get the advantage of the use of the business premises also and as such the lease amount stipulated for the lease of the machinery would also include the lease amount payable for the building and hence the transaction would clearly amount to the lessee subletting the building simultaneously with the leasing out of the machinery.
The present case warrants the same view being taken especially in the light of the recitals in the agreement which stipulate that the amount payable by the second respondent would comprise in it the rent payable by the appellant landlord for the leased premises.
At the end of the arguments it was represented at the bar that the second respondent has since vacated the premises and handed over the business to the appellant and that the appellant himself is now running the hotel through his son.
We do not think the changed circumstances can affect the rights of the first respondent in any manner to have the appellant evicted on the ground of subletting.
In the light of our conclusions, the appeal fails and is dismissed.
However, having regard to the fact that the appellant would require some time to find an alternate place to shift his hotel, he is granted six month 's time from today to vacate the premises subject to his filing an undertaking within four weeks from today on the usual terms.
There will be no order as to costs.
R.S.S. Appeal dismissed.
| In the ceiling proceedings under the Maharashtra Agricultural Land (Ceiling on Holdings) Act, 1961 the petitioner alleged that there was no surplus land in the holding of his family Unit as certain lands had been leased out to various tenants and the same had been transferred to them under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 and, therefore, the tenanted lands should be excluded from his total holdings as the orders of the Tenancy Authorities had become final and were binding on the Ceiling Authorities.
Rejecting the claim of the petitioner the sub Divisional officer held that the orders passed by the Tenancy Courts conferring tenancy rights and issuing certificates in favour of the tenants were not justified and declared 58.28 acres of land as surplus.
This finding was maintained by the Revenue Tribunal.
The challenge made by the petitioner before the Single Judge as well as the Division Bench of the High Court also failed.
In the special leave petition under Article 136 of the Constitution to this Court, on behalf of the petitioner it was contended that in view of sub section
(2) of section 100 of the Bombay Act, the Tenancy Tahsildar had exclusive jurisdiction to decide the issue of tenancy, and section 124 of the Bombay Act bars the jurisdiction of the Civil Court to deal with any question covered by section 100 and, therefore, determination of the question of tenancy by the Ceiling Authorities was without jurisdiction.
Dismissing the Special Leave Petition, this Court, HELD: l. Land had been transferred to the various tenants under the Bombay Tenancy & Agriculture (Vidarbha Region) Act, 1958 in the name of the respective tenants by the order of the Tenancy Tahsildar.
[272F] PG NO 270 PG NO 271 2.The Ceiling Authority had to determine the land holdings of the petitioner.
[274C] 3.Where a transfer is made by the land holder creating a tenancy, whether the transfer was made bona fide or made in anticipation to defeat the provisions of the Ceiling Act, is a question which falls for determination squarely by the Ceiling Authorities, to give effect to or implement the Ceiling Act.
[274C D] 4.
Unless the Acts, the Ceiling Act and the Tenancy Act, with the intention of implementing various socio economic plans, are read in a complementary manner, the operation of the different Acts in the same field would create contradiction and would become impossible.
It is, therefore, necessary to take a constructive attitude in interpreting provisions of these types and determine the main aim of the particular Act in question for adjudication before the Court.
[274E F] 5.
In the Ceiling Proceedings it has been held that the transfer to the tenant was not bona fide and was done in anticipation of the Ceiling Act.
This Court finds no ground to interfere with the Order of the High Court.
[275A]
|
Civil Appeal No. 774 of 1966.
Appeal by special leave from the judgment and decree dated August 31, 1965 of the Punjab High Court in Letters Patent Appeal No. 91 of 1961.
Harbans Singh, for the appellant.
804 Bishan Narain and S.K. Mehta, for the respondent.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from a judgment of a division bench.
of the Punjab High Court decreeing the suit filed by the respondent for possession of certain land by preemption.
The facts may be shortly stated: Santa Singh was the owner of some land in village Samadh Bhai, tehsil Moga.
He died leaving a widow Smt.
Sobhi.
He also left a daughter Smt.
Jai Kaur from his other wife.
On February 3, 1958 Smt.
Sobhi sold 73 kanals 14 marlas of land to the appellants, the sale consideration mentioned in the sale deed being Rs. 8,000/ .
Jai Kaur filed a suit for possession by pre emption of the land which had been sold by Smt.
Sobhi.
According to her a consideration of Rs. 4,000/ only had been paid by the vendee.
The trial court decreed the suit in May 1959 granting a decree for possession on payment of Rs. 6,500/ together with costs.
The second Additional Judge to whom an appeal was taken dismissed it.
In the High Court the learned Single Judge took the view that Smt.
Jai Kaur not being the daughter of the vendor Smt.
Sobhi had no right of pre emption under section 15(2) of the Punjab Pre emption Act, 1913 'as amended by the Punjab Pre emption Amendment Act, 1960.
The suit was dismissed.
Jai Kaur filed an appeal under clause 10 of the Letters Patent of the High Court.
Relying on an amendment made by the Punjab Pre emption Amendment Act 1964 in the first paragraph of clause (b) of sub section
(2) of section 15 of the Punjab Pre emption Act, hereinafter called the Act, the Division Bench reversed the judgment of the Single Judge and decreed the plaintiff 's suit.
The relevant provisions of the statute may now be noticed together with the amendments made in 1960 and 1964.
Section 15 of the Act was substituted by section 4 of the Amendment Act, 1960.
According to the substituted section the right of pre emption in respect of agricultural land and village immovable property shall vest thus : (1) (2) Notwithstanding anything contained in sub section (1) (a) where the sale is by a female of land or property to which she h,as succeeded through her father or brother or the sale in respect of such land or property is by the scan or daughter of 805 such female, after inheritance, the fight of preemption shall vest, (i) if the sale is 'by such female, in her brother or brother 's son; (ii) if the sale is by the son or daughter of such female, in the mother 's brother or the mother 's brother 's sons of the vendor or vendors;" By the Amendment Act 1964 in the first paragraph of section 15(2) (b) between the words "such" and "female" the words "husband of the" were inserted.
The result was that after the amendment the portion of clause (b) relevant for our purpose was to read as follows: "FIRST, in the son or daughter of such husband of the female.
" Now if the Amendment Act of 1964 could be regarded as having retrospective operation so as to affect pending proceedings there can be no dispute that the judgment of the division bench was light and must be affirmed.
The contention which has been raised on behalf of the appellants is that.
there is no indication in the Amendment Act of 1964 that it was to have retrospective operation and therefore the 'amendment made by it should be deemed to be only prospective.
It may be mentioned that by section 6 of the Amendment Act of 1960 a new section 31 was inserted in the Act.
That section provided, "no court shall pass a decree in a suit for pre emption whether instituted be,fore or after the commencement of the Punjab Pre emption Amendment Act of 1960 which is inconsistent with the provisions of the said Act." in Ram Sarup vs Munshi & Ors.(1) this Court held that the language used in section 31 was comprehensive enough so as to require an appellate court to give effect to the substantive provisions of the Amending Act whether the appeal before it was one against a decree granting pre emption or one refusing that relief.
Although section 31 was inserted in the Act for all times the phraseology employed therein does not show that its language was meant to cover those amendments which would be made subsequent to the Amendment Act of 1960.
The word "said" can have reference in the context only to the enactment of 1960 and to no other.
it would not be legitimate for the courts to give an extended effect to a provision used and words employed warranted such a course being followed.
That does not appear to be the case here.
It appears to us that the Amendment Act of 1964 was merely of a clarificatory or declaratory nature.
Even in the absence of the words which were inserted by the Amendment Act of 1964 in section 15(2)(b) the only possible interpretation and meaning of (1) ; 806 the words "in the son or daughter of such female" could have reference to and cover the sort or daughter of the husband of the female.
The entire scheme of sub section
(2) of section 15 is that the right of pre emption has been confined to the issues of the last male holder from whom the property which has been sold came by inheritance.
Looking at clause (a) of sub section
(2) where the properly which has been sold has come to the female from her ,father or brother by succession the right of pre emption has been given to.
her brother or brother 's son.
As has been observed in Mota Singh vs Prem Parkash Kaur & Ors.(1), the predominant idea seems to be that the property must not go outside the line of the last male holder and the right has been given to his male linea descendants.
Where the sale is by the son or the daughter of such female the right is given to the mother 's brother or their sons.
The principle which has been kept in view is that the person on whom the right of pre emption is conferred must be a male lineal descendant of the last male holder of the property sold.
This is so with regard to clause (a) of sub section
Coming to clause (b) where the sale is by a female of land or property to which she has succeeded through her husband or through her son in case the son has inherited the same from his father the right of pre emption is to vest firstly in the son or daughter of such female and secondly in the husband 's brother or husband 's brother 's son of such female.
Now if the son or daughter of the female who has sold the property could refer to her son or daughter from a husband other than the one from whom the property devolved on her, it would be contrary to the scheme and purpose of sub section
(2) which essentially is to vest the right of pre emption in the lineal descendants of the last male holder.
Similarly it is unthinkable that a husband 's brother or husband 's brother 's son should have reference to a husband to whom the property never belonged.
In other words it could never be intended that if a female has had a previous husband who has either died or with whom the marriage has been dissolved and the female has remarried and succeeded to the property of her second husband the brother or the brother 's son of her previous husband should be able to claim the right of pre emption when they had nothing whatsoever to do with the property sought to be preempted.
It would follow that under clause (b) the right of preemption would vest firstly in the son or daughter of the husband of the female meaning thereby either her own off spring ,from the husband whom she has succeeded or the son or daughter of that husband even from another wife.
If the above discussion is kept in view there is no difficulty in attributing a retroactive intention to the legislature when the Amendment Act of 1964 was enacted.
It is well settled that if a (1) I.E.R. [1961] Punj.
807 statute is curative or merely declares the previous law retroactive operation would be more rightly ascribed to it than the legislation which may prejudicially affect past rights and transactions.
We are in entire agreement with the following view expressed in a recent full bench decision of the Punjab High Court in Moti Ram vs Bakhwant Singh & Ors.
(1) in which a similar point came up ,for consideration: "A close analysis of paragraphs (First) and (Secondly) of clause (b) of sub section (2) of section 15 before the amendment introduced by Punjab Act 13 of 1964 would demonstrate that a son of the husband of a female vendor though not born from her womb would be entitled to preempt, particularly when the husband 's brother and even the son of the husband 's brother of that female are accorded the right of preemption.
To reiterate, the right of preemption is accorded manifestly on the principle of consanguinity, the property of the female vendor 'being that of her husband, and there is no reason why the step son should be excluded and the nephew of the husband included.
From this alone it must be inferred that the Legislature had intended to include a step son and consequently retrospective operation had to be given to the amending Act as such a construction appears to be in consonance 'and harmony with the purpose of the Act".
The result, therefore, is that the respondent was entitled to.
exercise, her right of preemption under paragraph First of cl.
(b) of sub section
(2) of section 15 even before the amendment made in 1964.
At any rate whatever doubts existed they were removed by the Amendment Act of 1964 which must be given retrospective operation.
The appeal consequently fails and it is dismissed with coats.
R.K.P.S. Appeal dismissed (1) I.L.R.[19681] Punjab 104, 120.
| Uttar Pradesh Food grains (Futures and Options Prohibition) Order, 1951, made it illegal and a punishable offence for any person to enter into any futures in pulses other than gram, or to pay or receive or to agree to pay or receive any margin relating to such futures.
By section 9 of that Order the Order of 1945 containing similar provisions was repealed.
An application under article 32 of 839 the Constitution presented by several persons (including the present petitioners) for the enforcement of their fundamental right under article 19(1)(g) of the Constitution to carry on their business and restraining the State from enforcing the Order of 1951 in so far as it related to pulses other than gram and for a declaration that section 2(a) of the Order read with items 6, 7, 8 and 9 of the schedule thereto was illegal and ultra vires the State Government ' succeeded in the Supreme Court and the State of Uttar Pradesh was directed by the Supreme Court by its judgment dated the 15th 'day, 1952, to abstain from giving effect to it.
On the 10th June, 1953, a letter (Exhibit B to the petition) was addressed by the Deputy Commissioner, Food, Uttar Pradesh, to all Regional Food Controllers and Deputy Food Controllers and all District Magistrates in Uttar Pradesh instructing them to regard all futures in foodgrains mentioned in the Schedule to the 1945 Order including pulses other than gram as punishable.
It was contended on behalf of the State (1) that section 3 of 1946 Act which reproduced section 3 of the 1946 Ordinance conferred on the Central Government extensive powers to control production, supply, distribution of and trade and commerce in essential commodities and this power was delegated by the Central Government to the Provincial Government by notification dated 21st October, 1946, under section 4 of the 1946 Ordinance.
The subsequent amendments made by two Notifications dated 5th March, 1947, and dated 15th November, 1947, withdrew the power so delegated only with respect to "edible oils and oil seeds and pulses other than gram" and such withdrawal was only with regard to production, supply, and distribution of those commodities but was not with regard to trade and commerce therein; (ii) that the Order of 1951 having been declared ultra vires, the Order of 1945 which was continued by section 5 of the Ordinance of 1946 and then by section 17 of the Act of 1946 was still in force.
Held, (repelling the contentions) (i) that as the Order of 1945 ceased to have effect with regard to the price, production, distribution and movements of those commodities, that Order could not in any way continue to regulate or control trade or commerce in those commodities and the two Notifications of 1947 quite effectively superseded the Order of 1946 so far as it purported to regulate or control the price, production, distribution and movement of or trade and commerce in edible oils and oil seeds and pulses other than gram; (ii) that the Order of 1951 was not declared ultra vires and invalid in its entirety by the judgment of the Supreme Court dated 15th May, 1952.
The Order was declared invalid in so far as it purported to restrict the dealings in edible oils and oil seeds and pulses other than gram.
The rest of the Order of 1951 and in particular section 9 thereof by which the Order of 1945 had been withdrawn, remained unaffected by the judgment of the Supreme Court.
840 Strong disapproval was expressed by the Supreme Court of the wholly unwarranted attitude adopted by the officers of the State of Uttar Pradesh in circumventing the decision of the Supreme Court on a flimsy pretext.
The contentions advanced on behalf of the State Government should have been advanced before the Supreme Court on the previous occasion when it delivered its judgment dated 15th May, 1952, or the matter should have been brought before the Supreme Court by way of review if any review was competent.
|
ivil Appeal No. 387 of 1963.
Appeal by special leave from the judgment and order dated February 14, 1962, of the Mysore High Court in Writ Petition No. 916 of 1959.
C.K. Daphtary, Attorney General for India, R. Gopalalkrishnan and B.R.G.K. Achar for P.D. Menon, for the appellant.
Naunit Lal, for the respondent.
August 22, 1963.
The Judgment of the Court was delivered by SUBBA RAO J.
This appeal by special leave is preferred against the Order of a Division Bench of the High Court of Mysore at Bangalore quashing the order of the 542 Government dated March 13, 1957 dismissing the respondent from service.
In the year 1957 the respondent was holding the post of an Assistant to the Additional Development Commissioner, Planning, Bangalore.
On June 25, 1957, the Government of Mysore appointed Shri G.V.K. Rao, I.A.S., Additional Development Commissioner, as the Enquiry Officer to conduct a departmental enquiry against him in respect of false claim for allowances and fabrication vouchers to support them.
After giving the usual notice, the said Enquiry Officer framed four charges against him.
After making the necessary enquiry in accordance with law the said Enquiry Officer submitted his report to the Government with the recommendation that the respondent might be reduced in rank.
After considering the report of the Enquiry Officer, the Government issued to him a notice calling upon him to show cause why he should not be dismissed from service.
The relevant part of the said show cause notice reads as follows: "The Inquiry Authority has recommended that you may be reduced in rank.
As the charges proved against you are of a very grave nature and are such as render you unfit to remain in Government Service, and the Government consider that a more severe punishment is called for in the interest of public service, it is proposed to dismiss you from service.
" The respondent made representation to the effect that the entire case had been foisted on him.
After considering the representations of the respondent, the Government passed an order on January 6, 1959 dismissing him from service.
As the argument turns upon the terms of this order, it will be convenient to read the material part thereof: "Government have carefully considered the report the enquiry, the explanation of Shri Manche Gowda and the opinion furnished by the Mysore Public Service Commission.
There is no reasonable ground to accept the version of Shri Manche Gowda that the entire case has been deliberately foisted on him.
The evidence on record shows conclusively that the charges framed are fully proved." "As regards the quantum of punishment, Government 543 have examined the previous record of the Officer and have given careful consideration to the recommendation of the Public Service Commission.
Shri Manche Gowda was recruited directly as a Gazetted Officer.
He had been punished twice first, in Government Order No. SD 19 16/A:17.
53 12, dated 1 4 1954, for making false claims of T.A. and tampering with the accounts and ledgers of Food Depot and again, in Government Order No. 40 MSC 57, dated 13th March 1957 for not having credited to Government certain sums of money which he had collected from the Office Staff.
Yet he failed to learn a lesson; he had indulged in similar offences.
It is clear that he is incorrigible and no improvement can be expected in his conduct.
In the circumstances a reduction in pay and continuance of the Officer in Government Service, as recommended by the Public Service Commission, is no remedy.
Having regard to the status of the Officer and the nature of the charges proved against him, Government have come to the conclusion that he is unfit to continue in Government service and direct that he may be dismissed from service forthwith.
" It will be seen from the said Order that the reason for giving enhanced punishment above that recommended by the Inquiry Officer as well as by the Service Commission was that earlier he had committed similar offences and was punished once on April 1, 1954 and again on March 13, 1957.
In the second notice those facts were not given as reasons for the proposed punishment of dismissal from service.
The respondent filed a petition in the High Court under article 226 of the Constitution for quashing the said order and the High Court quashed the order of dismissal on the ground that the said two circumstances on which the Government relied for the proposed infliction of punishment of dismissal were not put to the petitioner for being explained by him, in the show cause notice, which was issued to the petitioner on February 4, 1958.
The impugned order was accordingly set aside leaving it open to the State Government to dispose of the matter afresh if it desired to do so after compliance with the requirements of article 311(2) of the 544 Constitution.
Hence the appeal.
Learned Attorney General contends that the Government is entitled to take into consideration the previous record of a Government servant in awarding punishment to him and it is not incumbent on it to bring to the notice of the Government servant the said fact in the second notice.
Alternatively, he argues that whether a Government servant has had a reasonable opportunity of being heard or not, being a question of fact in each case, and in the instant case as the Officer concerned had knowledge of his two earlier punishments which formed the basis of the enhanced punishment, he was not in any way prejudiced by their non disclosure to him in the second notice and, therefore, the principles of natural justice were not violated.
Mr. Naunit Lal, learned counsel for the respondent, says that a Government servant cannot be punished for his acts or omissions unless the said acts or omissions arc subject of specific charges and are enquired into in accordance with law and that, in any view, even if the Government could take into consideration a Government servant 's previous record in awarding punishment, the facts that form the basis of that punishment should at least be disclosed in the second notice giving thereby an opportunity to the said Government servant to explain his earlier conduct.
The material part of article 311(2) of the Constitution which 'embodies the constitutional protection given to a Government servant reads thus: "No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him." Section 240(3) of the Government of India Act was pari materig with the said clause of the Article of the Constitution.
That section fell to be considered by the Federal Court in Secretary of State for India vs I. M. Lall(1).
In considering that sub section, Spens C.J , speaking for the majority of the Court, made the following remarks relevant to the present enquiry: "It does however seem to us that the sub section (1) , 139.
545 requires that as and when an authority is definitely proposing to dismiss or to reduce in rank a member of the civil service he shall be so told and he shall be given an opportunity of putting his case against the proposed action and as that opportunity has to be a reasonable opportunity, it seems to us that the section requires not only notification of the action proposed but of the grounds on which the authority is proposing that the action should be taken, and that the person concerned must then be given reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken . . . .
In our judgment each case will have to turn on its own facts, but the real point of the sub section is in our judgment that the person who is to be dismissed or reduced must know that punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment should not be imposed.
This judgment was taken in appeal to the Privy Council, and the Judicial Committee, after quoting in extenso the passage just now extracted by us from the Federal Court judgment, expressed its agreement with the view taken by the majority of the Federal Court.
This Court Khem Chand vs The Union of India(1) also emphasized upon the importance of giving a reasonable opportunity to a Government servant to show that he does not merit the punishment proposed to be meted out to him.
Das C.J., speaking for the Court, observed: "In addition to showing that he has not been guilty of any misconduct so as to merit any punishment, it is reasonable that he should also have an opportunity to contend that the charges proved against him do not necessarily require the particular punishment proposed to be meted out to him.
He may say, for instance, that although he has been guilty of some misconduct it is not of such a character as to merit the extreme punishment of dismissal or even of re (1) ; , 1096.
546 moval or reduction in rank and that any of the lesser punishments ought to be sufficient in his case.
" The relevant aspect of the case has been neatly brought out by the Nagpur High Court in Gopalrao vs State(1).
There, as here, the previous record of a Government servant was taken into consideration in awarding punishment without bringing the said fact to his notice and giving him a reasonable opportunity of explaining the same.
Sinha, C.J. speaking for the Court, observed: "Normally, the question of punishment is linked up with the gravity of the charge, and the penalty that is inflicted is proportionate to the guilt.
Where the charge is trivial and prima facie merits only a minor penalty,, a civil servant may not even care to defend himself in the belief that only such punishment as would be commensurate with his guilt will be visited on him.
in such a case, even if in the show cause notice a more serious punishment is indicated than what the finding of guilt warrants, he cannot be left to guessing for himself what other possible reasons have impelled the proposed action.
It is not, therefore, sufficient that other considerations on which a higher punishment is proposed are present in the mind of the competent authority or are supported by the record of service of the civil servant concerned.
In a case where these factors did not form part of any specific charge and did not otherwise figure in the departmental enquiry, it is necessary that they should be intimated to the civil servant in order to enable him to put up proper defence against the proposed action." Randhir Singh J. of the Allahabad High Court, in Girja Shankar Shukla vs Senior Superintendent of Post Offices, Lucknow Division, Lucknow(2), distinguished the case thus: "In the present case, however, those punishments were taken into consideration which are not only within the knowledge of the applicant but which he had suffered earlier . . . . . . .
This is evidently not opposed to any principles of (1) I.L.R. , 94.
(2) A.I.R. 1959 All.
624, 625.
547 natural justice.
" Multiplication of citation is not necessary, as the aforesaid decisions bring out the conflicting views.
Under article 311(2) of the Constitution, as interpreted by this Court, a Government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive.
The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the Government servant must be told of the grounds on which it is proposed to take such action: see the decision of this Court in the State of Assam vs Bimal Kumar Pandit(1).
If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment: he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive.
If the proposed punishment was mainly based upon the previous record of a Government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the Government servant.
It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record.
This contention misses the real point, namely, that what the Government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him.
It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered.
If that fact .was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer (1) ; 548 for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers.
Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry.
He may have many other explanations.
The point is not whether his explanation would be acceptable, but whether he has been given an Opportunity to give his explanation.
We cannot accept the doctrine of "presumptive knowledge" or that of "purposeless enquiry", as their acceptance will be subversive of the principle of "reasonable opportunity".
We, therefore, hold that it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation.
Before we close, it would be necessary to make one point clear.
It is suggested that the past record of a Government servant, if it is intended to be relied upon for imposing a punishment, should be made a specific charge in the first stage of the enquiry itself and, if it is not so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment.
An enquiry against a Government servant is one continuous process, though for convenience it is done in two stages.
The report submitted by the Enquiry Officer is only recommendatory in nature and the final authority which scrutinizes it and imposes punishment is the authority empowered to impose the same.
Whether a particular person has a reasonable opportunity or not depends, to some extent, upon the nature of the subject matter of the enquiry.
But it is not necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry.
But, nothing in law 549 prevents the punishing authority from taking that fact into consideration during the second stage of the enquiry, for essentially it, relates more to the domain of punishment rather than to that of guilt.
But what is essential is that the Government servant shall be given a reasonable opportunity to know that fact and meet the same.
In the present case the second show cause notice does not mention that the Government intended to take his previous punishments into consideration in proposing to dismiss him from service.
On the contrary, the said notice put him on the wrong scent, for it told him that it was proposed to dismiss him from service as the charges proved against him were grave.
But, a comparison of paragraphs 3 and 4 of the order of dismissal shows that but for the previous record of the Government servant, the Government might not have imposed the penalty of dismissal on him and might have accepted the recommendations of the Enquiry Officer and the Public Service Commission.
This order, therefore, indicates that the show cause notice did not give the only reason which influenced the Government to dismiss the respondent from service.
This notice clearly contravened the provisions of article 311(2)of the Constitution as interpreted by Courts.
This order will not preclude the Government from holding the second stage of the enquiry afresh and in accordance with law.
In the result the appeal is dismissed with costs.
Appeal dismissed.
| The appellants were convicted by the High Court for com mitting three murders.
In this case the High Court considered the testimony of one "Parwati", given by her in the committing court.
She was in eye witness of the occurrence according to her testimony in the committing court.
In the sessions court she resiled from her previous statement before the committing Magistrate and made a definite statement that she had not seen the occurrence.
Her evidence before the committing court was tendered as evidence under section 288 Criminal Procedure Code in the court of sessions.
Her evidence before the committing court was not corroborated in respect of participation in the occurrence by four appellants.
The High Court convicted the appellants on the basis of the statement made by Parwati before the committing Magistrate on the ground that it was substantive evidence which did not require any corrobo ration.
Held, that the evidence of a witness tendered under section 288 of the Code of Criminal Procedure before the Sessions Court is substantive evidence.
In law such evidence is not required to be corroborated.
But where a person has made two contradictory statements on oath it is ordinarily unsafe to rely implicitly on her 590 evidence and the judge, before he accepts one or the other of the statements as true, must be satisfied that this is so.
For such satisfaction it will ordinarily be necessary for the evidence to be supported by extrinsic evidence not only as to the occurrence in general but also about the participation of the accused in particular.
But in a case where even without any extrinsic evidence the judge is satisfied about the truth of one of the statements, his duty will be to rely on such evidence and act accordingly.
Bhuboni Sahu vs The King, A.I.R. 1949 P.C. 257, relied on.
On the facts of this case, it was held that without corrobo ration from extrinsic evidence, the High Court was not justified in acting on the evidence of the only eye witness Parwati, given in the committing court.
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